National Convention (South Africa)
[2] The convention was held behind closed doors, in the fear that a public affair would lead delegates to refuse compromising on contentious areas of disagreement.
In 1874, Lord Henry Carnarvon, who had introduced the British North America Act, sent James Anthony Froude to report on the situation in the region.
Rhodesia and the Portuguese province of Mozambique participated on the understanding that their delegates could not vote on or discuss anything that did not concern their territories directly or which they were not legally competent to address.
[7]: 84–90 The conference unanimously accepted Smuts' motions, which read as follows:[7]: 91–92 "(a) That in the opinion of this Conference the best interests and the permanent prosperity of South Africa can only be secured by an early union, under the Crown of Great Britain, of the several self-governing Colonies;(b) that to the union contemplated in the foregoing resolution Rhodesia shall be entitled to admission at such time and on such conditions as may hereafter be agreed upon;(c) that the members of this Conference agree to submit the foregoing resolutions to the Legislatures of their respective Colonies, and to take such steps as may be necessary to obtain their consent to the appointment of delegates to a National South African Convention, whose object shall be to consider and report on the most desirable form of South African Union and to prepare a draft constitution;(d) the Convention shall consist of not more than (12) twelve delegates from the Cape Colony, not more than (8) eight delegates from the Transvaal, not more than (5) five delegates from Natal and the Orange River Colony respectively, and it shall meet as soon as convenient after the next Sessions of all the Parliaments; provided that as soon as at least two Colonies shall have appointed their delegates the Convention shall be considered as constituted;(e) the Convention shall publish the draft constitution as soon as possible, and shall, in consultation with the Governments of the self-governing Colonies, determine the further steps to be taken in reference thereto;(f) in the Convention the voting shall be per capita and not by States.
He criticized the American federal model as "ineffective for the essential purpose of civilized government" because individual states could make their own law, and South Africa had by that time already experienced too much legislative confusion, in Smuts' view.
Smuts believed that a unitary state would allow South Africans to overcome the friction and racial strife they had thereinto experienced.
[14] But it was mainly the question of a national native policy that decided the issue, with the "unifiers" arguing that a strong central government would be necessary for dealing with this problem.
Given this parliamentary sovereignty, the constitution itself could be amended with a simple majority of both houses of Parliament, with the potential exception of two "entrenched" clauses governing the equality of languages and the qualified franchise in the Cape.
Four potential solutions to the franchise problem were tabled at the convention: A standardized "civilization test" would have meant legal equality between whites, blacks and coloureds in South Africa, which was unacceptable to the conservative electorate in the Transvaal, Orange River and Natal.
[17] This led to the fourth option being adopted, with the Cape qualified franchise receiving constitutional protection in section 35 of the South Africa Act until such a time as it is amended by a joint sitting of Parliament with a supporting vote of two-thirds of the members.
[19] As South Africa was to be a unitary rather than a federal state, the provinces would have no legislatures of their own, but instead a system of provincial councils wholly subordinate to the national Parliament.
Education was one of the key areas of jurisdiction added to the provincial council system, primarily for the fears raised by Natal and the Orange River that their language rights would be undermined.
This desire for non-partisanship did not come to fruition, however, as every provincial election since the adoption of the South Africa Act would be fought along party political lines.
Stephen Leacock wrote that its acceptance in the Transvaal was a foregone conclusion, as the dominant political parties in the legislature had both agreed to the constitution beforehand.
The various colonial governments, after having approved the draft, agreed with the resolution taken at the convention that the constitution be referred to the British Parliament[16] for adoption, in which would become the South Africa Act.
Each colonial legislature appointed delegates to go to London, empowered to agree to changes "not inconsistent with the provisions and principles of the draft act".
[22] In London, 53 amendments were made to the bill, most of which were procedural and not substantive, and Parliament passed the constitution in essentially the same form it had been submitted by the National Convention.
This led to Afrikaners fearing language inequality in the years after the constitution was adopted, despite the equality provisions in the South Africa Act.
The Separate Representation of Voters Act thus passed without the requisite two-thirds majority required, and without both houses sitting together, to amend the Cape qualified franchise, plunging South Africa into a constitutional crisis that would continue until 1955.
