One factor behind the desire to disenfranchise blacks (which took place in 1936) and the Cape coloureds (in the 1950s) is to be found in the early history of the Cape Colony, where the non-racial franchise originated in South Africa. By the 1880s, Cape Colonial politicians became concerned that increasing numbers of blacks and coloureds were qualifying to vote in terms of property and literacy qualifications, and as a result were playing a larger and larger role in political battles. The qualifications for franchise were thus raised at various junctures, long before the Union of South Africa came into existence (Robertson 1971, 4).
After the Union was formed, the Cape liberals drew a line in the sand over the existing rights of coloured and black voters in the Cape Province, saying that those rights should persist and should not be modifiable unless in terms of the strict procedure set out in the 1910 Constitution drawn up at the National Convention (May 1955, 11).
In 1936, the Representation of Natives Act removed blacks from the Cape common voters roll. They were placed on a separate roll entitled to elect three white “native representatives” to represent them in the House of Assembly and four in the Senate. They also received the ineffectual Native Representative Council (Robertson 1971, 9).
The native representatives tended to side with the liberally spirited United Party, as when they assisted prime minister Smuts in gaining a majority in Parliament to enter South Africa into the Second World War (Lewsen 1987, 102). According to Brookes, he and the other liberal white native representatives regarded their mission as bringing about an end to the existing native representative system and replacing it with one where South Africans of any race, directly elected by enfranchised blacks, could sit as parliamentarians (Lewsen 1987, 110).
Early 1950s politics was defined by what became known as the constitutional crisis, which represented one of the biggest clashes between the new National Party government and the opposition United Party. In what may be its most liberal moment, the United Party stood for the supremacy of the 1910 Constitution in the face of attempts by the National Party to amend it in order to remove coloured voters from the common electoral roll in the Cape Province, by way of the Separate Representation of Voters Act in 1951. The Constitution—the South Africa Act of 1910—entrenched two provisions: that providing for equality of English and Afrikaans, and that which protected the existing non-racial, qualified franchise in the Cape Province. The only way to amend the entrenched provisions was by obtaining a two-thirds majority of both houses of Parliament in a joint sitting. The United Party’s English constituency particularly feared that allowing the government to do away with the provision protecting the non-racial franchise would open the door to the Afrikaner-dominated National Party also doing away with the provision protecting their language rights. Thus, Jan Smuts, the former prime minister, declared that, “To break away from the Constitution is to break away from the very foundation of Union” (Robertson 1971, 48).
The Separate Representation of Voters Act was passed only with bare majorities (not two-thirds), and in separate sittings as opposed to a joint sitting of both Assembly and Senate, thus contravening the constitutional procedure on two counts. In future attempts to force the bill through it also failed to obtain the requisite two-thirds majority in a joint sitting. Its supporters, as a result, relying on the doctrine of parliamentary sovereignty, attempted to bring the Act into operation despite failing the procedure. Their argument, simply, was that Parliament was sovereign: because the 1910 Constitution was an ordinary piece of legislation, and because Parliament cannot bind its successors, the current Parliament must be allowed to amend any law by a simple majority.
The United Party responded as follows, via Smuts’s successor, Koos Strauss:
“The United Party . . . will fight this Bill inch by inch and all the way. It will fight it not only in this Parliament by every legitimate means at its disposal, but should the fight of the United Party not prevail in this House, that fight will be carried on in the law courts of this country. And if it should happen that the United Party does not prevail in its fight in the law courts, if it should be held by the highest court in this land that the entrenched clauses are no longer in full force and effect, then the United Party will make it its business to see to it that a new entrenchment will take place of these fundamental provisions in our Constitution.” (quoted in Marshall 1957, 163. Marshall cites the parliamentary Hansard: 75 House of Assembly Debates col. 4483.)
On 20 March 1952, the Appellate Division of the Supreme Court, consisting of Chief Justice Centlivres and justices Greenberg, Schreiner, Van den Heever and Hoexter, unanimously held that the Separate Representation of Voters Act was invalid, as its passing did not comply with the procedures set out in the 1910 Constitution. According to the court, legislation affecting the entrenched provisions had to be passed by two-thirds of the members of a joint sitting, and not by a bare majority of each house (Marshall 1957, 171).
The prime minister, D. F. Malan, announced on the same day that:
“Neither Parliament nor the people of South Africa will be prepared to acquiesce in a position where the legal sovereignty of the lawfully and democratically elected representatives of the people is denied, and where an appointed judicial authority assumes the testing right…” (Marshall 1957, 185)
After this announcement that government would not abide by the decision of the Appellate Division, and that action would be taken to circumvent it, Sailor Malan (no relation to D. F. Malan) of the liberal Torch Commando is reported to have said:
“The mask of respectability is there for all but the blind to see. The sheepskin has fallen off and the fascist wolf is snarling at the courts. We accuse the government of preferring jungle law to the rule of law. We accuse them of preferring unfettered dictatorship to a constitution which binds them to certain standards of procedure.” (quoted in Kane-Berman 2018)
In light of these developments, the Torch Commando, the United and Labour parties, and the Defenders of the Constitution formed themselves into the United Democratic Front to agitate against the National government in the 1953 general election (Robertson 1971, 60) (This United Democratic Front should not be confused with the United Democratic Front that composed a substantial segment of the anti-Apartheid movement in the 1980s.). In 1956, the Women’s Defence of the Constitution League—later and today known as the Black Sash—committed itself to “the restoration and encouragement of political morality and the preservation of Constitutional Government.” They argued that the National Party government was besmirching South Africa’s honor by so brazenly refusing to comply with the 1910 Constitution’s prescripts (Black Sash 1956, 1–2).
The National Party was so outraged by the audacity of a court defying the will of the sovereign Parliament that it attempted to create something known as the High Court of Parliament. This ‘court’ would, in fact, be Parliament sitting as if it were a court, and would have the authority to review decisions of the Appellate Division that related to the constitutionality of legislation. Margaret Ballinger said in the House of Assembly that this legal absurdity amounted to “Parliament establishing Parliament in a new form to say that a majority of the Government was itself right by a verdict of its members.” Abe Bloomberg, the United Party MP for the Castle constituency in Cape Town, whose electorate was mostly coloured (Green 2004, 163), said that the High Court of Parliament was a “phoney,” “fake court,” that amounted “to nothing more than a Select Committee of this Parliament that gives effect to the decisions of the Nationalist Party Caucus” (Marshall 1957, 192. Marshall cites the parliamentary Hansard: 78 House of Assembly Debates col. 4209.).
When the legislation creating this ‘court’ was challenged, the Appellate Division found on 29 October 1952 that it was unlawful, because in substance no court was being created. The legal reality was that if Parliament fails to secure a two-thirds majority in a joint sitting, it could not legislate repugnantly to the entrenched provisions (Marshall 1957, 222). This decision by the Appellate Division further angered the National Party, which again vowed to ensure a return to what it considered constitutional normalcy.
It proved relatively easy for the National Party to get around the Appellate Division’s findings of unconstitutionality. The size of the Senate, the upper house of Parliament, and the size of the Appellate Division bench were not entrenched provisions, meaning no special procedure had to be followed if government wished to modify them. As a result, government introduced legislation that expanded the size of the Appellate Division bench in constitutional matters from five to eleven. Thereafter, the government introduced the Senate Act, which enlarged the Senate, allowing the National Party to secure a two-thirds majority in a joint sitting of Parliament after itself nominating new senators. Parliament consequently passed the Separate Representation of Voters Act, which became law on 2 March 1956 (Marshall 1957, 236).
The Senate Act was also challenged for its constitutionality, with the applicants arguing that government was using underhanded means to circumvent the entrenched provisions of the 1910 Constitution, as it did with the High Court of Parliament. The Appellate Division, however, now composed of eleven judges and no longer five, found against this argument and confirmed the validity of the Senate Act on 9 November 1956, thus ending the constitutional crisis in favor of the National Party government (Marshall 1957, 240–242). Only one judge, the liberal Oliver Deneys Schreiner, agreed with the applicants in his dissent:
“I hold accordingly that on the proper construction of the [1910 Constitution,] a Senate constituted ad hoc for the purpose of securing, by nomination or its equivalent, a two-thirds majority in a contemplated joint sitting is not a House of Parliament within the meaning of the proviso. The application of this conclusion to the facts creates no difficulty. It is clear that the Senate set up under the Senate Act was as certain to provide the requisite two-thirds majority as if the names of its members had been scheduled to the Act or the Government had been empowered to nominate all of them. It is not seriously disputed by the respondents, and the history of the legislation proclaims, that the Senate Act was part of a legislative plan to create a Senate that would in that way provide the two-thirds majority required to remove the appellant from the common roll, and that it was enacted only for that purpose.” (Collins v. Minister of the Interior and Another 1957)
The disappointing end of the constitutional crisis made it evident that the flexible 1910 Constitution itself would be no asset in the cause of liberalism (Brookes 1956, 194). As Ballinger noted in the House of Assembly during the debate on the Separate Representation of Voters Bill:
“The people of South Africa . . . believed that they had a Constitution. . . . If we have not got a Constitution, if we are assuming, as we all seem to be assuming in a broad general fashion, that Parliament is sovereign, we are also assuming . . . that our Constitution is completely elastic, and that [we, Parliament] can do what we like.” (Marshall 1957, 159. Marshall cites the parliamentary Hansard: 75 House of Assembly Debates col. 4638.)
Subsequently, legal-constitutional challenges to Apartheid legislation were of negligible significance. The constitutional crisis was, however, the United Party’s and the judiciary’s finest hour from a liberal perspective (Swart 1991, 15).