The Coloured vote constitutional crisis, also known as the Coloured vote case, was a constitutional crisis that occurred in the Union of South Africa during the 1950s as the result of an attempt by the Nationalist government to remove coloured voters in the Union's Cape Province from the common voters' rolls. It developed into a dispute between the judiciary (in particular the Appellate Division of the Supreme Court) and the other branches of government (Parliament and the executive) over the power of Parliament to amend an entrenched clause in the South Africa Act 1909 (the constitution) and the power of the Appellate Division to overturn the amendment as unconstitutional. The crisis ended when the government enlarged the Senate and altered its method of election, allowing the amendment to be successfully enacted.
Background
Before the creation of the Union of South Africa, elections in the Cape Colony were conducted on the basis of the qualified franchise. This meant that the right to vote was limited to men meeting property and literacy qualifications, but not restricted on the basis of race. This differed from the other South African colonies: in Natal the franchise was limited to white men in practice though not in law, while in the Transvaal and the Orange River Colony the franchise was limited by law to white men. The South Africa Act 1909, which was an act of the Parliament of the United Kingdom, unified these four colonies to form the Union but preserved their franchise arrangements unchanged. Section 35 of the South Africa Act 1909 provided that no law could disenfranchise voters in the Cape Province on the basis of race, unless that law was passed by an absolute supermajority of two-thirds of the members of both Houses of Parliament sitting together in a joint session. Section 35 was entrenched by section 152, which provided that neither section 35 nor section 152 itself could be amended without a similar supermajority in joint session.
In 1931, the Statute of Westminster ended the power of the British Parliament to legislate for dominions such as South Africa and gave those dominions the power to repeal or amend British laws in force within their territories. In 1936, the South African Parliament enacted the Representation of Natives Act, 1936, removing "native" (black) voters from the common voters' rolls and allowing them to elect, separately, three members of the House of Assembly (the lower house) instead. Although this act was passed by the required joint-session supermajority, its validity was challenged by an affected voter in the case of Ndlwana v Hofmeyr. The challenge was rejected for a number of reasons, of which the most significant was the Appellate Division's ruling that because Parliament was a sovereign legislative body, courts could not invalidate one of its acts on the basis of the procedure used to pass it.
Separate Representation of Voters Bill
In 1948, the National Party, campaigning on a platform of apartheid, won that year's general election. The following year, Prime Minister addressed the question of coloured voting rights in a speech to Parliament, claiming that coloured voters were corrupt and immature and that they posed a threat to white control in South Africa. The government then sought to echo the 1936 Representation of Natives Act by introducing, in 1951, the Separate Representation of Voters Bill, whereby coloured voters would also lose the right to vote for ordinary constituency members of the House of Assembly and instead elect four members at separate elections. Besides the Nationalists' ideological belief in white supremacy, the bill was also motivated by the electoral power of coloured voters to swing a number of Cape constituencies from the National Party to the United Party.
The bill attracted much opposition both inside and outside Parliament. The United Party leader was against it both because he saw it as a breach of commitments given by earlier National Party leaders and because he believed it would lead coloured people to form political alliances with black and Indian groups opposed to the white control of South Africa. A group of coloured activists formed the National Convention Co-ordinating Committee to oppose the bill within constitutional limits. The Franchise Action Council, a multi-racial organisation, led a campaign of rallies, strikes and civil disobedience. The Torch Commando was founded by white Second World War veterans in response to the bill but expanded into a more general movement against the government's policies.
The National Party did not have enough seats in Parliament to pass the bill with the two-thirds majority in joint sitting that would be required if the entrenchment of sections 35 and 152 was still valid. Based on the ruling in Ndlwana's case (see above) and the principle of parliamentary sovereignty, Malan's government decided to enact it by following the normal parliamentary procedure of a simple majority in each house separately. The Governor-General gave his assent on 15 June 1951 and the act was promulgated on 18 June.
Judgment of the Appellate Division
, , and , four voters affected by the Separate Representation of Voters Act, challenged its validity in the Supreme Court in a case that became known as Harris v Dönges or Harris v Minister of the Interior, as was at the time Minister of the Interior. Initially the case was dismissed by the Cape Provincial Division in a ruling by Judge President de Villiers, with whom Newton Thompson and Gawie Steyn concurred. The court followed the precedent of Ndlwana v Hofmeyr to rule that it had no authority to question the validity of an act of Parliament promulgated and published by the proper authority. This decision was immediately taken on appeal to the Appellate Division.
The government's first contention was that the act did not disqualify voters on the basis of race, as all voters previously qualified were still able to vote, albeit in segregated constituencies. The court dismissed this argument as untenable. The government then argued that the entrenched clauses in the South Africa Act had been repealed by implication by the Statute of Westminster, and that the precedent of the Ndlwana case precluded the courts from questioning the validity of an act of Parliament.
The government's claim regarding the Statute of Westminster was based on two principal theories. The first was based on the repeal of the application of the Colonial Laws Validity Act to South Africa. The Colonial Laws Validity Act provided that any act of a colonial parliament would be valid within the colony unless it contradicted a British act applying to the colony. The argument was that an alteration of the Cape franchise without a two-thirds majority would have contradicted the South Africa Act (which was itself an act of the British Parliament) and therefore would be impermissible under the Colonial Laws Validity Act; and that once that act no longer applied the entrenchment was not enforceable. The court disagreed, noting that section 152 of the South Africa Act specifically empowered the South African Parliament to amend the South Africa Act, and that the Colonial Laws Validity Act had no application and therefore its repeal had no effect.
The second theory was that, by expanding the legislative powers of the dominion parliaments, the Statute of Westminster had abolished the requirement for a two-thirds majority in joint session. Section 2 of the Statute of Westminster gave a dominion parliament the power to repeal or amend any act of the British Parliament as it applied in the dominion. This power, so the argument went, had been granted to a Parliament consisting of two separate houses acting with simple majorities, and this power could be exercised to amend the entrenched clauses without regard to the supermajority requirement. Again the court disagreed, ruling that the "Parliament" to which the amendment power had been granted was the Parliament constituted by the South Africa Act, and that this definition of Parliament included the procedural requirement that certain bills be passed by two-thirds majority in joint session. This did not affect the doctrine of parliamentary sovereignty, as Parliament was fully sovereign over South Africa, and merely obliged to follow certain procedures to pass certain laws.
The final argument was that the principle of stare decisis bound the Appellate Division to follow the precedent of the Ndlwana case, in which it had ruled that Parliament can adopt any procedure it sees fit and the courts have no power to question the validity of its acts. The court ruled that it was entitled to overrule its own previous decisions if they were clearly wrong. In Ndlwana there had been no discussion of the Statute of Westminster nor any argument for or against the conclusion drawn by the court, and the court therefore felt free to overrule it.
The resulting order of the Appellate Division was that the Separate Representation of Voters Act was "invalid, null and void and of no legal force and effect". The ruling, authored by Chief Justice Albert van der Sandt Centlivres and handed down on 20 March 1952, was unanimous.
High Court of Parliament
The response of Malan's government was immediate: the Prime Minister immediately declared the decision unacceptable, that he refused to abide by it, and that he would take steps to have it overturned. In April 1952 introduced the High Court of Parliament Bill, which would constitute the members of Parliament into a High Court with the power to review and overturn any ruling of the Appellate Division declaring an act of Parliament to be invalid. This court was described as a "court of law"; it would have a "Judicial Committee" of ten members which could make recommendations, but the decision of the "court" would be determined by a majority vote of members present.
Dönges, in introducing the bill, argued that it would restore the power of the "sovereign will of the electorate" to determine which laws were valid, and would relieve the Appellate Division of accusations of political bias. of the opposition denounced the bill as establishing a "political court [...] a bogus court set up in order to express the will of the Caucus of the National Party". The bill was attacked in the English-language press, with the Cape Times calling it "an insult to the intelligence of the judiciary". It even met with opposition from a number of prominent Nationalists.
Despite the opposition, the High Court of Parliament Bill was forced through Parliament. It was passed by the House of Assembly on 15 May 1952 and by the Senate on 27 May. A petition asking the Governor-General to withhold assent was rejected and the bill was assented to on 3 June. The Speaker of the House of Assembly was nominated as President of the High Court of Parliament, and he appointed a Judicial Committee of six government members and four opposition members, with , the Minister of Justice, as chairman. The opposition members resigned before the first meeting of the committee on 21 July 1952. After three days of hearings the committee recommended the reversal of the Appellate Division's ruling and the validation of the Separate Representation of Voters Act. The High Court of Parliament, which consisted only of Nationalist members of Parliament due to an opposition boycott, approved this recommendation on 27 August.