A report prepared for the Progressive Party of South Africa by a Commission of Experts
Chairman: Mr Donald B Molteno QC
with foreword by Dr Jan Steytler MP, Leader of the Progressive Party
Molteno Report Volume 1
Interim Report of the Expert Commission set up by the Progressive Party to make recommendations on a Revised Constitution for South Africa extending Franchise Rights to all Civilised Subjects of the Union.
Under the Chairmanship of Mr Donald Molteno QC.
This first volume deals with the second, third and fifth items under the Commissioners’ terms of reference. Further volumes, dealing with the remaining terms of reference, will be issued in the near future.
Published November 1960
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NATAL INLAND: 11 Change Lane, Pietermaritzburg. Box 993. Phone 20654.
CAPE BORDER: Mager’s Buildings, 73 Cathcart Road, Queenstown. Box 505. Phone 3637.
EAST LONDON: Carroll’s Buildings, 29 Cambridge Street, East London. Box 461, Phone 3768.
CAPE EASTERN: 6 Norfolk House, Main Street, Port Elizabeth. Box 853. Phone 27244.
GRAHAMSTOWN: Berger’s Buildings, Church Square, Grahamstown.
CAPE WESTERN: 708 Dumbarten House, Church Street, Cape Town. Box 1475. Phones 20368/23909.
KIMBERLEY: 31 Du Toitspan Road, Kimberley. Box 634. Phone 6279.
ORANGE FREE STATE: c/o M. A. Thatcher, Belgrave, Westminster, O.F.S. Phone Westminster 7.
Issued by MR Malleson for the Progressive Party of South Africa
809 G. B. Centre, Smal Street, Johannesburg
Printed by Central Press (Pey.) Led., 22 Melbourne Road, Durban
Foreword by Dr Jan Steytler MP – Pages 2-3
Members of the Commission – Page 4
Terms of Reference – Pages 5-6
Franchise and Senate Proposals
Majority Report of Commission – Pages 7-28
Minority Report by Dr ZJ de Beer MP and Mr HF Oppenheimer – Pages 29-31
Minority Report by Dr S Cooppan – Pages 32-40
Minority Report by Dr RE van der Ross – Pages 41-44
Minority Report by Mr Arthur Suzman QC – Pages 45-49
Bill of Rights – Pages 50-67
Party Offices – Inside back cover
Hierdie verslag is ook in Afrikaans verkrygbaar
THE PROGRESSIVE PARTY is indebted to those who have compiled the first volume of the Molteno Report, which the Party now has pleasure in laying before the people of South Africa. The Report is the product of a year’s intensive work on the part of a Commission whose members are eminent in many fields in South Africa, and include some of the country’s most brilliant constitutional lawyers. The proposals of the Molteno Commission represent the first real plan to equate our political system with the long-established and highly successful economic multi-racial character of our land.
I urge South Africans of all races and political convictions to examine this Report; to consider it not only against the background of our own political scene, but also against the tremendous political and constitutional development that is taking place throughout the whole of Africa. What is happening on this continent is, of course, but a reflection of the new ideas, the new trends in thought which are giving new form and meaning and new expression to age-old democratic ideals.
The Molteno Commission had a three-fold task, namely:
To define what qualifications should entitle a South African to be considered “‘responsible’”’ and hence worthy to vote on the common roll.
To propose means of protecting the various racial groups in our country from domination, and to ensure this for all time.
To guarantee the rights and liberties of every individual in our country.
In order to do these things, the Commission has proposed a fundamental reform of our Constitution, and the Constitution it proposes is, as we anticipated, of a rigid nature.
In this rigid Constitution the Commission proposes that we should entrench a Bill of Rights: a Charter that will guarantee in law the full protection of the rights and freedoms of every individual and of every group.
And the Report lays down a formula for a Senate truly representative of our multi-racial nation; a Senate which will have powers to check any legislation which could diminish the rights of any racial group.
You will, I know, join me in congratulating all members of the Molteno Commission on the brilliant and lucid reasoning apparent throughout this Report. The minority reports indicate the minor differences of opinion – for example, different educational standards – but there is complete unanimity among the Commissioners about the principles upon which the Report is based.
The National Executive of the Progressive Party has given very careful consideration to the Molteno Report, including the minority reports which accompanied it, and has formulated proposals to place before the National Congress of the Progressive Party in Johannesburg to be held in November 1960. These proposals are, of course, no more than recommendations to Congress, which is the only body that can take a final decision in the formulation of Party policy.
Cutting across the habits of thought of an age that is past, these proposals indicate a realistic and peaceful path for our future development. I am convinced that they offer the only alternative to the traditional policy of White supremacy, and the only means of achieving a true national unity in which the culture and beliefs of Western civilisation will be shared by all our people. That they should be so shared is vital to the survival of these values.
Jan Steytler MP
Leader of the Progressive Party of South Africa
Members of Commission
Chairman: Mr Donald B Molteno QC
Hon Leslie Blackwell (Former MP and Judge of the Transvaal Provincial Division of the Supreme Court)
Professor Edgar H Brookes (Professor of History and Political Science, Natal University)
Dr S Cooppan (Department of Economics, Natal University)
Hon A van der Sandt Centlivres (Ex-Chief Justice of the Union of South Africa)
Dr ZJ de Beer MP (Chairman of the National Executive of the Progressive Party)
Mr Kenneth Heard (Senior Lecturer in Political Science, Natal University)
Professor JS Marais (Professor of History, University of the Witwatersrand)
Mr Selby Ngcobo (Lecturer in Economics, University of Rhodesia and Nyasaland)
Mr HF Oppenheimer (Former MP and Director of Companies)
Mr Arthur Suzman QC
Professor LM Thompson (Professor of History, University of Cape Town)
Dr RE van der Ross (Principal of Battswood Training College, CP)
Honorary Secretary: Miss Yvonne M de Villiers
Terms of Reference
THE PARTY regards our present flexible, highly centralised Constitution as entirely unsuited to South Africa, whose inhabitants comprise a plural society consisting of several racial communities. A Constitution of this kind may work well enough in a homogeneous society such as that of Great Britain in which deep-rooted constitutional conventions operate: but in a plural society such as ours it enables any group which happens, for the time being, to command a Parliamentary majority to dominate and to exercise unchecked power over the others. This inevitably causes, among the subject communities, growing frustration and hostility which threaten the very existence of civilised society in South Africa.
The Party is, therefore, profoundly convinced of the need for a reformed Constitution, which will contain adequate safeguards for each of our racial communities against domination by any other, will accord to each a share in government, will guarantee the fundamental human rights and liberties of the individual, irrespective of race or colour, and will decentralise legislative and executive power in the interests of a reasonable degree of provincial and local self-government.
Regarding such a reformed Constitution as alone capable of providing a political framework for inter-racial co-operation, Congress states its achievement to be a major objective of Progressive Party policy, and requests the National Executive to appoint a commission of experts to consider and report upon detailed proposals for such a reform along lines best calculated to achieve the following aims:
1. To establish conditions which will enable the peoples of South Africa to live as one nation in accordance with the values and concepts of Western Civilisation.
2. To enable suitably qualified citizens of a defined degree of civilisation belonging to any population group to participate in the government of the country, according to their ability to assume responsibility, through the holding of public office and through registration on a common electoral roll for election of members of the House of Assembly, with special provision for the representation of persons not so qualified.
3. To provide constitutional safeguards through a reform of the Senate and/or otherwise to prevent the exercise of unchecked power by any group in order to dominate any other group, white or non-white.
4. To decentralise legislative and executive power by devolving on the existing provinces, or any other provinces into which the Union may in future be delimited, and any additional provinces, comprised of neighbouring territories that may in future join the Union, such powers or functions as need not be exercised by the central Parliament and Government in the interests of the peace, safety and welfare of the Union as a whole. The Commission to consider in this connection:
(a) the form, generally, of the government of the provinces;
(b) the effective protection within the provinces of the rights of racial groups,
(c) the financial relations between the central government and the provinces.
5. To guarantee, by inclusion in the Constitution of an entrenched Bill of Rights, the fundamental human rights and liberties of the individual, such as freedom of religion, speech, movement and association, equal protection of the laws, and also the equal status of the official languages.
6. To ensure the maintenance in South Africa of an independent and learned judiciary, impartial justice and rule of law.
The Party further urges that the Commission have due regard for the necessity for obtaining the widest possible degree of national acceptance of the proposed reformed Constitution, and therefore requests that it make recommendations in regard to the summoning by a future Progressive Government of a National Convention, representative of all racial communities, to consider proposals for constitutional reform and to recommend to Parliament, for enactment by it, a reformed Constitution for South Africa.
Franchise Qualifications and Senate Proposals
1. Our terms of reference are contained in the Resolution on Constitution and Franchise Proposals adopted by the First Congress of the Progressive Party held at Johannesburg on 13th and 14th November 1959. The Resolution is set out in full on pages 5 and 6.
As appears from the wording of this Resolution, our terms of reference comprise the six numbered paragraphs thereof together with the question of the composition and functions of a multi-racial National Convention to consider proposals for a reformed Constitution.
Analysis and interpretation
2. We regard some analysis and interpretation of the terms of reference as necessary.
Paragraph (1) is in very general terms, but, read with the introductory portion of the Resolution, we interpret it as a direction to consider the general nature of a reformed Constitution capable of providing a framework within which our various racial communities may co-exist and co-operate as one civilised nation. Clearly the Resolution contemplates that such a Constitution shall be a rigid one, incapable of being altered by an ordinary act of the legislature, and enforceable by the Courts as the basic law, which neither the subject nor any organ of government may lawfully disregard. The main topic for consideration in this connection is the manner, if any, in which such a Constitution may be altered.
Paragraph (2) comprises the important subject of the qualifications for the Parliamentary franchise and for membership of Parliament, as also the representation in Parliament of persons not qualified to exercise the ordinary franchise.
Paragraph (3) requires us to recommend safeguards for racial communities against unchecked domination by any community which happens to be in a position to return a majority of the House of Assembly by virtue of its electoral predominance.
Paragraph (4) raises the whole question of whether the present unitary system of government should be retained or whether the reformed Constitution should decentralise and redistribute legislative and executive power on federal lines. We are, in any event, enjoined to make recommendations aiming at decentralisation. But the legal efficacy of such decentralisation necessarily depends on which system, unitary or federal, is adopted.
Paragraph (5) involves consideration of the entrenched rights and liberties to be guaranteed to the individual, which can only be altered by amendment of the Constitution itself.
Paragraph (6) is intimately connected with paragraph (1). It is, indeed, a special aspect of it. Since a rigid Constitution defines and limits the powers of the organs of government, including the legislature itself, and since it is the function of the Courts, as interpreters of the law, to decide in particular cases whether such powers have been duly exercised within their prescribed limitations, it falls to the judiciary to pronounce upon the validity even of acts of the legislature. Hence the importance of devising and entrenching means of selecting judges which will, as far as possible, eliminate the influence of party political considerations in such selection.
The composition and functions of a National Convention involves recommendations designed to secure that the reformed Constitution shall embody a true accord between the various racial communities as to the principles upon which all consent to be governed in the future.
3. At the first meeting of the Commission it was decided to consider and present an interim report upon the subjects comprised in paragraphs (2) and (3) of the Resolution, leaving the rest of the terms of reference to be dealt with in a final report. We arrived at this decision on account of the importance attached by the public to the franchise policy of the Party, and also because of the connection between the franchise qualifications to be advocated by the Party and admission to Party membership. But qualifications for the franchise cannot be considered without also considering constitutional safeguards for minority communities, which involve limitations on the powers of a majority of the House of Assembly. Hence our decision to include this term of reference also in the interim report.
FRANCHISE AND MEMBERSHIP OF THE HOUSE OF ASSEMBLY
4. The task of recommending the general qualifications for a non-racial franchise is quite the most difficult that we have been set. Whatever recommendations we make in this regard will obviously be open to criticism. We are enjoined to recommend qualifications based on a “defined degree of civilisation”. But this is a very general test upon which opinions may legitimately widely differ.
Thus critics who regard the qualifications we recommend as too low will point to the danger of the “swamping” of the White minority by the non-White communities. To such critics we would reply that the function of franchise qualifications is not to erect safeguards for racial minorities. That function is performed by our recommendations under the third term of reference (the second in this interim report) and under the fifth, relating to an entrenched Bill of Rights. The function of the qualifications is to produce a responsible electorate.
On the other hand, critics of our suggested qualifications as being too high will, no doubt, point to the well-nigh universal prevalence of adult suffrage in modern democratic states and will suggest that South Africa cannot lag behind. To such we would reply that our terms of reference, as we interpret them, exclude a recommendation in favour of adult suffrage.
It should be made clear in this connection that it is not our function either to defend the principle of a qualified franchise or to condemn that of adult suffrage. There are those among us who favour the one system and others who favour the other as being suitable for immediate application in prevailing South African conditions. So far as this report is concerned, however, the issue is concluded by the decision of the Progressive Party Congress and it must be appreciated that those of us who disagree with it do not depart from their personal viewpoint in recommending qualifications according to the general criteria laid down in the terms of reference.
5. In approaching the question of franchise qualifications we have attempted to keep in mind the general conditions which historical experience indicates are likely to favour the effective functioning of democratic institutions. On the one hand, the desirability is obvious of diffusing voting strength as widely as possible throughout the population so that all strata thereof may be enabled to defend their legitimate interests. On the other hand, we have felt obliged to attach due weight to what a contemporary authority, Mr John Strachey, describes as “the daunting difficulties which stand in the way of actually making such institutions effective: and “the high degree of sophistication needed by a community which seeks to employ them”. In his recent book, Contemporary Capitalism (Gollancz 1956, pp. 166-8), Mr Strachey, having used the phrases just quoted, proceeds:
“In this connection one of the key questions may be defined as the question of the quality of ‘the opposition of the opposition’… . If ‘the opposition of the opposition’ in a democratic system is total, it represents in fact a permanent state of insurrection against the existing government. If, that is to say, the leaders and the supporters of the opposition party have nothing – neither objectives, methods, loyalties, nor faith – in common with the government party, they are bound, sooner or later, to destroy that government and the party on which it is based, or to be destroyed by them. They cannot possibly be expected to alternate with them in power. Nor can we expect either side in such a total contest to abide by the decision of some particular general election… . Thus it is the essence of representative institutions that ‘the opposition of the opposition’ should not be total and that the government of the day shall not, for its part, do anything irrevocably to injure its opponents. Unless these limitations are observed, the alternation of government and opposition parties in power, and so the possibility of choice by the electorate, is impossible. … We must conclude that in order that representative institutions may work, some means must be found of combining real and important differences with a much deeper underlying unity between the political parties which compete for the votes of the electorate, and so for power… . A high degree of political sophistication will be necessary, then, in order to maintain this national unity in diversity. It is foolish and unfair to expect any such thing from communities which have not long possessed a real measure of social welfare and economic stability. … Whenever the standard of life of the mass of the population is below a certain level of human welfare, and the distribution of the national income below a certain level of equity, the masses do not and cannot feel the necessary identification with the national regime. Nor, on the other hand, do they feel the necessary hope of being able to modify that regime in their own favour without first destroying it. … In such cases the masses either remain indifferent and sub-political, in which cases there will be no real differences between the competing political parties; or there will emerge a party of total opposition – in practice today a communist party.”
Standards must be raised
No doubt the point of this passage is that the standards of backward communities must be raised before the population as a whole can make effective use of fully representative institutions. It does not follow, however, that, pending such development, democratic rights must be denied to those strata of the people that are ready for them. Indeed this has been the process of development of the British Colonial Empire towards the autonomy of each dependent territory. The corresponding process in metropolitan Britain itself was similarly the series of extensions of the Parliamentary franchise to the various social and economic strata as they developed. Implicit in the passage just quoted, therefore, is an indication of the criteria that should determine voting qualifications in a developing society which still has wide disparities in living standards, educational attainments and cultural levels.
Test of Civilisation
Such qualifications should embrace those elements of the population that have attained an economic level or a degree of sophistication such as to enable them to feel sufficient identification with society as a whole – to possess sufficient “stake in the country” – not to fall prey to totalitarian illusions.
This is the only realistic test of “civilisation” that we can conceive of. Its application obviously involves formidable difficulties and is largely a matter of opinion and judgment.
Indeed opinion and judgment varied considerably among ourselves in regard to this very matter. In the course of our deliberations three distinct viewpoints emerged, which, for convenience, may be referred to as those of the “right”, the “left” and the “centre”. Those of the latter school of thought were the most numerous and it is their recommendations that immediately follow. Despite considerable efforts, it was not found possible to secure ultimate unanimity and minority reports therefore became inevitable. These are appended hereto.
Broadly speaking, the majority of us feel that the test of “civilisation” just referred to is complied with by any adult with sufficient education to guarantee ability to read and write adequately – as opposed to bare literacy – and who is sufficiently integrated into our economy and society, to hold a position involving some measure of technical, clerical or administrative skill, or to own or occupy fixed property of a value sufficient to provide a minimum standard of civilised habitation. A degree of education, however, considerably in excess of the minimum, as also an earning capacity indicating an occupation well above the level just described coupled with bare literacy, should in themselves be regarded as meeting the test.
On this basis the following qualifications are recommended:
(1) Union citizenship, to be defined by law and entrenched in the Constitution.
(2) Attainment of the age of twenty-one years, irrespective of sex.
(3) (a) Passing Standard IV, or its equivalent, together with
(i) either an income for at least two years in cash and/or kind of at least £25 per month;
(ii) or occupation or ownership for at least two years of fixed property to the value of at least £500;
(b) passing Standard VIII or its equivalent;
(c) bare literacy, according to an objective test to be prescribed, together with an income for at least two years of £500 per annum;
(d) marriage to a person haying the income or property qualifications mentioned in (a) or (c), together with the required educational qualifications in each case;
(e) registration at any time in the past in any list of voters for election of members of the House of Assembly.
We think that the income and property qualifications should be reviewed at five-yearly intervals by a committee headed by a judge, and revised upwards or downwards in accordance with variations in the purchasing power of money. This is a principle embodied in the law of the Federation of Rhodesia and Nyasaland.
Multiple voting unacceptable
6. A number of persons submitting suggestions to us have advocated a system of multiple voting, whereby a basic qualification is laid down and additional votes are conferred upon the individual possessing prescribed higher qualifications up to a fixed maximum. There is much to be said in favour of such a system. On the whole, however, we agree with the Tredgold Commission on the Franchise of Southern Rhodesia that its necessarily arbitrary, complex and unpredictable nature renders it unacceptable.
No statistics available
7. We have attempted an estimate of the numbers of voters of the various racial communities who would initially qualify for registration in terms of our proposals. But the statistics simply do not exist upon which such an estimate, or even an intelligent guess, can be founded. In any event it would be of very limited value, since the relative numbers would be bound to alter with the cultural and economic progress of the non-White peoples which the Progressive Party is committed to promote. Furthermore, as already mentioned, voting qualifications should not be regarded as providing safeguards for racial minorities. These are dealt with below.
Against group representation
8. Dealing now with the question of representation of persons not qualified to vote in terms of the above recommendations, no one of us was in favour of separate communal representation in the House of Assembly of members of the various racial groups who are not so qualified. There was some disagreement among us, however, as to whether such persons, or some of them, should be entitled to vote on a separate “B” roll for a limited number of members of the House. The greatest number of us, including all who join in recommending the qualifications mentioned above, are of opinion that special representation for unqualified persons is not warranted.
We have recommended the lowest qualifications that we conceive to be consistent with securing a civilised and responsible electorate. We shrink, therefore, from the possibilities of instability and confusion implicit in introducing into the Assembly a bloc of members of any considerable number representing an electorate not conforming to those criteria. If, on the other hand, the number of such representatives were not considerable, then the representation would be ineffective, as in the cases of the representation of Africans from 1936 to 1960 and the representation of Cape Coloured persons today.
9. We think that if these recommendations fail to satisfy the conservative and radical criticisms anticipated in paragraph 4 above, no rational considerations will, and, after all, criticism can only be countered by reason. Irrational criticism is, in its nature, impervious to reason.
We do not suggest, however, that irrational considerations can be left entirely out of account in this matter. Considerations based on “realism”, in the sense of acceptability to the mass of South Africans of the various racial communities, although irrational in nature, are nevertheless of obvious importance.
The difficulty of attaching due weight to these considerations, however, arises from their mutually contradictory character.
On the non-White side of South African society we are aware that the demand is general, among the politically conscious elements, for adult suffrage. This demand is due not only to a rational desire to protect the interests of the masses against the forces of exploitation and racial discrimination, such as have dominated South Africa throughout its past, but also to an identification of adult suffrage with a status of human dignity and self-respect. In this respect non-White South Africa is naturally affected by the ideology that has inspired the national liberation of the colonial peoples of Asia and Africa since the war. For these peoples a system that in Europe and America has traditionally been regarded as a technique of government has become a mistique and a symbol.
Whilst fully understanding this attitude, we are bound to point out that it bears no necessary relation to personal freedom, the rule of law, ordered progress, or any of the other values that Western democracy was conceived in order to foster. Its inspiration is rather non-White nationalism, which, like all nationalisms, is ultimately totalitarian in its logical outcome.
A modern nationalist mass movement naturally rejects voting qualifications that seek to enfranchise the stable elements in society. For, to the nationalist, the vote is a weapon to be used by the masses at the behest of an enthusiastic leadership.
Desire to Dominate
In the newly-independent states of Asia and Africa this is all very well. If their peoples seek to reject the standards and values of Western democracy, this is at least their own affair, and indeed, in the process, they may well evolve systems of their own that suit their own circumstances better. In the circumstances of South Africa, however, with its considerable and developed White minority, non-White movements thus inspired can lead only to a racial clash with unpredictable consequences. For non-White nationalism, from its nature, must seek to dominate the White minority, just as White nationalism, from its nature, must and does seek to dominate the non-White majority. For White South Africans therefore, the issue would not be merely surrender of their dominance over others but surrender of their own self-determination.
This is something that no national or religious minority in a plural society has every been prepared to do. Faced with such an issue White South Africa would fight, since all incentive to seek an agreed solution would be lacking, and even defeat could hardly have worse consequences than immediate surrender. On this basis, the Nationalist Party are right in seeking White self-preservation along the lines of dominance, or apartheid, or a combination of the two.
The other “realism” which we naturally recognise is the social and psychological power of White nationalism, which extends beyond the limits of the Nationalist Party and infects the large majority of White South Africans. Here again the irrational and mystical pretensions of any nationalism have to be considered, and, in this case, they are reinforced by the possession of power in the present and apprehension for the future. Here also such pretensions bear little relation to the values of Western democracy. The whole record of the Nationalist government illustrates this, with its increasingly coercive measures against not only non-White aspiration but White non-conformity. If this intransigeance is unalterable, the Progressive Party has no role to play in the resulting situation. Nor has the Liberal Party, nor, probably, even the African National Congress. On this basis the only hope for the non-White peoples would seem to be in organisations prepared to adopt the methods and techniques such as those recently employed by the Pan-African Congress.
So much, therefore, for the effect of considerations of “realism” upon our franchise proposals. We do not claim for them any possibility of general acceptance, either by White or non-White, so long as the prevailing temper of each persists. But then that temper is not directed, on either side, to a democratic settlement of the race issue. The whole reason for the existence of the Progressive Party, as we understand it, is to attempt just such a settlement. This, in turn, depends on its ultimate success in defeating nationalism, both White and non-White. Its hope of doing so lies in the dynamic nature of the total situation and the essential inter-dependence of the racial communities. To the White community events are proving – and are likely increasingly to prove – that their dominance rests ultimately on non-White co-operation in all spheres of life, and that once non-White political consciousness rises to a point inducing general withdrawal of that co-operation, such dominance is at an end. On the other hand, the importance of White techniques, capital and experience is apparent to most non-White people in their daily lives. No doubt they can acquire these themselves, and, indeed, they are rapidly doing so. Yet an increase in political consciousness can scarcely fail to be accompanied by the realisation that a complete breakdown of inter-racial co-operation, although it might achieve non-White political dominance, would achieve it at a cost in economic poverty and social dislocation, possibly extending over generations, which any people would hesitate to pay.
Progressive Party’s role
The role of the Progressive Party, therefore, is so to interpret unfolding events to the peoples of South Africa as to induce in the Whites the realisation that Nazism and its allied racist cults really were defeated in 1945, and in the non-Whites the realisation that South Africa is not Ghana or Guinea, Indonesia or Burma, where nationalist aspirations can be realised simply by packing off “home” a handful of White officials, entrepreneurs and technicians. Only if it succeeds in this task will the Party be in a position to summon a new National Convention. Our franchise proposals should then be capable of forming the basis of a democratic compromise in an atmosphere not pervaded by the hectic myths of nationalism.
Returning, then, to our prospective conservative and radical critics, provided that they are prepared to approach the matter in a rational spirit of compromise, we can perceive no reason why their objections should prove insuperable. The conservative critic can scarcely object to the enfranchisement of the stabilised semi-skilled working class if he is a democrat at all. And, as already pointed out, the issue of racial “swamping” is irrelevant in this connection. Constitutional safeguards for minorities will be suggested elsewhere in this and the final reports. Any suspicion on the part of the radical critic that, because the proposed franchise qualifications might result initially in a White majority of the electorate, they in truth constitute, in a concealed form, an entrenchment of White privilege, would be equally devoid of foundation. As a matter of fact, as already indicated, the recommendations as to qualifications have been made without any evidence as to the numbers of persons of the various racial groups who would initially be enfranchised. Assuming, however, that White voters would initially be in the majority, the minority safeguards already referred to should effectively protect the non-White peoples against discrimination or oppression. Moreover, not only would such protection be thus negative in effect, but it would positively aid them in qualifying for the franchise by ensuring their equal participation with the White community in public funds appropriated for education and training and by removing economic handicaps imposed by discriminatory laws, such as the Group Areas Act and various provisions of the Industrial Conciliation Act. Furthermore, through a Senate elected as recommended below, minority communities would be enabled to exert an influence on legislation to an extent out of proportion to their voting strength.
10. The subject of franchise qualifications is inextricably bound up with that of the electoral system and the consequent composition of the House of Assembly. Here two questions are involved:
(a) Should electoral divisions be delimited so as to contain, as nearly as practicable, an equal number of voters per member of the House returned, or should “loading” be permitted, as at present, in favour of areas with sparse populations – viz. in favour of the rural areas?
(b) Should each electoral division return one member, being he who secures the largest number of votes, or should each division return several members elected on a basis of proportional representation?
“Loading” is unjust
11. We can perceive no equity or social value in loading in favour of the rural areas. Indeed where, as tends to be the case in South Africa, political divisions in some measure correspond to the urban-rural distinction, it is downright unjust. We therefore recommend that electoral divisions be delimited on the basis of an equal number of voters per member of the House, subject to a latitude of 5 per cent either above or below the basic quota which may, for practical reasons, be necessary, and subject to the proviso that a constituency should always fall within the boundaries of a province.
12. The advantages of proportional representation are that it prevents a political party from securing a majority of seats with a minority of votes, and, on the other hand, it ensures due representation in the legislature of minority parties. Its disadvantages are that it may involve constituencies that are too large, with consequent lack of contact between a member and his constituents, and that it may encourage a multiplicity of political parties, none of which is able to secure a majority in the House and hence to form a stable government. Actual experience, however, seems to indicate that this latter defect is much exaggerated.
We think that, under South African conditions, the advantages outweigh the possible disadvantages. Indeed the latter can largely be remedied by adopting a modified system, as in Ireland, whereby the country is delimited into multi-member electoral divisions each returning a moderate number of members through the technique of the single transferable vote.
Defects of existing system
The advantages of proportional representation are best appreciated in the light of the defects of the existing system. At present the Nationalist Party strength, though predominating in the rural areas, is comparatively evenly spread throughout the country. The Party has to fight for most of its seats and many of them are won by merely moderate majorities. The opposing Parties, on the other hand, enjoy support that is concentrated in certain areas, mostly the large cities. Many of their seats are won without Nationalist opposition or by very large majorities. This enables the Nationalists to secure a large majority of seats even if they have an over-all minority of votes. Again, the large minorities which oppose them in many constituencies are unrepresented. An illustration of this denial of representation to minorities is afforded by the 1953 General Election result in the Orange Free State. There the Nationalists, with a majority of votes in each division, won all thirteen seats. Yet 29 per cent of the votes in the province as a whole were cast for their opponents.
If our franchise qualification proposals made above were adopted the vast majority of non-White voters would be in the urban areas. Although this would naturally result in a considerable re-distribution of seats in favour of the urban areas, nevertheless the Nationalist over-all strength (assuming that most non-White voters were anti-Nationalist) would remain far out of proportion to their numbers.
As to the more remote future, the time must come when the African voters will be in the majority – indeed ultimately probably in a very large majority. Then – assuming the rise of an African nationalist party – in the words of the Tredgold Commission, “in effect, though not in name, there would be racial representation on the voters’ roll, and racial representation of the worst type, because, for all practical purposes, only one race would be represented.” Proportional representation, however, would accord representation to the racial minorities in proportion to the numbers in which they were registered as voters.
Investigate proportional representation
We refrain, however, from actually recommending the Party to adopt proportional representation as a policy at this stage, since its constitutional policy as a whole necessarily involves considerable radical reforms, and it would seem inadvisable to propose too many reforms at the same time, thus possibly giving an impression of a desire for innovation for its own sake. What we do recommend, however, is that careful consideration be given to the system of proportional representation and that a separate ad hoc inquiry into the subject be instituted.
13. We conclude our recommendations under this term of reference with the proposals that the qualification for membership of the House of Assembly should merely be registration as a voter and that the number of members of the House be between 150 and 175.
SAFEGUARDS AGAINST GROUP DOMINATION
14. Our third term of reference enjoins us to recommend safeguards against domination by any racial group over the others “through a reform of the Senate and/or otherwise”. An entrenched Bill of Rights, guaranteeing the fundamental human rights and liberties of the individual, irrespective of group membership, and equal protection of the laws, would, of course, provide such a safeguard to a certain extent. What we conceive is required under this term of reference, however, is a recommendation calculated to prevent legislation being forced upon any group to which it overwhelmingly objects, even if such legislation does not infringe fundamental rights and liberties, and even if it is not racially discriminatory. Such a safeguard or check must, therefore, be directed against a possible abuse of power of this nature by a majority of the House of Assembly representing one racial group or a combination of racial groups intent on oppressing another or others.
Since, in general, the essential function of a second chamber should be to provide safeguards against the tyranny of a majority – possibly a transient one – of a mass electorate exercised through deputies in the first chamber, it seems to us that it is in the composition and functions of the Senate that the provision of safeguards against the oppression of racial minorities is most appropriate.
THE COMPOSITION OF THE SENATE
15. In regard to the composition of the Senate, we considered two alternative schemes, and certain variants of each of them, which differ fundamentally in principle.
One such scheme envisaged a Senate consisting of representatives of the various racial communities, elected on separate rolls by the voters of each community who were qualified to elect members of the House of Assembly, the number of representatives of each community to be in proportion to the number of registered voters of such community, but subject to the proviso that the representation of no community should exceed 60 per cent of the Chamber.
The other scheme was for a Senate composed of representatives of the provinces in equal numbers (South-West Africa to have half the representation of a province) elected on a non-racial basis by proportional representation, either directly by the voters of each province as a single constituency or by an electoral college consisting of the members of the House of Assembly and the provincial legislature of each province.
Discussion of these alternatives brought to light the difficulty that neither in itself provided any safeguard for racial minorities against domination by a possible majority of the House of Assembly representing a particular racial community with preponderant voting strength among the electorate. Under either scheme such preponderant voting strength would be reflected, though possibly in a somewhat modified form, in the Senate.
Check on Assembly
Yet, as already indicated, our third term of reference does enjoin us to recommend constitutional safeguards “to prevent the exercise of unchecked power by any group in order to dominate any other group”, and this is evidently intended to be in addition to any such safeguards as might be implicit in a Bill of Rights, which is the subject of our fifth term of reference. Admittedly the third term of reference does leave it open to us to recommend the provision of safeguards, of the nature contemplated, “through a reform of the Senate and/or otherwise”, but, apart from the Bill of Rights, none of us suggested a check upon the power of an Assembly majority other than that provided by the Senate.
Indeed we do not think that a Bill of Rights, important as it is, is capable of embracing the whole field of minority safeguards which the Party envisages as necessary in the circumstances of South Africa. A government entirely controlled by a particular racial community, even though not equipped by law to discriminate on racial grounds, can in practice exercise such discrimination in an important and immense range of administrative matters involving the exercise of discretionary power. Furthermore, laws which, though not in form discriminatory, may in fact outrage a particular community by interfering with the customs or undermining the standards generally prevailing among them. A law, for instance, prohibiting domestic brewing, though non-discriminatory in form, would be deeply resented by Africans so long as they retain their present customs. Again, a law authorising dilution of specified categories of skilled labour might in fact strike at the wage standards of a particular community which happened almost exclusively to provide the workers concerned
Communal election discussed
The advantage of a communally elected Senate was conceived by some of us to be that it could be used for the purpose of ensuring that the Constitution could not be amended without the consent of the representatives of each racial community, whilst, at the same time, preserving the power of Parliament to alter the Constitution. The latter could itself provide that a bill for its amendment should require not only a majority of the Senate but also a majority of the Senators representing each community. We do not think, however, that any advantages arising from this consideration are sufficient to outweigh the disadvantages of separate racial representation for ordinary legislative purposes. Such disadvantages are obvious, the principal one being the tendency to stereotype inter-communal differences and conflicts instead of fostering common loyalty. And we think that it would be a mistake to constitute one of the chambers of the legislature in a manner that rendered it unsuitable for ordinary legislative purposes solely in order to render it suitable for the exceptional function of constitutional amendment. The latter topic, as we have already pointed out, falls to be dealt with in our final report.
It involves consideration of a number of matters of which that of racial minority safeguards is only one. The entrenchment of individual liberties is, for instance, an important principle to maintain even if racial issues are not involved. Again we might recommend a federal structure of government. Normally the amendment of a federal constitution requires, in some measure at least, the assent of the peoples or the legislatures of the constituent states or provinces as well as of the central legislature. Even if the necessity for the assent of the representatives of each racial community to constitutional change is ultimately recommended, this could be expressed through a constitutional convention specially elected for the purpose on a communal basis. We do not think, therefore, that considerations relating to constitutional amendment should be decisive in relation to the composition of the Senate.
It would, of course, be possible to provide for group safeguards through a communally-elected Senate by giving to the representatives of each community, or to a given majority of such representatives, a veto upon legislation to which they objected. This, however, might enable quite a small minority of the chamber seriously to impede the ordinary business of Parliament and thereby to generate the gravest inter-racial friction.
We have rejected, therefore, the principle of communal representation in the Senate. At the same time, we do not feel able to recommend a chamber constituted without any regard at all for the existence of different racial communities. For reasons already given this would amount to ignoring the injunction to us to recommend minority safeguards.
16. What we recommend, therefore, is a Senate directly elected by the Parliamentary voters on the common roll in specially delimited constituencies by a method which ensures that no Senator shall be returned who does not enjoy at least some considerable measure of support among the members of each racial community whose votes form a significant proportion of those cast in his constituency.
The suggested method is that the candidate at a Senate election who receives the largest number of votes shall be declared elected, provided that his votes include at least one-fifth of the total votes cast by members of each community. This would ensure that no candidate who fought a racial campaign aimed at a minority would be likely to be elected.
Example: In an Eastern Cape constituency 10,000 votes are cast – 6,000 European, 3,000 African and 1,000 Coloured for two candidates, X and Y.
X gets 1,300 European votes, 2,200 African votes, 700 Coloured votes, Total: 4,200.
Y gets 4,700 European votes, 800 African votes, 300 Coloured votes, Total: 5,800.
Y is returned. He has the highest number of votes. His appeal has evidently been mainly to the European voters, who are in a considerable majority. But he has received sufficient African and Coloured votes to give him more than one-fifth of the total votes cast by each of these communities.
If, however, the candidate with the largest number of votes does not receive at least one-fifth of the votes cast by the members of each community, then the candidate would be elected who has received the highest proportion of the votes of all the communities concerned. In practice, this would be the candidate whose ratio of the votes of the community which favoured him proportionately least is higher than any other candidates’ ratio of the votes of the community that favoured him proportionately least.
Thus, assume that the above example is adapted as follows:
X gets 1,200 European votes, 2,500 African votes, 800 Coloured votes, Total: 4,500.
Y gets 4,800 European votes, 500 African votes, 200 Coloured votes, Total: 5,500
Here X would be returned because Y, although he heads the poll, has failed to get one-fifth of the African votes and X’s proportion of the European vote is higher than Y’s proportion of the African vote.
17. It must be remembered that there might be very small minorities of Indian and/or Coloured voters in a Transvaal constituency, of Indian in a Cape and of Coloured in a Natal. It is suggested, however, that such small minorities should only be counted as separate communities for this purpose if the number of votes cast by voters belonging to them amount to at least 15 per cent of the total number of votes polled in the constituency.
Size of Senate
18. As is clear from the foregoing, the Senate would be elected in specially delimited constituencies. We think that this chamber should be about a third in number of the House of Assembly, and that the provinces should be equally represented therein, and South-West Africa represented by half the number representing a province. On this basis we suggest a Senate of 54 members, 12 from each province and 6 from South-West Africa. Each province and the latter territory would then be delimited into a corresponding number of constituencies returning one Senator each according to the system just recommended. If later provincial boundaries were altered and new provinces delimited, or if extra Union territories were later admitted to the Union, there would have to be either a redistribution of Senate provincial representation or the numbers of the Senate would have to be increased. The same, however, would have to apply to the House of Assembly, so that the proportion in numbers of each House to the other could be maintained.
Term of office
We recommend also that the term of the Senate be the same as that of the House of Assembly, but that elections for each chamber take place on different days.
THE FUNCTIONS OF THE SENATE
19. The object of the system just suggested is to provide for a Senate representing, in some measure at least, non-racial opinion, as a check upon a racial majority in the House of Assembly. The efficacy of such a check obviously depends on the powers of the Senate. If, like the present Senate, it has powers of mere delay such efficacy will not be substantial. If, like the second chambers of the legislatures of nearly all the states on the American continent, and in many other parts of the world, its assent were required for all legislation, the efficacy of the proposed safeguard would be very substantial indeed.
Since we take it that what is required of us is to recommend a safeguard that is effective, not illusory, we have no hesitation in proposing that the power of the Senate should not be limited to that of mere delay and that the House of Assembly should have no power to force through legislation in the face of opposition by the Senate, save, for reasons given below, in the case of money bills.
This, however, poses the question of the resolution of deadlocks between the chambers. In some countries – e.g. USA and Canada – there is no machinery, other than by way of consultation, to deal with such a situation. Where, as in the USA, the executive is elected separately from the legislature this does not greatly matter. It simply means that the government’s legislative programme must be limited to such measures as it can persuade both chambers of the legislature to accept, having regard to their composition from time to time. In countries like Canada, however, where the system pertains whereby the government consists of the party or group able to command a majority in the first chamber, the practical power and influence of the second chamber has tended to wane, despite the power of veto on the first chamber’s legislative proposals that it theoretically possesses. For the exercise of that power involves assumption of the responsibility of preventing the government of the day carrying out its policy. We would emphasize, however, that the tendency of second chambers not to persist in the exercise of powers of veto that they possess is a matter of constitutional practice only. Where, as we have proposed, a second chamber is expressly constituted so as to provide important constitutional safeguards, and not merely as a house of review, there is no reason why, as a matter of constitutional practice and understanding, the government of the day should not be required to command a majority in both chambers.
Resolving a deadlock
20. We think, however, that there should be machinery for resolving a deadlock between the Houses in so far as this is consistent with the efficacy of the safeguard inherent in the composition of the Senate. We therefore recommend the adoption, with certain important modifications, of the system which prevailed in South Africa prior to 1955. According to that system, if the Senate rejected an ordinary bill passed by the House of Assembly in two successive sessions the deadlock was resolved by a joint sitting of the two Houses. In the case of a money bill the deadlock was thus resolved after one rejection by the Senate and the latter chamber was unable to amend such a bill.
We recommend reversion to this system, save in the case of money bills and save that, in the case of an ordinary bill that has twice been rejected by the Senate, it should not be submitted to a joint sitting unless Parliament has first been dissolved and a general election held for the members of both Houses. It should then be submitted to a joint sitting of both Houses of the new Parliament and should require a two-thirds majority of such sitting for its adoption.
In the case of rejection of a money bill, we recommend that if it is again agreed to by the House of Assembly it should become law without the concurrence of the Senate or of a joint sitting. The reason for this recommendation is that, if there were substantial variance between the Houses, a government supported by a majority of the Assembly would at least be enabled to administer the country even though it could not implement its general legislative programme. It would, of course, be prevented from using its financial powers so as to discriminate racially by the Bill of Rights.
We think, however, that, as in the case of the United States, certain special functions should be entrusted to the Senate in addition to ordinary legislative ones. We do not, however, suggest that these be the same as those of the USA Senate, since we do not approve of the necessity for senatorial approval of judicial appointments nor of treaties with foreign powers. We do, however, recommend the following special functions:
(a) Senatorial approval should be required for important public appointments other than ordinary civil service promotions and appointments to the judiciary.
(b) Standing committees of the Senate might investigate, review and report upon the administration of each government department.
(c) Private bills might be required to originate in the Senate and the select committee proceedings which are – or should be – the most important part of the consideration of a private bill might be confined to a select committee of the Senate, the report of which would be laid before the Assembly also.
21. The advantages of our recommendations, as we conceive them, are probably best expounded by considering and disposing of conceivable objections thereto. Thus:
(a) Objection might be raised on the ground of complexity and the consequent difficulty of explaining the proposed reform to the public. This objection seems to us to confuse substance with form, objective with machinery for its attainment.
The substance of our proposal is perfectly simple. It is that the Senate shall consist of deputies of the enfranchised electorate who enjoy at least some measure of support from the voters of all racial communities in each constituency. As a concept, this seems to us to be one of the utmost simplicity. Nor do we regard the machinery whereby effect is proposed to be given to this concept as beyond the wit of any elector who seriously wants to understand it. Probably many will not want to do so once they are satisfied with the soundness of the principle itself.
Strain of sectional veto
(b) A further possible objection may be based on a doubt as to the effectiveness of the proposal as a means of providing a group safeguard. It might be suggested that legislation should not be forced upon any community without the consent of a majority of the representatives elected by it, or, at least, without the consent of some minimum proportion of such representatives. If the validity of this objection were admitted it could, of course, only be met by a system of separate, or communal, representation in the Senate. The undesirability of such a system has already been noticed above. We would emphasize here that the obstructive potentialities of an absolute sectional veto might well place strains upon the constitutional fabric which it would prove incapable of sustaining. Our proposal, on the other hand, is designed to provide, as a check upon a possible racially intolerant majority in the Assembly, a Senate composed of men who, from the very nature of the system whereby they are elected, are bound to weigh up, and, if possible to reconcile, the conflicting claims of all the racial communities affected by a particular legislative proposal. A chamber of this nature would, in effect, be capable of acting as an arbitrator between the majority and the minority in the House of Assembly. When it is borne in mind that the element of race conflict could only arise in respect of proposals that do not discriminate on racial grounds – discriminatory proposals being entirely precluded by the entrenched Bill of Rights – we cannot conceive what more effective safeguard could be required than this by anyone not intent on pressing sectional claims to the point of bringing the legislative machine to a standstill. And there is an additional possible factor. Without wishing to anticipate our final report, it should be borne in mind that we may recommend the transformation of the Constitution as a whole from a unitary to a federal one.
In the latter event we may also recommend the creation of new provinces comprising those parts of the country, like the Transkei and Zululand, where Africans are in a great majority. In other provinces, therefore, the disparity in numbers between Africans and other communities would not be so great. Some provinces, therefore, would be almost entirely Black, whilst others would be multi-racial with a reasonable measure of parity between the various communities. Federation would involve devolution on these provinces of very wide powers – indeed complete powers over many subjects which closely affect the day-to-day lives of the citizens, such as education, police, local government, public health, land tenure, use of natural resources, town planning, etc. Our recommendations in respect of provincial legislatures could hardly differ in principle from those we have made in regard to the central Parliament. And the Bill of Rights would, of course, bind provincial legislatures as well as the central one. These arrangements would also, therefore, be a factor militating against the possibility of any racial community, through numerical predominance of its members on the common voters’ roll, being in a position to dominate others.
(c) The objection just dealt with is based on the consideration that our proposal would afford insufficient safeguard against the operation of the majority principle in a country where Europeans, Coloured persons and Asians comprise minorities as compared with the Africans. But there also falls to be considered the opposite objection, viz. that our recommendation attaches too slight a weight to the majority principle, since the will of the representatives of the majority of the electorate in the House of Assembly could be seriously checked by a chamber whose members might represent a minority of such electorate. Critics along these lines would condemn the proposed system as “undemocratic”. To those, however, who are not frightened by words, it is suggested that such criticism is adequately met by the following considerations:
(i) Candidates at a Senate election would know in advance that success depended on racial moderation and the support of some proportion, at all events, of all communities. It is therefore improbable in practice that candidates representing minorities would be returned. If a candidate heading the poll on a common roll were unable to secure the votes of at least a fifth of the persons belonging to every major community participating in the election, this would merely serve to demonstrate the dangerous degree in which racialism still persisted in South Africa and the importance of preventing its being given its head.
(ii) In any event, even in democratic theory, there is nothing sacrosanct about the majority principle. It is merely a convenient technique which, like other techniques, is only justified to the extent that it serves the ends that it is designed to serve. In a democracy the most important of these ends is the liberty, welfare and security of individuals and groups. Majority rule is certainly an effective – indeed indispensable – means of safeguarding society against the domination of anti-social minority interests based on the privileges of wealth, birth, etc. But it stands to reason that majority power is capable of itself being used as an instrument of oppression, as where it imposes disabilities on ethnic or religious minority groups, or where it seeks to destroy those individual liberties whereby the minority opinion of today may succeed in transforming itself into the majority opinion of tomorrow.
Checks and balances
It is therefore fully in accordance with democratic theory and practice to provide checks upon majority rule to prevent its being used oppressively, and this, in turn, involves according special representation, or special powers, to minorities, whether in the legislature, or in the constituent body (if such exists) for amending the constitution, or in both. This, indeed, is of the essence of a rigid constitution, involving a government of checks and balances.
Two examples from the United States Constitution readily illustrate our meaning. That Constitution cannot be amended in any respect – this includes, of course, the entrenched Bill of Rights – save by the assent of a two-thirds majority, both of the Senate and of the House of Representatives and that of three-quarters of the States expressed through their legislatures or through special State conventions. An enactment, therefore, such as our Group Areas Act, which clearly would infringe the Bill of Rights, could be vetoed by a minority representing a quarter plus one of the individual States or one-third plus one of the Senate, or one-third plus one of the House of Representatives. But the entrenchment of a minority veto also extends to the general field of Congressional legislation. The House of Representatives is elected by constituencies proportionate to population. A decision of a majority of the House, therefore, is a decision of the deputies of a majority of the electorate as a whole. But, to acquire the force of law, a decision of a majority of the House requires the concurrence of the Senate, as also of the President. The population of the various States differs vastly, and, in order to safeguard the interests of the less populous States, each State is entitled to equal representation in the Senate, irrespective of its population.
If the Senators representing all the smaller States voted together, they would form a majority of the Senate. But those States taken together have a total population of not more than one-fifth of that of the United States. Hence in regard to all legislative proposals, the representatives in the Senate of a mere fifth of the electorate have a veto power over the representatives of a majority of the electorate as reflected by a decision of the House of Representatives. Yet few, presumably, would deny that the United States is a “democracy”. It is true that this safeguard is not in practice used. In practice the representatives of the smaller and larger States respectively do not vote together as separate blocs. But the safeguard just explained remains entrenched in the Constitution in case they should. Similarly with our proposal in regard to the South African Senate, we have already given our reasons for thinking that voters on the common roll would not vote at Senate elections in racial blocs. If they did not, then the ordinary majority principle would prevail. Only if they did would the safeguard operate and a minority would return the representative of the constituency. But that minority would be the very one which should have this power in the event of a racial clash. For it would represent the highest common factor of opinion as between the racial communities involved in the clash.
Prevents racial alignments
In the event, therefore, of a nation-wide electoral struggle between, say, a predominantly White party and a predominantly non-White party, the comparatively non-racial Senate would provide a valuable check upon the majority of the Assembly commanded by the victorious party. But the very fact of the existence of such a safeguard should be sufficient, in practice, in itself to prevent a racial party alignment of the kind postulated.
The essential consideration to bear steadily in mind in this connection is that it is impossible to have constitutional safeguards for individuals or groups or both, and, at the same time, to give free rein to the “democratic” majority principle. For the latter principle is the antithesis of the former and automatically defeats it.
Classification of voters
(d) A final objection that should be noticed, and, to the extent that it is valid, met, is that our proposal, although it discards the principle of communal representation, does involve the racial classification of voters for the purpose of Senate elections. In terms of the recommendation, however, the race of a voter would be a relevant factor only for the purpose of computing the result of a Senate election and then only in order to ascertain the extent of inter-communal agreement. It must be conceded, however, that the very fact of having the voters of the various communities separately computed for the purposes of comparison presupposes the existence, or at least the possibility, of some measure of conflict between them, and hence might tend to foster racial difference. We believe that the stubborn facts of our society make this necessary today. However, we look forward to the day when the racial factor may cease to be an important divisive factor in our politics.
Elimination of system
We therefore recommend machinery for the ultimate elimination of the system we have proposed. The recommendation is that, on memorials being presented to the government signed by at least one-twentieth of the Senate voters of two or more communities, referenda should be held among the voters generally of each such community on the question as to whether they should merge into one community for the purpose of Senate elections. If a majority of each community votes in favour of such merger, effect should be given to such decision. If, in the future, race prejudice were so far eliminated from South African society as to induce all communities so to decide, the Senate would then be elected by ordinary majority vote.
22. As to the qualifications for membership of the Senate, save as to age, we see no reason why these should differ from those of the House of Assembly. We therefore recommend that registration on the voters’ roll should be the qualification here also, save that, as was the case prior to 1955, a candidate should be at least thirty years of age.
23. Taken as a whole, we believe that the primary virtue of the system we have recommended is that, in the complex and inflammatory racial situation in South Africa, it would place a premium on racial moderation. As we have emphasized, the Senate would consist of deputies each of which enjoyed a considerable measure of support among all the various communities. The Senate, moreover, would be a powerful element in the legislature, and elections of its members would almost certainly influence Assembly elections also. For, although a majority of voters on the common roll would belong to one particular community – initially Europeans, later Africans – a party appealing for votes at an Assembly election would have to consider Senate elections also. Since success in the latter would depend on racial moderation, such party could scarcely risk the advocacy of extremist racial policies at Assembly elections.
Such a system, therefore, taken in conjunction with a Bill of Rights, should provide adequate guarantees to all communities against oppressive legislation and accord to each a share in the government of the country. For, having regard to the composition and powers of the Senate, it would be difficult in any conceivable circumstances for a government to function effectively without some support from all or most racial communities, and certainly without the support of elements among both Europeans and non-Europeans. In the day-to-day business of administration, such multi-racial government seems to us to provide the best practical guarantee of inter-racial co-operation.
Donald B Moltento
(Subject to Note (i) attached to this Report)
Edgar H Brookes
A van der Sandt Centlivres
(Subject to Minority Report on Franchise)
RE van der Ross
(Subject to Minority Report on Franchise)
(Subject to Note (ii) attached to this Report)
The Hon. Leslie Blackwell, during the Commission’s discussions on the composition of the Senate, advanced a proposal for a Senate constituted on the existing lines, but with about a third of its members elected separately by the African and other non-White communities. Mr Justice Blackwell, however, was not able to remain until the conclusion of the discussions on the Senate. He did not, therefore, assent to the proposal in the Majority Report in the particular respect.
Mr Selby Ngcobo accepted membership of the Commission, but shortly thereafter left the Union for Rhodesia. He has, however, studied all the Commission’s documents and has intimated that he supports the report save that he personally favours the ideal and principle of universal adult franchise and in the meantime prefers two voters’ rolls on the lines recommended by Dr De Beer and Mr Oppenheimer, provided the qualifications are so fixed as to give effective power to the groups concerned.
Donald B Moltento
by Dr ZJ de Beer and Mr HF Oppenheimer
I. FRANCHISE QUALIFICATIONS
WE ARE in agreement with the recommendations of the majority of the Commission in regard to the House of Assembly except those relating to the combined educational and economic qualification for the ordinary roll and the desirability of a special roll.
The majority has recommended that there be no special roll, and that Standard IV, plus either earnings of £25 per month or occupation of property to the value of £500 should constitute a qualification. While appreciating the arguments in favour of these suggestions, we consider it essential that the full franchise be obtainable only on the basis of a qualification which indicates a fair degree of civilisation. It does not seem to us that this can be assured by an educational qualification lower than Standard VI. As to the earning qualification, we accept that £30 per month is a high wage for a non-European today, but in view of the trend towards a general wage increase we suggest that it will not prove unduly restrictive.
Special Voters’ Roll
It is, of course, true that the qualifications we propose are unlikely to enfranchise more than a small percentage of non-European voters in present circumstances. For this reason we think it advisable to leave provision for those “persons not so qualified” to have representation in Parliament. We therefore propose that there should be a special voters’ roll, subject to the following conditions and qualifications:
(a) Representation on the special roll should be available to all who can satisfy a literacy test and who earn £15 per month continuously for two years. No voter should be permitted to register on both rolls.
(b) Special roll voters should elect in their constituencies 10 per cent of the members of Parliament: Provided that if the number of voters registered on the special roll drops below 20 per cent of the number registered on the ordinary roll, then the number of the special roll seats should be reduced pro rata.
(c) The delimitation of special roll constituencies should be the duty of the delimitation commission; elections in these constituencies should be held during the three months preceding each Parliamentary general election.
This last paragraph requires explanation. It may be agreed that the special roll voters, being less sophisticated, will be more susceptible to demagoguery than the ordinary roll voter. In so far as this is true, there would be a brake on exploitation of special roll voters by political parties who were simultaneously campaigning in ordinary roll constituencies.
To sum up, the qualification which we propose for election of members of the House of Assembly are:
(1) Standard VIII.
(2) Earnings of £500 per annum for two years, plus literacy.
(3) Standard VI, plus either £360 per annum for two years, or occupation of property valued at £500.
Special roll voters
Literacy plus £180 per annum for two years.
In all cases a spouse may be held to have the economic, but not the educational qualification of the other.
ZJ de Beer
II. SENATE PROPOSALS
1. Dr De Beer MP and Mr Oppenheimer have asked me, as Chairman of the Commission, to formulate their proposals on the composition of the Senate which are in disagreement with those contained in the Majority Report.
2. They consider that the Senate should consist of representatives of each of the four main racial communities, viz. Europeans, Africans, Coloured persons and Asians. These should be elected by the voters – registered on the ordinary voters’ roll as envisaged by their Minority Report on the Franchise – of each racial community in proportion to the numbers of voters so registered, provided that no community should be represented by more than sixty per cent of the members of the Senate.
3. They appreciate that measures having the effect of discriminating adversely against members of any community would be invalid as infringing the Bill of Rights, which will be dealt with in a later report, but think that there are a number of matters, involving contact between members of the various Communities in various capacities, in regard to which certain types of legislation even though not racially discriminatory, might be strongly objected to by one or more of such communities. For instance, a measure prohibiting the provision of separate institutional facilities, even on an equal basis, or one having the effect of “dilution” of skilled wage rates, might be strongly objected to by Europeans. Similarly, a measure prohibiting domestic brewing might be strongly objected to by Africans. Measures of the kind envisaged should, in order to pass the Senate, require the agreement not only of a majority of the members of that Chamber but also the agreement of one-fifth of the representatives of each racial community therein. By this means the representatives of any racial community would be in a position to veto any legislation to which, in their view, their constituents strongly object.
4. It is not practicable to attempt to envisage all conceivable types of legislation that should be subject to this safeguard. The only practicable course, therefore, is to enumerate a list of subjects in regard to which proposed legislation should be so subject. Unless the list is made fairly wide, the safeguard would be a weak one. It is suggested therefore, that legislation on the following topics should fall within its ambit:
(a) Conditions of employment generally.
(b) The public service.
(c) Military service.
(d) Housing and residential accommodation generally.
(e) The provision and use of public amenities, including transport facilities, public buildings, etc.
(f) The provision, use and administration of public institutions, including prisons and reformatories, hospitals, etc.
(h) Intoxicating liquor.
Donald B Molteno
by Dr S Cooppan
1. I find myself in substantial disagreement with the analysis and the recommendations made under the sub-heading “Franchise and Membership of the House of Assembly”.
2. Before I deal with what I cannot support I should like to state that I am in substantial agreement with the rest of the report from that point onwards, except for the reference to South-West Africa. The status of South-West Africa is a controversial one. We risk clouding the issue and losing sight of the valuable contribution now made in this portion of the report to the achievement of a political modus vivendi in the plural society of South Africa.
I think we should grasp the fact that this section of the report deals directly and frankly with the central problem of our political relationships, which is stated clearly under paragraph 3 of the six paragraphs constituting our terms of reference (page 1). To quote: “To provide constitutional safeguards… to prevent the exercise of unchecked power by any group in order to dominate any other group, White or non-White.” If we also begin to grasp the idea that the most effective guarantee for the peaceful co-existence of the ethnic groups (assuming that we reject ideas of domination and counter-domination in our future conduct) lies in some such constitutional framework and functioning, in so far as constitutional government is respected, then the focus of our attention and creative genius would be shifted to where it should be concentrated. That is precisely to the measures considered in this portion of the report. The constitution should, of course, be supplemented by active efforts to reduce gross inequalities of income, education and other social and cultural opportunities.
3. It is for this reason I feel that the first portion of the report, with which I disagree, has somewhat misjudged the relative political importance of the separate terms of reference, and has placed undue emphasis upon the necessity for confining the franchise, for the foreseeable future, to a highly select section of the community, drawn from the White and non-White sectors. The wish expressed for a more sophisticated, educated, self-disciplined, critical and responsible electorate is not anything new in the sphere of government. Nor is its desirability, if it could be attained in a day, speaking metaphorically, a matter for debate. But the practicability of reasonable attainment, on the mass scale, in the immediate future is very much to be questioned. Indeed, the matter of developing a mature electorate is a continuing task of democratic government. But enfranchisement, in principle, cannot thereby be delayed long against the challenge of fundamental human right. And, whether, until such time as this occurs, it is politically possible, in the light of the tempo of current political developments within and without the country, to keep a significant proportion of the adult population disfranchised, as this report actually recommends (and here, I believe, quite contrary to the terms of reference), is what is seriously questioned. The conditions of political instability are by no means removed by creaming off the educationally and economically more advanced. If the less advanced, or the relatively more underprivileged sections of the community are to be relegated to an inferior and subordinate political status; and if they should begin to feel that they are a group of political outcasts, as they would in fact be, then we would have made no progress at all in achieving a reasonably stable political solution.
I think the suggestions made violate universally accepted principles and fundamental human rights (which the Progressive Party Congress, by the resolution embodying the terms of reference, is convinced of the need to uphold) without gaining anything by the sacrifice thereof. I wish to reiterate Article 21 of the Universal Declaration of Human Rights by the United Nations Assembly:
(i) Everyone has the right to take part in the government of his country, directly or through freely-chosen representatives.
(ii) Everyone has the right to equal access to public service in his country.
(iii) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedure.
Any departure from these fundamental rights of man cannot be convincingly justified on grounds of inherent virtue but, frankly, on grounds of expediency alone.
Nor do I believe that a special or “B” roll of voters for those who cannot satisfy the high qualifications prescribed is an effective solution. It is not a device which can be sustained for long. It will be subject to tremendous pressures – pressure to lower the qualifications, and I do not think this can be resisted for long. Unless expressly acknowledged as a temporary, phasing device, in the advance towards the implementation of the above Article 21 of the Universal Declaration of Human Rights, I cannot support it. In this regard I wish to quote Sir John Maud with approval:
“There are few occasions in history when a privileged section of any community has succeeded even in knowing what are the needs and just demands of the underprivileged, still less in satisfying them. Certainly it would be difficult to name a city in any part of the world in which the governing class has either known or done what justice demanded for the poorer and more needy sections of the community, so long as those sections have had no effective say in the government of the city.”
(City Government: The Johannesburg Experiment, 1938)
What Sir John Maud had to say of city government is equally applicable to the national government. I think we have to come to terms with ourselves and the accepted political mores of the twentieth century. We have to seek other ways of blocking or tempering the possibilities of abuse of power by a majority which might not yet have the experience and sophistication of the governing class. I think we are creating precisely such an instrument in the second portion of the report from paragraph 10 onwards. Is it possible that we do not have sufficient faith in these constitutional safeguards, and
that we are, therefore, consciously or subconsciously seeking an additional safeguard by these devices of qualified franchise and special representation?
The supporting argument for a slowly-expanding, sophisticated electorate, derived from a fear of preponderantly inexperienced, illiterate and poor electorate, is very much weakened by repeated statements to the effect that effective safeguards against the abuse of power is provided for by other constitutional arrangements. In the eventuality of an initial White majority being returned, within the framework of the proposed high qualifications, the non-Whites are reassured of protection against continued exploitation and oppression by the self-same constitutional safeguards. Surely this is an argument that can be used by the other party too, which stands for rapid implementation of its fundamental human right to universal and equal suffrage.
I am of the view that the second term of reference as drafted has gone further than this report, and is reconciled to the principle that everyone has the right to a vote by conceding that special provisions must be made for the representation of persons not eligible to the common roll or “A” roll by reason of their lower qualifications. But it has not conceded that every vote should have the same weight. Nor, on the other hand, has it laid down anywhere how big or small the “B” roll should be. That is left to the Commission to consider and recommend; and, in doing so, I believe, the Commission should also bear in mind the desire of the Progressive Party Congress to “guarantee the fundamental human rights and liberties of the individual, irrespective of race or colour”. I doubt very much whether this injunction confers authority on or grants the liberty to the Commission to disregard the definitions of political rights of the individual expressed by the United Nations, quoted earlier on. Nor do I think due regard for fundamental human rights can be reconciled with discrimination in the matter of political rights on grounds of income, vested in property, or formal education attainment.
Tests an “expediency”?
If this view is accepted then the Commission must frankly interpret the present necessity for defining degrees of civilisation and setting up educational, income and property tests for qualification as an expediency, necessitated by the method by which the Progressive Party hopes to come to power, which is by convincing the enfranchised White electorate. Now that is another matter, a matter of political tactics (that is, what is politically acceptable at the time), but it should not be allowed to compromise widely accepted political principles and practice. The Commission is bound to weigh whether its recommendations, even within the narrow limits of the terms of reference, will assure political stability, harmonious co-operation and enduring mutual confidence, which I believe is the fundamental objective of the Progressive Party.
Therefore, I do not think that I am going beyond the terms of reference and the preamble to it, if I say that the broad suggestion made in the second term of reference by the Progressive Party Congress should not be over-emphasized out of all relation to the other terms of reference and the checks and balances sought therein. We should interpret the second term of reference not as fixed and unchangeable modus vivendi but as a flexible modus operandi, whose limitations will disappear once we view the whole machinery of an “A” roll and a “B” roll as transitional measures to universal and equal suffrage. Then the qualifications suggested, which undoubtedly impose restrictions upon an individual’s fundamental human right to equal suffrage, could be viewed honestly as a temporary concession to human fears, anxieties, prejudices and lack of mutual confidence and trust. The two-roll system is possible of acceptance by practical men as a device to buy time within which people of different races learn to live together and develop this much-needed mutual trust and respect. The “A” roll membership has really an ambassadorial role of building good relations, and preparing the ground for the easier acceptance of the less qualified into the framework of a common and equal citizenship. I can accept the “A” roll and “B” roll only within this framework of thinking. A sense of urgency will be imparted to the task of raising the economic and cultural level of the “B” roll members only if there is the ever-present reminder that people cannot be kept on an inferior voters’ roll for ever.
Standards set too high
I also wish to state that I disagree with the unrealistically high standards of qualification proposed in the report. Whatever the outcome of my statement in the previous paragraph, I wish to recommend serious consideration be given to this aspect. I adhere to the educational, income and property qualifications I recommended in my comments on the First Draft Interim Report. Before any hasty decision is taken on the matter I suggest other experts should be called in to pronounce on the present educational and income levels, and the monetary values of the dwellings owned or occupied by the Africans, in particular, in the urban areas. The level of wages adopted bear little relationship to the present realities of the situation. I am not optimistic that these levels can be raised soon enough to do justice to the political aspirations of the majority of the people. We should avoid the danger of creating the impression in the minds of the non-Whites that we are out of touch with the realities of the economic situation, and are merely trifling with a serious problem.
On the other hand, if these high qualifications are put forward to secure the support of the enfranchised White electorate, and enable the Progressive Party to come into power, then I have nothing to say, except that it was unnecessary to have included non-White members on the Commission at this stage. The non-White point of view would have been put forward at the proposed National Convention, and the attitude to the proposals of a party in power could very well be different from what it is now.
11th August, 1960
Though we are precluded by the terms of reference, in accordance with the chairman’s learned interpretation, from considering adult universal franchise, I am of the view that if the Commission is to preserve a sense of realism about its work then it must conduct its deliberations and frame its proposals, against the historical background of rapidly advancing national independence in Asia and Africa. The practical effect of this movement has been to advance the political status of the individual, at one stroke, by the extension of the adult universal franchise.
This is a development to which we cannot close our eyes for it obviously influences the psychological framework of political aspirations of the non-Whites in South Africa. Nor can we hope to work out a political modus vivendi in isolation from, and very much in advance of, contemporary world thought on the question of the right of the individual to political participation. The academician can, and should, speculate in this independent and untrammeled manner but that certainly is not expected of this Commission, which is very much circumscribed by political realities and practical propositions.
Basis for Negotiation
The proposals that emanate from this Commission should have a reasonable chance, if not of immediate acceptance by all the representatives who would be invited to the proposed National Convention, at least of being considered worth while as a basis for discussion and negotiation.
It is therefore important to bear in mind the psychology of the nationalism that is sweeping through Asia and Africa. As I interpret it, it is a resolve to assert one’s personal and racial human dignity and status of equality after decades of foreign domination. Rightly or wrongly founded on fact or fancy, the symbol of that achievement in these areas is the right and the opportunity of the individual to exercise his vote. Even if the masses of illiterate tribesmen do not understand it precisely in that way, that is not so important for the literate and articulate leadership will see to it that they demand it as a symbol of their independence, freedom and achievement of personal dignity and status in a colonial society.
This leadership, let it be remembered, receives a tremendous moral support for its claim to universal and equal suffrage from Article 21 of the Universal Declaration of Human Rights by the United Nations Assembly, to quote:
(1) Everyone has the right to take part in the government of his country, directly or through freely-chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedure.
Thus there is an additional reason for proceeding cautiously in regard to proposals for a qualified franchise which will disqualify a large, or significant proportion of the inhabitants of a country.
2. The arguments advanced for a qualified franchise in Section 4 of the Draft Interim Report reflect the desire to establish what one might term “a sophisticated democracy”, a condition which does not exist today even in the homelands of democracy in the West. I think it is unrealistic to press the argument along these lines, and will certainly not convince the non- Whites in South Africa or elsewhere. It might prove to be difficult to eradicate the suspicion that such ideas of a highly-refined and streamlined democracy for South Africa are in truth arisen from the desire to entrench White privilege and power for the foreseeable future.
The written expressions of opinion on the draft interim report tend to create the impression that in the minds of some members of the Commission the probable reaction of the enfranchised White electorate weighs heavily, and, therefore, suggestions are made to raise the proposed franchise qualifications even higher, or at least not to lower them any further, presumably with a view to allaying the fears and prejudices of the White electorate. I can understand and appreciate the difficulties of freeing oneself from this frame of thought.
Desire for dignity
But I do want to stress that the same sense of realism requires one to look at the thought processes and the alignment of forces on the other side of the colour line; and to pause to think over the gap between non-White expectations and the current proposals. On one side you have people conscious of these deprivations, who not only wish to exercise an effective brake upon the unchecked abuse of power hitherto but also wish to satisfy their desire for a status of equality and respect for their human dignity. The members of the Commission can judge which emotion is the more powerful of the two.
I do not think it is the function of this Commission to justify the qualified franchise. But it has the responsibility of pointing out the difficulties inherent in the task of setting franchise qualifications in a growing world pattern of universal suffrage.
3. I do not draw the same conclusions from the extract quoted from Strachey’s Contemporary Capitalism on page 5 of the draft interim report. If anything, the pointer in the extract is towards equalisation of opportunities and the eradication of economic and cultural inequalities as positive steps towards ensuring the stability of representative institutions. It does not suggest that stability would be attained by concentrating power in the hand of a few “qualified” individuals in the midst of a large “disqualified” mass. The condition of disequilibrium would still remain a threat to stability.
Shift from race to class
I doubt the wisdom of attempting to create and crystallize class divisions amongst the non-Whites in the dilemma of avoiding the universal franchise. The area of conflict would merely shift from race to class, and the letter form could be equally unpleasant.
4. I would be prepared to view the qualified franchise as an expedient to effect the transition from the present state of disfranchisement of the majority of the non-Whites to universal enfranchisement, in a gradual and progressive evolution. The time periods over which this transition could be staged is a matter for negotiation. It can be a period of intense creative activity directed towards raising the educational, cultural and economic standards of the masses, and especially in the multiplication of sound leadership eligible for public election to the House of Assembly.
Standards for candidates
I think a lot of the fears that hold up progress in the sphere of political co-operation between the races would be allayed if there is some assurance of the quality of the leadership that would be permitted to seek election to the organs of government. It might be more fruitful to explore the question of raising the standard of prospective candidates for Parliament than to hope for any speedy improvement of the general electorate to the educational and economic standard envisaged in the proposals made in the draft interim report.
I would, therefore, support a qualified franchise as a temporary expedient to break up the present stalemate in our political relationship, and as a statesmanlike gesture to the realities of the political situation. In short, to get the ball rolling in the right direction, so to speak. But to be acceptable to non-White leadership the qualifications must not appear to be designed to exclude as many non-Whites as possible, and must offer the possibility of non-White voting strength, if necessary, to act as a brake on the exercise of political power by the Whites in their own interests as heretofore.
I would, therefore, make the following amendments to the franchise proposals of the draft interim report:
(i) Age: To remain at 21 years.
(ii) Sex: Both sexes to be eligible provided they satisfy the conditions.
(iii) Education: Only as a condition of enfranchisement. I think Standard VI is too high at this stage and is unrealistic, for the effective school-leaving standard for most non-Whites has been Standard IV. The big drop generally used to occur after Standard IV.
This still requires of the electorate six years of schooling under the South African educational system. The problem is not so much the enfranchisement qualifications of future generations as the generations subject to greater disabilities in the past. It should be noted that the educational standard set for the Indians by the United Party government in 1946 (Asiatic Land Tenure and Indian Representation Act) was Standard IV for the first elections. The Progressive Party must at least match this concession after the great developments of the past fourteen years.
(iv) Education and Income as an alternative condition of enfranchisement: The realism of proposing Standard II is completely negatived by raising the monthly income to not less than £30.
Thirty pounds may not appear to be much in relation to the level of European incomes but is unrealistic against the level of non-White incomes, which in Durban showed that 90 per cent were below £15 per month, and this was borne out by the difficulty of the municipality in securing sufficient number of tenants or purchasers for its new African township at Kwa Mashu who earned a family income of £15 or more. The 1951 Union census revealed that the median income of Indians in Natal was £119 per annum, and that 75 per cent of them earned £189 or less per annum. Wages have not gone up that high since 1951 to make £30 a month a reasonably average wage for the semi-skilled industrial worker and the clerical employee.
If this category is intended to give representation to the class of urbanised, semi-skilled industrial and commercial worker, then I think we should be more realistic and recommend fifteen pounds (£15), or £180 per annum.
Even this figure may be hotly contested as being too high in the light of the surveys quoted. The 1946 Asiatic Land Tenure and Indian Representation Act set £84 per annum as a minimum income qualification for Indians. I think that the level of wages of the non-Whites is an even greater indictment of White rule than its neglect of non-White education. I see no prospect of wages being doubled within the next five, or even ten, years to enable most non-Whites to earn £30 per month. Here again we are concerned not with future generations but with the present adult generation which is demanding a share in the government of the country.
(v) Property Qualification as an alternative condition of enfranchisement: Occupation of fixed property valued at £500. I presume ownership is not meant here. Should ownership be meant what I have to say will still apply. The figure is too high, especially for the urban African, The vast majority of houses in African townships for individual family occupation are constructed at a cost well under this figure, in the region of £250 to £350. These are occupied by persons who are part of the permanent urban population. There is little, if any, opportunity for the urban African to own fixed property at a value higher than the municipality-erected house. I recommend £250 instead of £500.
5. I support the principle of the “B” roll for the disqualified as it would still allow limited political participation.
by RE van der Ross
Observations on Report, since amended in Letter of 7th August 1960, appended.
1. I feel that, whilst the Commission has been given certain terms of reference, it is not strictly necessary that all discussions be confined within these terms. In fact, as in our first meeting, a great deal of rather general discussion may be necessary and even desirable in order that members should see the more clearly what the others have in mind. As I cannot be present at the second meeting, these observations are, therefore, given in this wider sense.
THE QUALIFIED FRANCHISE
2. As far as this means that there must be some qualifications for attaining the franchise, it is obviously acceptable. It is when we come to the actual qualifications that differences arise.
Age: Twenty-one years is acceptable. Not eighteen.
Sex: Both sexes, on equal terms. Whether the wife of any qualified male voter should also be automatically enfranchised, is questionable. There is no suggestion that the same should happen to the husband of any qualified female. Of course, in many cases such factors as the property qualification, where property is registered in the husband’s name, will automatically enfranchise the wife, who lives with him.
EDUCATION AND INCOME
3. Here one is up against very contentious issues. The general question which keeps presenting itself is: What will be the effect (in numbers of persons enfranchised) if the qualifications are thus and thus? And, more disturbing, the question is not merely: “How many persons?” but: “How many persons of each racial group.” That this is so is borne out by much of the correspondence which we have had.
4. Now, I want to say this very clearly, that I feel it to be a most dangerous matter to do anything which smacks of manoeuvring the franchise in any manner to influence the balance or proportional voting strength of racial groups in any way.
5. I have considered the available evidence, and cannot agree with the educational and property or income qualifications of the Draft, except perhaps the educational level of Standard II. It must be remembered that, under Bantu education it takes a child five years to attain this level, not four. This, or indeed any educational qualification, is subject to the immediate introduction of compulsory education.
6. On income and property qualifications, there should be a great deal of consideration of the specific cases of incomes. But here, as with education, the basic consideration should be that nothing should be enacted or adopted which will use the historic advantage of one or more groups over others in order to entrench the conditions which conferred that advantage. We have had bitter experience of the result of forming one parliament in the hope that it would itself broaden the basis of racial liberalism later.
7. Much has been said in discussion and on paper of the values and virtues of Western civilisation, and of the necessity of preserving it. Without inviting needless discussion on what we mean by Western civilisation, how “Western it is, etc.”, I wish to submit the point that if Western civilisation means for the majority poverty and legal oppression, as it has up to now, then it is not worth defending. Certainly, it is folly to try and enlist the aid of the oppressed in defending it.
8. Today, the cry of the people is for freedom, i.e. self-determination. People would rather have the misery of their own choosing and making, than that of another. And there is no clear case that, left to themselves, the result would be misery for anyone.
CHECKS AND BALANCES?
9. Yes, these are surely necessary. But the type of check as is suggested in the dual roll (A and B) idea, is not acceptable. Not only because it is novel, but for reasons mentioned in paragraph 4 above. It is a form of manoeuvre. Maybe it is not intended as such, but it would not be difficult to show how in practice it could become such.
10. I suggest that the best form of check resides in the society itself, not in constitutional provisions. If the people are satisfied in that they have reasonable income, that they have reasonable security, that they may attain the positions of which they are capable, and, most important, if they feel that they belong, in a country where human dignity is upheld, you have the best safeguards against minority oppression which there can be.
11. One must approach the matter also with a degree of faith, a measure of confidence and optimism, and a minimum of suspicion based on a troubled conscience. If the white people fear swamping, extermination and worse horrors, this can be understood. We can understand and explain nightmares, but that does not confer reality on the dream. I believe that such a degree of stability and responsible leadership has been attained among non-White leadership that these fears will be proved groundless.
12. This is not the Congo, or Ghana. We have the most settled, urbanised, westernised African population on the continent of Africa. But by this same token, this population will not long remain without self-determination when the less-developed countries have it. Nor will the Coloured, Malay or Indian people do so.
13. So, tentatively, I propose that there be the qualifications of age (21 years) and literacy (say Standard II). That is all.
14. The idea of communal representation at any level is unacceptable. The draft anticipates the reasons for this statement. Hence all the arithmetical computations, bad in their own right for reasons also given in the draft, fall away. I see no reason why a Senate composed more or less as before the enlargement, using the same electorate as the Assembly, and with special powers of delay or rejection where rights of groups are concerned, should not be an adequate safeguard of rights of groups, as well as of individuals.
15. This, of course, backed by a Bill of Rights, on the pattern of the United States of America.
RE van der Ross
Letter dated August 7, 1960 amending Previous Observations on Draft Interim Report
PROGRESSIVE PARTY FRANCHISE COMMISSION
Dear Mr Molteno,
Many thanks for the opportunity which I had of discussing with you the Draft Interim Report. I feel that I am now better able to assess the matters contained therein, and the motives behind them.
I am prepared now to amend the suggestions made in my previous letter in the following manner:
1. Education: The educational qualification to be Standard IV.
2. Very specific mention to be made of the Bill of Rights and of such matters as that the Bill will outlaw any possibility of spending public funds in such a manner that there is financial discrimination between members of different racial groups.
3. It is to be made clear that I favour adult suffrage, and that I only discuss the other alternatives and sign the report because the terms of reference exclude it. Also because, in the situation where adult suffrage is precluded, should circumstances indeed preclude it, the suggestions made in the draft should in the shortest possible time create such conditions that adult suffrage will, indeed, prevail.
4. I reject the “B” roll idea. The draft also rejects, but this is to make doubly sure.
5. Against all the difficulties which prevail, and without prejudice to my conviction that it is wrong to perpetuate ideas of group registration and race classification, I am prepared to accept the suggestion in respect of the Senate elections. This is a concession to the understandable fears of minorities. It is better than the complicated device suggested in the first place, and it is conceded on the understanding that as soon as such conditions exist which make possible the elimination of all reference to race, these devices should be discarded.
(Signed) RE van der Ross
PS – IMPORTANT
It is also to be remembered that, without any reserve, the suggestions embodied in the draft report are intended as matters to go before an eventual National Convention and are, in this sense, not final.
by Arthur Suzman QC
1. My inability to concur, in its entirety, with the Majority Interim Report flows, I believe, mainly from a fundamental difference in approach to the task of the Commission.
2. The present Commission is, in a sense, unique. It has been appointed, not by a political party in power which is in a position to implement its policy, but by a party which, for the present, enjoys but a slender representation in Parliament. The function of the Commission, as I conceive it, is to propound, not necessarily a theoretically perfect or ideal paper-Constitution, but a workable Constitution which has a reasonable prospect of acceptance by the existing electorate.
3. As one is seeking to persuade the existing electorate to share its powers and privileges to a greater degree with the present unenfranchised groups, any proposed constitutional reforms must, ex hypothesi, be acceptable to the majority of the existing electorate. To propose reforms which are not acceptable to the existing electorate will, at best, result in a stalemate and, at worst, in attempts by the unenfranchised groups to secure reforms by extra-constitutional means. At the same time, to ensure the co-operation and goodwill of the unenfranchised groups, the proposed reforms must be acceptable to a substantial number (not necessarily a majority) of the members of the unenfranchised groups – more particularly their leaders.
4. To attempt to push reforms too far or too fast will defeat our very purpose. To propose reforms which do not go far enough, or which are unrealistic, will merely arouse suspicion in the minds of the non-Whites as to our sincerity of purpose.
I am confident that, even at this late stage, reasonable concessions, though limited, would engender a feeling of hope and a spirit of co-operation among large numbers of the unenfranchised groups and would at least serve to dispel the existing feeling of utter frustration, provided that the proposed concessions are not regarded as the final word.
5. I believe that between the extremes of a complete denial of the franchise to the non-Whites, on the one hand, and universal franchise, on the other, a via media can be found. If not, the consequences are fraught with danger. When extremes, backed by a high potential of feeling, do not meet, a revolutionary situation is engendered. I consider that the task of our Commission is to find that via media, based on the principles laid down in our directive,
6. At the preliminary meeting of the Commission held at Cape Town in February 1960 the view-point which I am here advancing did not appear to find favour. Unfortunately, I was unable to attend the last meeting of the Commission, held at Cape Town in July 1960, as I was then overseas.
In response to a Memorandum which I submitted for the consideration of the last meeting of the Commission I have received a letter, dated 2nd August 1960, from the Chairman of the Commission, in which he writes as follows:
“The question of what constitutional proposals have ‘a reasonable prospect of acceptance by the existing electorate’ is surely one for the Party to decide, not the Commission. This criterion finds no place in our terms of reference. Perhaps it should have, but the a ‘Commission of Experts’ would not have been appointed. I think we should stick to our terms of reference and the Party Congress can later decide which of our recommendations the existing electorate (necessarily uninformed on most of what we are requested to investigate) would accept.
As to the acceptability of our recommendations to the non-White peoples, this again seems to me to be a matter for the Party. In any case I do not see how we can decide this.”
7. On my interpretation of our terms of reference, however, I cannot agree that the criterion of “acceptability” finds no place in our terms of reference.
The Resolution relating to the appointment of the present Commission contains the following directive:
“The Party further urges that the Commission have due regard for the necessity for obtaining the widest possible degree of national acceptance of the proposed reformed Constitution…”
8. I therefore consider that the question as to whether or not our proposals have a reasonable prospect of acceptance, both by the existing electorate and by the present unenfranchised groups, is a criterion which we cannot disregard. It would be idle, in my view, to suggest proposals which, on the one hand, have no reasonable prospect of acceptance by the existing electorate or which, on the other hand, would be entirely unacceptable to the vast majority of the non-White groups.
9. Accepting the basic principle that in relation to the franchise there should be no discrimination solely on grounds of race, creed or colour, I put forward the following tentative proposals – subject to the condition that no person on an existing roll should thereby become disenfranchised.
(A) HOUSE OF ASSEMBLY
10. The House of Assembly, I would suggest, should consist of approximately 150 members – 135 to be elected by voters on an “A” roll and 15 (i.e. one-tenth) to be elected by voters on a “B” roll. The number of members to be elected by South-West Africa to be proportionate to the number of its voters.
(a) The “A” Roll
11. Qualifications for the “A” Roll should be –
(i) Age: 21 years.
(ii) Union citizenship.
(iii) (a) Standard VIII; or
(b) Standard V plus an annual income of £360 for not less than one year, or ownership or occupation of fixed property having a rateable value of not less than £500. (A wife to be deemed to have the same income as her husband and/or to own or occupy the same fixed property.)
12. I agree that the income and property qualifications should be reviewed at five-yearly
intervals, as suggested in the Majority Report.
(b) The “B” Roll
13. Paragraph 2 of our terms of reference calls for special provision for the representation of persons not qualified for registration on the common roll.
To meet this requirement, I suggest that persons not qualified for registration on the “A” Roll should elect not more than one-tenth of the total number of members of the House of Assembly – the number to be progressively reduced as and when the number of members on the “B” roll falls below one-tenth of the number of members on the “A” roll.
14. Qualifications for the “B” Roll should be –
(i) Age: 21 years.
(ii) Union citizenship.
(iii) Literacy in one or more of the official languages. (The possession of a Standard III certificate to be deemed a compliance with the literacy test.)
15. Qualification for membership of the House of Assembly to be registration as a voter on the “A” Roll.
(B) THE SENATE
16. I consider that the Senate should be a relatively small body (of statesmen rather than politicians), elected by a relatively select electorate. I am not in agreement with the proposal, either in the Majority Report or in the other Minority Report, as to the composition and powers of the Senate.
17. On principle, I am opposed to racial group-representation (as suggested in the other Minority Report):
I consider that the proposals in the Majority Report relating to the election of Senators implicitly give undue emphasis to conflicting racial group interests.
Both the Majority and the other Minority Report furthermore presuppose a continuance of the Population Register (or something similar) to determine the racial classification of voters.
18. Theoretically, the proposed system of election of Senators recommended in the Majority Report has much to commend it but I consider it too complex to be understood by the man in the street. In any event, I am not entirely happy with a system of election which will induce candidates to profess to be all things to all men. The idea of electing a candidate who will represent the highest common factor of opinion as between the various racial communities may be sound in theory but, I believe, unsound in practice.
19. I suggest that the Senate should consist of 45 Senators (10 from each province and 5 from South-West Africa) to be elected by two groups of electors, which, for convenience, I call the “primary” and the “secondary” Senatorial electoral rolls respectively.
(a) The Primary Senatorial Electoral Roll
20. In each province 6 Senators (24 in all) to be elected by persons on an electoral roll possessing the following qualifications:
(i) Age: 25 years.
(ii) Union citizenship.
(iii) (a) Matriculation certificate (or its equivalent); or
(b) Standard VIII plus an annual income for one year of not less than £750. (Wives to be deemed to have the same incomes as their husbands.)
(b) The Secondary Senatorial Electoral Roll
21. In each province 4 Senators (i.e. 16 in all) to be elected by persons on the “A” Roll for the House of Assembly.
22. South-West Africa to elect 5 Senators in all – 3 by persons on the primary election roll and 2 by persons on the secondary roll.
23. If and when “Bantustans” come into existence, they should perhaps be regarded as separate provinces electing their own Senators, the number of Senators to be determined according to their populations.
24. Qualification for election as a Senator should be registration as a voter on the primary senatorial electoral roll.
25. The Senate should not have an absolute power of veto, since I consider that, in principle, it is undesirable to invest a Second Chamber, more particularly a relatively small one, with a power of veto. The primary function of the Senate should be one of review with power to delay all legislative measures (save money bills) for say a maximum period of eighteen months.
26. I agree that the present system of loading and unloading should be modified so that all constituencies should consist of an equal number of voters, subject only to a latitude of 5 per cent.
(D) PROPORTIONAL REPRESENTATION
27. Although there is a good deal to be said for the introduction of some system of proportional representation, I consider that its introduction at this juncture would unnecessarily complicate the issues. The consideration of the introduction of any form of proportional representation should be deferred until after the main objective has been achieved, namely, that the present unenfranchised groups have a voice in Parliament.
28. I consider that the franchise reforms (including the reform of the Senate) should be initiated first and that it would be a mistake to endeavour to introduce all the suggested constitutional reforms at one fell swoop. The other constitutional changes contemplated by our terms of reference (apart from the suggested Bill of Rights) ought to follow as a consequence of the franchise reforms and should not be regarded as necessary concomitants.
29. The suggested franchise reforms should make the legislative bodies far more representative of the whole population and it is believed that this of itself should bring in its train, not necessarily a complete or immediate repeal of all the existing discriminatory legislation against the unenfranchised groups, but a substantial and increasing amelioration of the major hardships and injustices resulting therefrom,
30. In conclusion, I must emphasize that I do not regard any of the proposals which I have here advanced or any of the criteria which I have suggested as sacrosanct or inflexible. We are propounding a policy, not drafting a statute.
Indeed, future events may well overtake us and most, if not all, of the recommendations of our Commission may well become outmoded. One thing, however, is certain, the longer reforms are delayed the more rapidly will tensions develop and the more radical the inevitable changes.
A start must be made.
(Signed) Arthur Suzman
10th August 1960
Bill of Rights
Second Interim Report of the Progressive Party Commission on Constitution and Franchise
1. We have already presented an Interim Report on our second and third terms of reference, namely, those relating to qualifications for the franchise and the composition and functions of the House of Assembly and the Senate. Our recommendations in regard to the composition and powers of the Senate were framed with a view to safeguarding each of our four main racial communities, namely, the Europeans, Africans, Coloured persons and Asians, as groups, against possible domination by any other community or combination of communities, which, at any given time, may happen to command a majority of the electorate. The general nature of such proposed safeguard is to prevent such a majority from forcing upon any minority legislation to which members of the latter overwhelmingly object.
As explained in that report, however, this safeguard is necessarily limited in its operation and was so intended to be. For it presupposes that the legislation to which it has reference is within the lawful competence of Parliament. But a further and supplementary type of safeguard is also contemplated by our terms of reference, and that is to remove from the lawful competence of Parliament altogether legislation of a kind to which minority communities are bound to object.
Such legislation is firstly, that which discriminates adversely against members of minority communities, and, secondly, that which deprives them of rights and liberties that they regard as fundamental, even though it similarly deprives members of the majority also. In regard to legislation of the first type, the proposition is obvious – all people object to adverse discrimination against themselves. In regard, however, to legislation of the second type, it is suggested that experience indicates that political majorities in a plural society do not necessarily object to restrictions on their liberty so long as they can control the government and hence prevent repressive laws being used against themselves.
Thus, in South Africa the members and supporters of the Nationalist Party do not object to the severe restrictions on liberty imposed by the Suppression of Communism Act, the Public Safety Act, the Criminal Law Amendment Act, 1953, etc., being justifiably confident that these laws will be applied only to their political opponents, especially those who are non-White.
Our fifth term of reference enjoins us to consider and report upon a detailed proposal for the achievement of the following aim:
“To guarantee, by inclusion in the Constitution of an entrenched Bill of Rights, the fundamental human rights and liberties of the individual, such as freedom of religion, speech and association, equal protection of the laws, and also the equal status of the official languages.”
For reasons just explained, our recommendations on this term of reference are capable of providing safeguards for minority communities supplementary to those contained in the Interim Report already presented. It is for this reason that we have decided to deal with this matter in a second Interim Report, giving it priority over the balance of our terms of reference.
THE NATURE AND FUNCTIONS OF A CONSTITUTIONAL BILL OF RIGHTS
2. As already indicated, a Bill of Rights, written into a constitution, operates as a limitation upon the power of the legislature. In other words, it is inconsistent with the idea of a “sovereign” legislature. For the individual rights and freedoms that it embodies may not be altered or disregarded by any organ of state, including the legislature itself, unless the constitution is amended in the manner it prescribes.
But the converse of this proposition is not necessarily true. It is perfectly possible for a state the constitution of which includes no Bill of Rights nevertheless to have no sovereign legislature. This is the position of federal states. They have no sovereign legislature, since law-making power is divided between the central federal legislature and the several legislatures of the constituent states or provinces, and neither may encroach upon the subjects assigned by the constitution to the other.
Unitary or federal
The question whether the Progressive Party should aim at reform of the South African constitution on these lines falls within our fourth term of reference and is therefore not dealt with in this Interim Report. But we mention this matter here in order to make it clear that a constitutional limitation of legislative power through the medium of an entrenched Bill of Rights is quite independent of whether the state is unitary or federal in its organic structure. If it is unitary, the Bill of Rights will limit the powers of the national legislature. If it is federal, it will limit the powers both of the federal legislature and those of the legislatures of the constituent states or provinces.
We might emphasize also that the sovereignty or otherwise of the legislature has nothing to do with the sovereign independence of the state. As the USA illustrates, a sovereign independent state may have no sovereign legislature.
No man above the law
3. The next general point we feel constrained to make is that the idea underlying an entrenched bill of rights, that there should be no man or body of men in the state above the law or with power to alter the law at will, is a very ancient one and has no necessary relation to the problems of a plural society. The idea was familiar to the ancient Greeks, who worked out a theory of “natural law”, conceived of as a restraint upon the powers even of a democratic majority of the citizens. The same idea was deeply embedded in the convictions, and, to some extent at least, in the institutions, of mediaeval Europe. Thus the great jurist Bracton describes the mediaeval monarch as being “below God and the law”. And what was Magna Carta itself but in essence – an act of submission by the king to “the law of the land”? Claims to royal absolutism continued to be advanced, however, and these were finally dealt with in Britain in the seventeenth century and in France in the eighteenth.
In Britain the issue was ultimately resolved by the successful assertion by Parliament of the sovereign powers claimed by the Crown. But it is noteworthy that Sir Edward Coke, the greatest common lawyer of his day and a redoubtable opponent of royal absolutist pretensions, did not acknowledge Parliamentary absolutism either, as witness his famous dictum in Dr Bonhem’s case (1610) that “the common law will control Acts of Parliament, and sometimes adjudge them utterly void” as “against common right and reason”. However, by the eighteenth century at latest, the principle of Parliamentary sovereignty was universally recognised in Britain.
Very different, however, is the story of those Britons who, in the meantime, had crossed the Atlantic and established colonies along the eastern seaboard of North America. The tyranny they conceived themselves to be facing in the eighteenth century was not merely a royal, but also a Parliamentary, tyranny, emanating from Westminster. This experience led them to turn critical eyes on the sovereign powers of their own state legislatures which succeeded to the functions of the Imperial Parliament after the colonists had successfully vindicated their independence. For example, as early as 1777, Benjamin Rush attacked the Constitution of Pennsylvania in these terms:
“The supreme, absolute, and uncontrolled power of the State is… in the hands of one body of men… Absolute power should never be trusted to man… . I should be afraid to commit my property, liberty and life to a body of angels… .”
Similarly Jefferson characterised the sovereign powers of the Assembly of Virginia as “precisely the definition of despotic government”. Nor did it console him that the members were democratically elected since, to him, “one hundred and seventy-three despots” were “as oppressive as one”.
When, therefore, the various states united, not only did each surrender part of its sovereignty to the federal Congress and government, but the federal constitution contained provisions prohibiting both Congress and the state legislatures from legislating in derogation of certain individual rights. Furthermore, soon after the constitution was adopted so was the “Bill of Rights”, in the form of the first ten Amendments to the Constitution, guaranteeing to the individual against invasion by any federal or state authority a number of important rights and freedoms. The Bill of Rights has since been materially extended by other important Amendments, particularly those adopted on the morrow of the Civil War.
5. The guarantees of the rights and freedoms comprised in the Bill of Rights were rendered effective by two constitutional safeguards, the one explicit and the other implicit.
The explicit safeguard was the provision that the Constitution could only be amended by a procedure necessitating well-nigh general consent – a two-thirds majority of both Houses of Congress AND the assent of at least three-quarters of the states. Special and difficult procedure for constitutional amendment is of the essence of any rigid constitution.
The implicit safeguard was the power vested in the Courts of judicial review of Congressional and state legislation. This means that the Courts had the power and duty, in discharge of their ordinary functions, to test the validity of legislation by the terms of the Constitution. If, on a true interpretation of the latter and any Congressional or state act the validity of which is impugned in the case before it, the Court comes to the conclusion that the act conflicts with the Constitution, it is its duty to declare it ultra vires and to ignore it. To a South African or English lawyer there is nothing novel about this power. Both here and in England it is exercised as a matter of course by the Courts in regard to the ordinances, regulations or by-laws of non-sovereign law-making bodies, such as provincial, county or municipal councils. Only in regard to a sovereign legislature is such a power absent, since there are, by definition, no limits to its legislative powers. But, in the
USA, no legislature is sovereign.
Power of Courts
The powers of Congress and the state legislatures are limited by the Constitution. At an early stage in the history of the United States the Courts held they had power to pronounce on the validity of the acts of the state legislatures, and in 1803, in the great case of Marvury v. Madison, the Supreme Court held that it possessed the same power in regard to an act of Congress.
It is sometimes objected by the uninitiated – and even, occasionally, by those who should know better – that the power of judicial review involves “dragging the Courts into politics”. This objection entirely lacks substance, if by “dragging into politics” is meant that the Courts have power to base their discoveries on the desirability or otherwise of legislative acts. But the American Courts have no power at all to pronounce on this. They are, in this as in other matters, solely concerned with the law. As it was put by the Supreme Court in United States v. Butler (1936):
“It is sometimes said that the Court assumes a power to overrule or control the action of the people’s representatives. This is a misconception… When an act of Congress is appropriately challenged in the Courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty – to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former. All the Court does, or can do, is to announce its considered judgment on the question. The only power it has, if such it may be called, is the power of judgment. The Court neither approves nor condemns any legislative policy.”
It may be added that it has been repeatedly held by our own Appeal Court, here in South Africa, that “Courts of Law are not concerned with the question whether an Act of Parliament is reasonable or unreasonable, politic or impolitic”. That the same view is taken by the Australian Courts is clear from the remarks of Sir Owen Dixon when he took his seat as Chief Justice. He said:
“The Court’s sole function is to interpret a constitutional description of power and say whether a given measure falls on one side of a line consequently drawn, or on the other, and that it has nothing to do with the merits or demerits of the measure. Such a function has led us all, I think, to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties… It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.”
6. The United States precedent of entrenching constitutional guarantees for individual rights and freedoms in its Bill of Rights has been widely followed in modern democracies. Thus, according to Peaslee, Constitutions of Nations (1956 edition):
“Of the total of eighty-nine nations, eighty, or approximately ninety per cent, have ‘written constitutions’ … There are few written constitutions, whether the form of government be republican or monarchical, that do not enumerate various rights of the people which the constitution purports to guarantee to them.”
Some states have not adopted the device of judicial review as a means of enforcement of constitutional guarantess. The modern tendency, however, is to do so, as witness the post-war constitutions of Western Germany and Italy.
Entrenchment is modern trend
Up to the war the tendency in the British Commonwealth was against the entrenchment in constitutions of bills of rights, although, in federations, such as Australia and Canada, the Courts exercised the power of judicial review in order to confine the national and local legislatures to their allotted spheres of legislative competence. Even before the war, however, Eire adopted a rigid constitution which included a number of constitutional guarantees for individual rights and freedoms. Since the war the tendency of the new independent members of the Commonwealth has been to do the same. The outstanding example is the Indian Union. Nigeria is another. Burma (no longer a Commonwealth member) has done likewise. The recent constitutional conference on Kenya has foreshadowed the eventual adoption of a bill of rights on the Nigerian model. Ghana has not done so – with results which, to the outsider at least, appear disconcerting.
CONTENT OF A BILL OF RIGHTS
7. The general content of a bill of rights consists of guarantees to the individual of those rights and freedoms that may be said to be basic, in the sense of safeguarding personal liberty, impartial justice, equality of opportunity and the right of the individual to use his faculties and express his personality in all creative and useful ways. The particular rights and liberties guaranteed vary somewhat from country to country according to the local circumstances and historical experience of each. But, broadly speaking, there are certain rights and liberties that are very generally guaranteed. Thus, according to Peaslee (op. cit.):
“About 88 per cent of the national constitutions contain clauses respecting individual liberty and fair legal process; 83 per cent respecting freedom of speech and the press; 82 per cent respecting property rights; 80 per cent respecting the right of assembly and association; 80 per cent respecting rights of conscience and religion; 79 per cent respecting secrecy of correspondence and inviolability of domicile; 78 per cent respecting education; 73 per cent respecting equality (in law)…”
8. Before dealing with this aspect of the matter further, we should refer to the fact that in 1948 the United Nations General Assembly issued. its Declaration of Human Rights. This document includes all the various rights and liberties normally included in the bill of rights of a democratic state. But it also includes others more of the nature of desirable social objectives than of individual rights capable of definition in a legal instrument, such as a state constitution, and enforcement by a Court in a particular case. In practice, therefore, the full contents of the Declaration is not reproduced in the constitutions of democratic states.
9. We have consulted the terms of many constitutions, but, for the purposes of this part of our report, have analysed in detail the bills of rights entrenched in the constitutions of the USA, India, Switzerland, Western Germany, Italy and Eire. This seems to us a fair cross section for our purposes. The first three countries are states with plural societies. The first is the classic case upon which many others have been modelled. The constitutions of the second, fourth and fifth are of post-war and the others of pre-war origin. The second and last are countries in which, like ours, democratic institutions grew up under British influence. The first four are federal states and the last two unitary. All six have rigid constitutions, and, save in the case of Swiss federal, as opposed to cantonal, legislation, resort to judicial review for the purpose of enforcement of the entrenched rights. In addition we have studied the bill of rights of Nigeria, as agreed to at the Constitutional Conference held in September and October 1958, and which, as already mentioned, has since been agreed to in regard to the future constitution of Kenya at the recent Constitutional Conference concerning that territory.
Rights and liberties
10. Here then are the various rights and liberties which are entrenched in half or more of the constitutions of the first six states we have mentioned in the preceding paragraph:
(1) Equality and non-discrimination in law (all six).
(2) Liberty of the person save under competent judicial authority and fair Court process (all six).
(3) Freedom of speech and press (all six).
(4) Freedom of assembly (all except Switzerland).
(5) Freedom of association (all six).
(6) Freedom of religion (all six).
(7) Privacy and inviolability of home (all except Switzerland and India).
(8) Right of petition (all except India and Eire).
(9) Privacy of correspondence (USA, West Germany and Italy).
(10) Prohibition of slavery and forced labour (USA, India and West Germany.
(11) Prohibition of ex post facto laws (all except Eire and Switzerland).
(12) Freedom to acquire and dispose of property (all except Switzerland).
(13) Freedom of movement (all except Switzerland and Eire).
(14) Freedom of residence (all except West Germany and Eire).
(15) Freedom of occupation (USA, India and West Germany).
(16) Equal opportunity to enter the public service (USA, India and Italy).
(17) Fair compensation on expropriation of property for public purposes (all except Eire and Switzerland).
(18) Right to free parental choice of type of education of their children (all except USA).
The Nigerian Bill of Rights includes guarantees for all the above save (8), (12), (15), (16), (17), and (18).
In the case of the USA the rights of association, movement, residence, property and occupation are not specifically entrenched by name but have been held to be comprised in the right to “liberty” guaranteed by the Fifth and Fourteenth Amendments.
LIMITATIONS ON ENTRENCHED RIGHTS AND LIBERTIES
11. In a civil society liberty can, of course, never be absolute. Indeed individual rights and liberties must necessarily be limited by the corresponding rights and liberties of others and by such restrictions as are necessary in the interests of law and order, public health and morals, etc. Questions as to the limitations to be imposed on certain of the above rights and freedoms have arisen and have been dealt with as follows:
(1) Equality and discrimination in law:
The only limitation required here is in truth a matter of clarification, emphasizing that the protection only relates to adverse discrimination. Thus the Indian constitution includes the express qualification that “nothing… shall prevent the State from making any specific provision for the advancement of any socially and educationally backward classes of citizens.” In the United States it has been held that although the provision of separate services or amenities out of public funds for separate classes amounts to denial of “equal protection of the laws” if on an unequal basis, separation coupled with genuine equality does not offend against this constitutional guarantee. The comparatively recent school integration cases are not really inconsistent with this latter principle, since the Court held that, in the circumstances prevailing in the United States, separate schools for Negroes necessarily involved adverse discrimination against them in the educational field.
(3) Freedom of speech:
[illegible] constitutions leave the limitations upon this right to necessary [illegible]-on expounded by judicial interpretation. Others lay down the [illegible]-le criteria according to which legislative limitations may be imposed. [illegible] Indian constitution authorises “reasonable restrictions… in the [illegible] of the security of the state, friendly relations with foreign States, [illegible] order, decency or morality, or in relation to contempt of court, [illegible]-ation or incitement to an office.” The constitution of Eire simply [illegible] down the limitation of “public order and morality”. The Nigerian Conference recommended as permissible “such… restrictions… as are prescribed by law and are reasonably justifiable in a democratic society the interests of national security, territorial integrity and public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. The important point is, however, that it is for the Courts to decide whether a statute restricting this or other freedoms conforms to the permissible conditions for so doing prescribed in the constitution.
(4), (5), (6), (7), and (9). Freedoms of assembly, association and religion, and privacy of home and correspondence:
Similar limitations suitably adapted are applied to these.
(12), (13) and (14). Rights of property, movement and residence:
The constitution of India allows reasonable restrictions in the public interest, and such, in more detailed form, was the recommendation of the Nigeria Conference. The Italian constitution permits “limits prescribed by law for reasons of public health and security.”
A BILL OF RIGHTS FOR SOUTH AFRICA
The eighteen classes of basic rights and freedoms listed above as being commonly guaranteed in the constitutions of modern democratic states are not only not guaranteed by the existing Union constitution, but, in most instances, are flagrantly denied by laws presently on the statute book. In substantiation of this statement we now deal with each class from this aspect.
(1) Equality and non-discrimination in law:
To such an extent is our statute book riddled with provisions authorising adverse discrimination on racial grounds that detailed illustrations are superfluous.
(2) Liberty of the person save under competent judicial authority and fair Court process:
Various Union statutes authorise the detention and banishment of individuals by executive decision without trial or judicial warrant. The Riotous Assemblies, Native Administration, Suppression of Communism, Public Safety, Urban Areas, Prohibition of Interdicts, Criminal Law Amendment and Unlawful Organisations Acts are examples.
(3) Freedom of speech and press:
The Riotous Assemblies, Native Administration, Suppression of Communism, Public Safety and Unlawful Organisations Acts are all illustrative of laws making deep inroads into these rights. In addition, the Customs Act authorises censorship over imported literature and it is so used. Although not yet law, a rigorous Censorship Bill has been laid before Parliament.
(4) Freedom of Assembly:
The following statutes authorise arbitrary bannings of meetings and gatherings by executive authority: Riotous Assemblies, Native Administration, Suppression of Communism, Urban Areas, Public Safety and Unlawful Organisations Acts.
(5) Freedom of association:
The Suppression of Communism, Public Safety and Unlawful Organisations Acts all authorise arbitrary executive action for suppression of various kinds of organisations. In addition, the first and last of these Acts expressly suppress certain specified political organisations.
(6) Freedom of religion:
Although there is no statute expressly authorising the suppression of any particular religious doctrine, the wide powers to infringe freedom of person and to deny such freedoms as those of speech, assembly, association, etc., lend themselves readily to use for the purposes of religious persecution.
(7) Privacy and inviolability of home:
Such statutes as the Urban Areas, Liquor, Group Areas and Criminal Procedure Amendment Acts, and the various pass regulations made under various statutes, authorise the arbitrary invasion of domestic privacy without warrant at any time of the day or night.
(8) Right of petition:
There is no express prohibition on the address of representations to the authorities, but, on the other hand, these are no guarantees against victimisation of the petitioner.
(9) Privacy of correspondence:
The violation of this right is authorised by the Criminal Law Amendment Act of 1953.
(10) Prohibition of slavery and forced labour:
Slavery and forced labour are not expressly authorised but the cumulative effect of the restrictions on freedom of movement, residence and property (dealt with below) is to reduce hundreds of thousands of Africans to a condition of dependence on the employing classes which, in effect, forces them to labour on such terms as are offered to them. In addition the whole-[illegible]-easing of convict labour to private employers, contrary to the terms of [illegible]-evant international conventions, is authorised by the prisons legislation [illegible] widely and increasingly practised.
(11) Prohibition of ex post facto laws:
The Public Safety Act permits retrospectity of its restrictive regulations to [illegible]-nited extent.
(12) Freedom to acquire and dispose of property:
The entire African population is virtually deprived of property rights and reduced by law to the status of a landless proletariat by the Natives Land and Urban Areas Acts. The Group Areas Act imposes severe restrictions on the property rights of all races which, in practice, operate to the extreme disadvantage of the non-White communities.
(13) Freedom of movement:
The pass and influx control regulations made under the Urban Areas, Native Administration and Native Labour Regulation Acts impose a rigid framework of controls upon the movements of Africans. In addition, inter-provincial movement of Asians is restricted by the Immigration Act and executive action authorised thereby. Furthermore, movement to and from the Union is subject to official permission for all classes of South African citizens under the Departure from the Union Regulation Act.
(14) Freedom of residence:
The same statutes as restrict property rights and movement (dealt with under (12) and (13) above) place severe restrictions on residential rights, particularly for the Africans. Among the latter, the effect of these laws is that there are literally millions who have no legal right to reside anywhere in their native land and are only permitted to do so by official permission or by leave and licence of a private land owner.
(15) Freedom of occupation:
The Mines and Works Act and the job reservation provisions of the Industrial Conciliation Act, together with the regulations made under these statutes, arbitrarily deprive non-White workers from performing various types of work, particularly of a skilled nature. In addition the restrictions on property rights already mentioned and the restrictions under the Urban Areas and Group Areas Acts on the right to occupy fixed property have the effect of limiting severely the right of non-White persons to work for White employers, save with official permission, and also of compulsorily consigning the vast majority of the former to the status of wage earners.
(16) Equal opportunity to enter the public service:
Although the Public Service Act does not contain an express colour bar, the powers of recruitment and promotion that it confers on the Government and the Public Service Commission are used so as to confine employment in the public service above the level of unskilled work to White persons, save with negligible exceptions.
(17) Fair compensation for expropriation of property:
Although compensation is usually payable on expropriation for public purposes, the effect of the laws restricting the property rights of non-White persons – particularly Africans – are such that, on expropriation, the victim is often debarred from lawfully purchasing alternative property elsewhere.
(18) Right to free parental choice of the type of education of their children:
Under the Bantu Education Act, African parents have no choice at all as to the type of education their children are to receive. European parents are, in some provinces, denied choice as to the medium of education of their children in public schools. A threat of state-imposed uniformity hangs over all education by the introduction into Parliament of the Education Advisory Council Bill.
Radical revision of law needed
13. It is evident from this necessarily brief and cursory survey, that the entrenchment in the Union constitution of the basic rights and liberties that enjoy constitutional protection in democratic countries generally would involve radical revision of existing South African statute law. However, the reason for the denial of fundamental rights and liberties in this country is, undoubtedly, the system of colour discrimination. Even in the case of laws which do not expressly discriminate on this basis – e.g. the Suppression of Communism Act – the motive thereof is repression of the non-White masses of our people.
Since the Progressive Party is committed to a policy of non-discrimination on racial lines, the entrenchment of basic rights and liberties, irrespective of race, and the express entrenchment of the principle of equal protection of the laws is presumably in line with its policy, whatever the effect of such a constitutional reform upon the existing body of legislation.
Indeed, in the circumstances of South Africa there is a special need to limit the powers of the legislature, and the state organs generally, by prohibiting adverse discrimination against any group or class of the population, or denial to individuals, or any group or class thereof, of their fundamental rights or freedoms. For, as South African experience has amply shown, there is a special danger of such adverse discrimination and such denial being practised in a plural society. Such, at all events, has been the lesson of White domination since Union. Such, possibly, would be the result of ultimate non-White dominance on a common electoral roll.
Whatever the franchise arrangements, therefore, a sovereign Parliament on the British model is particularly inappropriate in South African conditions if a free society is the aim of policy. An entrenched bill of rights, therefore is of categorical importance.
Since, moreover, such bill of rights would counter all attempts to impose adverse racial discrimination, it would, by protecting the rights of the individual, irrespective of race, operate as a safeguard for minority groups against majority domination, supplementary to the safeguard involved in the composition and functions of the Senate recommended in our first Interim Report.
14. We think, therefore, that all the classes of rights and liberties listed above should be embodied in the draft Bill of Rights which the Party aims to include in a reformed constitution. Below we recommend them for such inclusion, together with the more detailed and ancillary rights which appertain to some of them, and, in some cases, the necessary scope of their permissible limitations.
15. There are, however, certain additional rights and liberties which, in the circumstances of our country, require inclusion.
One of these is mentioned in the term of reference itself, namely, equality of language rights.
Another is the right to marry according to the choice of the individual, fettered only by the ordinary common law limitations. This right is entrenched in some modern constitutions and is expressly mentioned in the Declaration of Human Rights. In South Africa the presence on the statute book of the Mixed Marriages Act indicates the necessity for its inclusion.
University autonomy and academic freedom seem to be taken for granted in most democratic countries, and are not, therefore, afforded any special constitutional protection. The presence on the Union statute book of the Extension of University Education Act indicates the necessity for such protection here.
There are also certain reasons why the right to free primary education should be guaranteed in the constitution. Here again, in advanced democracies this right is taken for granted. But it is sometimes constitutionally guaranteed – for instance in Italy. In South Africa free primary education has long been provided for all racial communities. But in the case of the Europeans it is provided on a scale sufficient to embrace all children, whereas, in the case of the non-Europeans – particularly the Africans – it has only been available for a certain proportion of the children. Moreover the public expenditure per capita on the education of European children is vastly in excess of the corresponding expenditure on the education of non-European children. This latter abuse would, indeed, be outlawed by the guarantee of equal protection of the laws, irrespective of race.
But, in our view, something more is required, viz. a positive guarantee of primary education for every child, irrespective of race. This is so because for historical reasons, the bulk of Europeans are economically better circumstanced to pay for the private instruction of their own children than the bulk of the non-Europeans.
Moreover, in our first Interim Report we have recommended Standard VI as a qualification for the franchise. As a matter of elementary justice and democratic principle, therefore, free primary education sufficient to enable every child to attain this standard should be constitutionally guaranteed.
We therefore recommend below that such guarantee be included in the bill of rights as from a date to be fixed by legislation. This latter qualification is necessary, since the right can only be effectively guaranteed as from such date as the number of qualified teachers and the necessary physical equipment are in fact available.
CONTENTS OF THE BILL OF RIGHTS
16. In the light of the foregoing we come now to our specific recommendations as to the contents of the Bill of Rights to be adopted by the Party. We should make it clear that we do not regard it as our function to draft portion of a model Constitution but merely to indicate with reasonable precision the nature of the rights and freedoms that we recommend for
constitutional protection. They are the following:
(1) Every person shall be equal before the law and shall not be denied the equal protection of the laws, irrespective of race, colour, sex, home language, religion, opinions or other arbitrary criterion.
(a) It shall be permissible for the State, or other public authority, to provide out of public funds separate schools, housing, transport facilities, hospitals, places of detention or any other service, amenity or public institution whatsoever for the exclusive use or benefit of different classes of the community, provided that corresponding fair and equal facilities are at the same time provided or are available for the rest of the community.
(b) It shall be permissible for the state, or other public authority, to make specific provision, of whatsoever kind, for the advancement of any socially or educationally backward class of the community.
(2) Everyone has the right to personal liberty and shall not be deprived thereof save in the following cases and in accordance with procedure prescribed by law:
(a) Arrest in the act of committing an offence or as authorised by a valid warrant issued by a judicial officer on sworn information disclosing reasonable suspicion of commission of an offence.
(b) Lawful detention under the law relating to minors or persons of unsound mind.
(c) Lawful detention by reason of conviction by a competent court.
(d) Lawful arrest and detention for the purpose of deportation or extradition under the law relating to immigration, aliens or extradition.
Provided that any person arrested under paragraph (a) shall be informed promptly of the reasons for his arrest and shall either be formally charged with an offence within forty-eight hours before a judicial officer or else be released.
(3) Everyone has the right to freedom of speech and expression through any medium, subject to the common law and subject to such reasonable restrictions as are prescribed by law and are reasonably justifiable in a democratic society in the interests of State security or public order.
(4) Everyone has the right to peaceful assembly with others subject to the same limitations.
(5) Everyone has the right to freedom of association with others subject to the same limitations.
(6) Everyone has the right to freedom of thought, conscience and religion and to propagate his religion or belief, subject to the same limitations. No test of religion or conscience shall be imposed as a condition of holding any public appointment or appointment by any institution (other than a religious institution) aided out of public funds.
(7) Everyone has the right to privacy of his home and inviolability of his personal correspondence, papers and other effects. Searches of private premises and seizures of personal effects shall only be permitted under authority of a warrant issued by a judicial officer on sworn information disclosing reasonable suspicion of the presence on such premises of a person who has committed an offence or of property that might provide evidence of an offence.
(8) Everyone has the right to petition the legislature or the public authorities for redress of grievances and shall suffer no penalty or other disadvantage by reason thereof.
(9) (a) No one shall be held in slavery or servitude.
(b) No one shall be required to perform forced or compulsory labour save –
(i) in consequence of a sentence of a competent court, or
(ii) service of a military character to the extent necessary for the defence of the state.
(10) (a) No person shall be held guilty of any offence on account of any act or omission that did not constitute an offence at the time of its commission.
(b) No person who has been tried, and acquitted or convicted, of any offence shall again be tried for that offence.
(c) No person charged with any offence shall be compellable to testify against himself nor shall his spouse be so compellable.
(d) Every person detained for any reason shall be entitled to legal advice of his own choosing and to interview his legal adviser under conditions of privacy.
(e) Every person charged with an offence shall be entitled to legal assistance of his own choosing.
(11) Every person shall have the right to acquire, hold, inherit or dispose of property:
(a) Private property may be expropriated for public purposes subject to payment of fair compensation.
(b) Servitudes originating in free agreement between private persons may be inserted in titles to fixed residential property restricting the ownership, occupation or user thereof to persons of a particular class, unless legislation otherwise provides, either prospectively or subject to fair compensation retrospectively.
(12) Every person shall have the right to move freely throughout the territory of the Union, to depart from the Union, and, subject to the laws relating to immigration and aliens, to return thereto:
(a) No South African citizen shall be declared a prohibited immigrant to, or an undesirable inhabitant of, the Union.
(b) Every South African citizen shall, prior to his departure from the Union, be entitled to a passport in ordinary and recognized form.
(13) Every person shall be entitled to reside and settle in any part of the territory of the Union: Provided that areas may be reserved for the residence and settlement of any socially, educationally or economically backward class of the community.
(14) Subject to such technical qualifications and ethical standards as may be prescribed, every person shall have the right to practise any profession or to carry on any lawful occupation, trade or business.
(15) There shall be equal opportunity for all citizens in matters relating to employment, promotion or appointment to any office under the State or any public authority, and no citizen shall in any manner be ineligible for or be discriminated against in respect of any such employment, promotion or appointment by reason only of race, colour, sex, home language, religion, opinions or other arbitrary criterion.
(16) (a) From and after a date to be fixed in each province by legislation, there shall be free and compulsory education for every child for at least eight years.
(b) Schools may be established by the appropriate public authorities for children of any specified class designated with reference to race, colour or sex:
From and after the date referred to in paragraph (a), if there is no school, situated within a reasonable distance of a child’s home, established for the class to which that child belongs, such child shall be admitted to any other school so situated, notwithstanding that he is not a member of the class for which such school was established.
(c) Any association or body shall have the right to establish educational institutions of their choice for scholars of any race, colour, religion or home language, and the State or any public authority, in granting aid to educational institutions, shall not discriminate against any educational institution on the ground that it is established for scholars of such race, colour, religion or home language.
(d) Provided that they comply with the law with reference to compulsory education, parents shall not be obliged to send their children to schools established by the public authorities nor to any particular type of school designated by such authorities.
(e) Universities and other institutions of higher learning and education shall have complete freedom as to the admission of students, the courses of instruction provided, the degrees or diplomas conferred and the staff employed, and, in granting aid to such universities or other institutions, the State or other public authorities shall not discriminate between them on any of these grounds.
(17) (a) Both the English and Afrikaans languages shall be official languages of the Union and shall be treated on a footing of equality, and possess and enjoy equal freedom, rights and privileges.
(b) Any additional language may be prescribed by legislation as an official language of the Union or of any province thereof, and any such language shall thereupon be treated on a footing of equality with English and Afrikaans throughout the Union or within such province, as the case may be, and with them shall enjoy therein equal freedom, rights and privileges.
(18) Every person has the right to marry any other person subject only to the impediments to marriage imposed by the common law.
17. It is to be noted that we have not included any specific provision for the enforcement of these rights by the Courts nor specifically enjoined that the Courts shall have the power to test the validity of statutes by the terms of the Bill of Rights. We of course intend the Courts to have such powers not only with reference to the Bill of Rights but with reference to the whole of the constitution. We propose, therefore, to deal with this matter under our first term of reference relating to a rigid constitution generally and our sixth relating to the judiciary and the rule of law.
Donald B Molteno (Chairman)
Edgar H Brookes
A van der Sandt Centlivres
(Subject to qualifications attached hereto)
ZJ de Beer
(Subject to qualifications attached hereto)
(Subject to qualifications attched hereto)
(Subject to qualifications attached hereto)
(Subject to qualifications attached hereto)
RE van der Ross
(Subject to qualifications attached hereto)
RESERVATIONS OF INDIVIDUAL MEMBERS
Dr Cooppan has the following reservations in regard to Paragraph 16:
(1) Sub-paragraph (1)(a): The power to provide separate services, amenities or institutions from public funds should be subjected to a general policy directive in favour of the promotion of national unity.
(2) Sub-paragraph (16)(e): University autonomy should be limited by prohibition of refusal of entry of students into a university or other institution of higher learning on the grounds of race.
Dr De Beer and Mr Oppenheimer have the following reservations in regard to Paragraph 16 (11) and (13):
In so far as these provisions might be construed as prohibiting compulsory racial zoning for residential purposes, they dissent therefrom.
Professor JS Marais and Adv Arthur Suzman QC
Whilst agreeing to the report in principle, they have certain reservations in regard to its details.
Dr Van der Ross has the following reservations in regard to Paragraph 16:
(1) Sub-paragraph (1)(a): He dissents from the explicit grant of power to provide out of public funds separate services, amenities or public institutions for the exclusive use or benefit of different classes of the community.
(2) Sub-paragraph (16)(b): He dissents from the explicit grant of power to public authorities to establish schools for children of specified races.
Further Volumes of the MOLTENO REPORT will be published covering the Commission’s remaining terms of reference.
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