Coloured vote constitutional crisis

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 (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.

[1] 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.

[4] 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.

[9] A group of coloured activists formed the National Convention Co-ordinating Committee to oppose the bill within constitutional limits.

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.

[10] 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.

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.

[15] 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.

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.

[17][18] 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.

[19] 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.

[21] 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.

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.

On 29 August the Cape Provincial Division ruled that the act had the effect of altering the entrenched clauses, and that as it had not been passed by a two-thirds majority in joint session it was invalid.

During 1953 and 1954, the National Party tried to re-validate the Separate Representation of Voters Act by convincing enough opposition members to support it to obtain a two-thirds majority; this effort was not successful.

[35] In 1955 the new Prime Minister J. G. Strijdom adopted a new plan: the Senate (the upper house of Parliament) would be packed with National Party members to ensure the government would have the necessary two-thirds majority in a joint sitting.

The result was that the National Party was able to control seventy-seven Senatorial seats: the sixteen nominated by the Governor-General, the fifty-seven elected for the Cape, Transvaal and the Orange Free State, and the four representing South-West Africa.