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A Comparative Study of the South African Constitution
Published online by Cambridge University Press: 04 May 2017
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The self-governing colonies of the British Empire are not, it is true, states within the meaning of international law, for Great Britain has, among other things, the legal right to conclude with other nations treaties which affect her colonies. It is, moreover, too much to say that the self-governing colonies will become members of the family of nations. Still it is a fact that England has in recent years granted them more or less participation in the negotiation of treaties affecting their welfare; and in a recent treaty of general arbitration Great Britain expressly reserves “the right before concluding a special agreement in any matter affecting the interest of a self-governing Dominion of the British Empire, to obtain the concurrence therein of the Government of that Dominion.” Consequently these colonies possess a certain standing in international relations which can not be overlooked, and which justifies some comparative study of their fundamental laws. The object of this paper is, therefore, to give a general sketch of the constitution of South Africa, recently approved by the English Parliament, in the light of the earlier constitutions similarly granted to Canada and Australia.
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- Copyright © American Society of International Law 1910
References
1 Arbitration Convention between the United States and Great Britain, signed April 4, 1908, Art. II.
2 It is said that by the treaty of Vienna, 1815, England formally purchased the Cape from Holland for £6,000,000. Memorandum on the Federation of the South African Colonies, by Lord Selbourne, p. 15.
3 A. Wilmot, Manual South African History, pp. 126, 127.
4 The main points in this historical sketch are taken from Manual of South African History, by A. Wilmot, supplemented from various sources.
5 H. Doc. No. 357, 59th Cong. 2d sess., p. 519.
6 The foregoing sketch of constitutional history is based on Munro, Constitution of Canada; Quick and Garran, Constitution of Australia Commonwealth, and other sources.
7 Memorandum on the Federation of the South African Colonies, by Lord Selbourne, p. 17.
8 For the amendments suggested in the House of Commons, see Parliamentary Debates, 1909, Vol. 9.
9 The abbreviations S. A., Can., and Aust. followed by numbers, which occur throughout this paper, refer to sections of the South Africa Act, the British North America Act, and the Australia Constitution Act, respectively.
10 Thus other general statutes of the Imperial Parliament, such as the Colonial Boundaries Act 1895 (58 & 59 Vict., c. 34, etc.), the Colonial Courts of Admiralty Act of 1890 (53 & 54 Vict., c. 27), etc., are in force in the self-governing colonies along with their constitutions.
11 Merivale’s Lectures on Colonization, p. 666.
12 Clements, Can. Constitution, pp. 95, 96.
13 Todd, Pari. Govt, in Brit. Col., p. 123.
14 Compare U. S. Constitution, Art. 2, Sec. 1, subsec. 6.
15 Clements, Can. Constitution, p. 97.
16 Keg. v. Bank of N. S., 11 S. C. R. 1; Musgrove v. Chun Teong Toy, 14 Vic. L. R. 349; Clements, Const., Canada, p. 79 et seq.
17 Clements, Can. Constitution, p. 93.
18 partial list of the powers of the crown in relation to the colonies follows:
Canada: Authorize governor-general to appoint deputies (Can. 14) ; command naval and military forces (Can. 15) ; summon the first senators (Can. 25) ; direct the addition of members to the Senate (Can. 26, 27) ; disallow bills (Can. 56) ; admit other colonies to the Dominion on address of parliament (Can. 146).
Australia: Authorize governor-general to appoint deputies (Aust. 126) ; grant appeals to Privy Council (Aust. 74) ; disallow bills (Aust. 59).
South Africa: Grant appeals to Privy Council (S. A. 106) ; disallow bills (S. A. 65); command naval and military forces (S. A. 17); admit new provinces on request of parliament (S. A. 150) ; transfer territories to the Union on request of parliament (S. A. 151) ; authorize governor-general to appoint deputies (S. A. 11).
19 Quick and Garran, Const, of Aust. Com. 709.
20 The remaining powers of the governor-general are substantially as follows;
South Africa: Appoint the times for holding sessions of parliament, and dissolve and prorogue the same (S. A. 20) ; fill vacancies in the Senate (S. A. 29) ; convene joint sittings of parliament (S. A. 58, 63) ; take oaths of members of parliament (S. A. 51) ; sign the laws (S. A. 67) ; sign ordinances of Provincial Councils (S. A. 91) ; appoint deputies (S. A. 11).
Canada: Choose senators (Can. 24, 26, 27) ; appoint and remove speaker of Senate (Can. 34) ; fill vacancies in Senate (Can. 32) ; cause writs to be issued for election of House of Commons (Can. 42) ; appoint provincial judges (Can. 96) ; remove provincial judges on request of parliament (Can. 99) ; appoint public officers deemed necessary by governor-general in council (Can. 131); appoint deputies (Can. 14); take oaths of members of parliament (Can. 128).
Australia: Notify vacancies in Senate to governor of state (Aust. 21) ; dissolve parliament (Aust. 57); convene joint sittings of parliament (Aust. 57); appoint deputies (Aust. 126).
21 The remaining powers of the governor-general in council are in the main as follows:
South Africa: Nominate the senators (S. A. 24) ; appoint the districting commission (S. A. 38–41) ; proclaim the boundaries of electoral divisions (S. A. 42) ; appoint election day of members of House of Assembly (S. A. 37) ; approve remuneration of executive committeemen (S. A. 78) ; disapprove rules of proceedings of provincial councils (S. A. 75) ; determine salaries of members of provincial councils (S. A. 76) ; assent, etc., to ordinances of provincial councils (S. A. 90) ; appoint, remove, regulate and fix salary of Auditor of Accounts (S. A. 92) ; postpone filling vacancies in Supreme Court (S. A. 102) ; fill vacancies in Supreme Court due to absence, etc. (S. A. 97) ; approve rules of courts (S. A. 107, 108) ; undertake the government of native territories (S. A. 151); receive all revenues (S. A. 117); receive all public property (S. A. 122); receive all mines and minerals (S. A. 123); receive all posts, harbors and railways (S. A. 125); appoint financial commission (S. A. 118); reduce compensation to former capitals on approval of parliament (S. A. 133) ; appoint and remove Controller and Auditor-General (S. A. 132) ; cause Railway and Harbor Board to furnish services (S. A. 131) ; supervise, appoint and remove Railway and Harbor Board (S. A. 126) ; appoint and assign duties to attorneysgeneral for the provinces (S. A. 139); appoint Public Service Commission (S. A. 141, 142); control and administer native affairs (S. A. 147); frame regulations for elections (S. A. 134).
Canada: Appoint deputy lieutenant-governor (Can. 67) ; regulate, review and audit first charge on revenue fund (Can. 103) ; regulate payments of money to provinces (Can. 120) ; deliver public documents and records to Ontario or Quebec (Can. 143).
Australia: Cause writs to issue for elections to House of Representatives (Aust. 32) ; appoint members of Interstate Commission (Aust. 103).
22 Files of “South Africa,” Oct., 1908–Oct, 1909.
23 Quick and Garran, Const, of Aust. Com., 978, 979.
24 Clements, Can. Constitution, p. 141.
25 For the composition of the executive council in the other Canadian provinces, see Clements, Can. Constitution, p. 85.
26 Clements, Can. Constitution, p. 143; for organization, see p. 85.
27 Most of the remaining powers of the chief executive of a province or state are as follows:
South Africa: Fix place of elections for members of provincial councils (S. A. 71); fix times for sessions of provincial councils and prorogue same (S. A. 74) ; recommend appropriations (S. A. 89) ; promulgate ordinances of provincial councils (S. A. 91) ; cast vote in executive committees (S. A. 82).
Canada: Appoint executive councils (Can. 63) ; appoint legislative councils (Can. 72) ; fill vacancies in legislative councils (Can. 75) ; appoint speaker of legislative councils (Can. 77) ; dissolve legislative assembly (Can. 85) ; cause writs to be issued for election of members of legislative assembly (Can. 89) ; take oaths of members of legislative council and legislative assembly (Can. 128) ; summon the legislative assembly (Can. 82) ; constitute townships in parts of Quebec (Can. 144) ; appoint and prescribe duties of certain officers (Can. 134) ; see also Section 90.
Australia: Cause writs to be issued for elections of senators (Aust. 12).
28 Quick and Garran, Const, of Aust. Com., p. 385.
29 Todd, Parl . Govt, in Brit. Col., 2d Ed., pp. 155, 156.
30 Clements, Can. Constitution, p. 98.
31 Quick and Garran, Const, of Aust. Com., p. 392; Clements, Can. Constitution, p. 98.
32 Clements, Can. Constitution, p. 110.
33 Quick and Garran, Const, of Aust. Com., pp. 418, 519.
34 Clements, Can. Constitution, p. 116.
35 Dodd, Modern Constitutions, p. 189.
36 Clements, Can. Constitution, pp. 112, 113.
37 Clements, Can. Constitution, p. 112.
38 Clements, Can. Constitution, p. 112.
39 Quick and Garran, Const, of Aust. Com., p. 429.
40 This provision eliminates the native voters in the Cape from the calculation of the quota and thus reduces the number of representatives from that province. Though this in a way produces inequality of representation, it is believed in South Africa that equal representation will ultimately be achieved. In order to placate the Cape on this point proportional representation for the House of Assembly was omitted in favor of one member constituencies.
41 Quick and Garran, Const, of Aust. Com., pp. 454, 456.
42 Compare the reapportionment Act of Oct. 24, 1903. The American plan is to apportion not more than one representative to every 30,000 inhabitants, but each State shall have at least one representative (U. S. Const., Art. 1, sec. 2). The reapportionment is generally made by act of Congress following the decennial census. The act apportions the number of members to each State and provides that the State legislature divide the State into districts having about equal populations and returning one member each. See Act of Congress Jan. 16, 1901, 31 Stats. Large 733.
43 Compare the Reapportionment Act of Oct. 24, 1903.
44 For debate on whether these clauses cover natives who acquire the ballot in the future, see Parliamentary Debates, 1909, Vol. 9, column 1639.
45 Compare U. S. Const. Amendments 14 and 15.
46 Compare U. S. Const., Art. 1, Sec. 4.
47 Compare U. S. Const., Art. 1, Sec. 6, Subsec. 1, where salaries are left to be fixed by law.
48 As amended by “The Parliament of Canada Act 1875.”
49 For a list and discussion of the powers, privileges and immunities of the House of Commons, see Quick and Garran, Const, of- Aust. Com., p. 501 et seq.
50 For other powers which are common to both houses, compare S. A. 26 and 44, 31 and 50, 28 and 47, 27 and 46; Aust. 16, 17 and 35, 18 and 36, 20 and 38, 19 and 37, 22 and 39.
51 Clements, Can. Constitution, p. 148.
52 Clements, Can. Constitution, p. 147, citing Liquidator’s Case, 61 L. J. P. C. 75.
53 Note the absence of a similar provision for Nova Scotia and New Brunswick.
54 Clements, Can. Constitution, pp. 150–153.
55 Compare U. S. Const., Amendment 10.
56 Compare U. S. Const., Amendment 1.
57 A fairly complete list of the other parliamentary powers distributed throughout the constitutions follows:
South Africa: Regulate borrowing of money by provinces (S. A. 85) ; regulate taking of evidence as to enactment of special laws (S. A. 88) ; approve the remuneration of the Auditor of Accounts (S. A. 92) ; provide for settling election disputes (S. A. 98 (iv) ) ; request admission of new provinces (S. A. 149) ; request admission of territories (S. A. 150) ; make appropriations of money (S. A. 117, 125, 119) ; change regulations in regard to elections (S. A. 132) ; approve withdrawal of compensation to capitals of former colonies (S. A. 131); fix powers of Public Service Commission (S. A. 142) ; determine pensions otherwise unprovided for (S. A. 146) ; delegate the appointing power of the governorgeneral in council (S. A. 15) ; delegate the powers and functions of the governorgeneral in council (S. A. 16) ; increase membership of House of Assembly (S. A. 34) ; regulate payment of salaries to members of parliament (S. A. 56) ; fix salaries of administrators (S. A. 69); approve rules of court procedure (S. A. 107).
Canada: Alter powers and functions of governor-general (Can. 12) ; define privileges, immunities and powers of members of parliament (Can. 18) ; readjust the representation of the four provinces (Can. 51); increase number of members of House of Commons (Can. 52) ; alter qualifications of members and mode of their election for House of Commons (Can. 41) ; fix quorum of Senate (Can. 35) ; fix salary of lieutenant-governors (Can. 60) ; establish court of appeal and additional courts (Can. 101) ; request removal of judges of superior courts (Can. 99); fix salaries of provincial and admiralty judges (Can. 100); request admission of new colonies (Can. 146) ; establish new provinces (Can. 2, Act 1871); alter limits of provinces (Can. 3, Act 1871); legislate for any territory (Can. 4, Act 1871) ; alter customs and excise laws of each province (Can. 122) ; provide for audit of collection of revenue (Can. 103) ; alter salary of governor-general (Can. 105); appropriate for the public service (Can. 106); alter and repeal certain old provincial laws (Can. 129) ; provide for appointment of officers (Can. 131); perform obligations of treaties (Can. 132); provide for representation of territories (Can. 1, Act 1886) ; unify, with consent of the provinces, the laws of property, civil rights and procedure in certain provinces (Can. 94) ; legislate concerning agriculture and immigration for all of the provinces (Can. 95).
Australia: Legislate concerning detention by States of offenders against federal laws (Aust. 120) ; annual State inspection laws (Aust. 112) ; prescribe additional justices for the High Court (Aust. 71) ; request removal of justices of the High Court (Aust. 72) ; fix remuneration of justices of the High Court (Aust. 72) ; provide for actions against the Commonwealth or a State (Aust. 78) ; make exceptions to and regulations for jurisdiction of the High Court (Aust. 73) ; fix quorum of federal courts (Aust. 79) ; confer original jurisdiction on the High Court in certain matters (Aust. 76); limit appeals to the. Privy Council (Aust. 74) ; establish conditions of admission and representation of new States (Aust. 121) ; make laws for the government and representation of new territories (Aust. 122) ; alter the limits of a State with its consent (Aust. 123) ; fix compensation for State property acquired (Aust. 85) ; grant financial assistance to a State (Aust. 96) ; exclusive power to impose duties (Aust. 90) ; fix number, salary and offices of ministers (Aust. 65, 66) ; delegate the appointing power (Aust. 67) ; fix electoral divisions for senators (Aust. 7) ; fix number of senators to a State (Aust. 7) ; prescribe qualification of electors of senators (Aust. 8) ; prescribe uniform method of choosing senators (Aust. 9) ; legislate for elections of representatives (Aust. 10) ; regulate rotation of senators (Aust. 14) ; change method of determining representation in the House (Aust. 24) ; legislate for determining electoral divisions for the House (Aust. 29) ; prescribe qualifications of representatives (Aust. 34) ; legislate for elections of representatives (Aust. 31) ; prescribe qualifications of electors of representatives (Aust. 30) ; fix quorum in the House (Aust. 39) ; provide for determination of qualifications or elections of members of parliament (Aust. 47) ; fix penalty for unqualified person sitting in parliament (Aust. 46); fix salary of representatives and senators (Aust. 48) ; declare powers, privileges and immunities of parliament and its members (Aust. 49) ; make rules for conduct of its business and exercise of its powers and privileges and immunities (Aust. 50) ; legislate as to duties and balances of revenue paid to States (Aust. 93) ; provide for monthly payment of surplus revenues to States (Aust. 94) ; legislate with respect to navigation and shipping and State railways (Aust. 98) ; request removal and fix salary of Inter-State Commissioners (Aust. 103) ; fix powers of adjudication and administration of Inter-State Commission (Aust. 101); prohibit preference or discrimination as to railways (Aust. 102).
58 Quick and Garran, Const, of Aust. Com., p. 667, citing May’s Pari. Proc, 10th Ed. 542.
59 Quick and Garran, Const, of Aust. Cora., p. 690.
60 The provisions on the equality of the languages are said to be due to the eloquence of Mr. Steyn, former president of the Dutch Republic. The compromise seems to have been proposed in the convention by an English delegate. This and other evidences of conciliation in the convention are believed to have killed party spirit for some time. A Boer majority, however, may be expected, it is said, for the Boers are clanish and favor their own people. Tiles of “South Africa,” October, 1908–October, 1909.
61 Compare McCulloch v. Maryland, 4 Wheaton 316; Dobbins v. Commissioners of Erie Co., 16 Peters 435; Collector v. Day, 11 Wallace 113.
62 Compare U. S. Const., Amendment 10.
63 Compare U. S. Const., Art. 1, Sec. 10; Art. 4, Sees. 1, 2.
64 Most of the other powers of the provincial legislatures distributed throughout the constitutions are here brought together:
Canada: Alter powers and functions of lieutenant-governors (Can. 65) ; alter term of members of Quebec legislative council (Can. 72) ; Quebec legislative council to settle questions of qualification or vacancy (Can. 76) ; Quebec legislature may determine the quorum (Can. 78) ; legislatures of Quebec and Ontario may alter certain qualifications of members of the legislative assemblies (Can. 83) ; legislatures of Quebec and Ontario may alter mode of election and qualifications of voters for the legislative assemblies (Can. 84) ; exercise same powers as to money bills, recommendation of money votes, as parliament (Can. 90) ; legislate concerning agriculture of and immigration into the province (Can. 95) : appropriate money for the provinces (Can. 126) ; alter or repeal certain old laws (Can. 129).
Australia: Consent to formation of new States by union or separation (Aust. 1) ; fix method of choosing senators (Aust. 9); surrender any part of State to Commonwealth (Aust. I l l ) ; alter and repeal old laws (Aust. 108); consent to alter limits of State (Aust. 123).
South Africa: Alter or repeal old laws (S. A. 135).
65 Mr. Duncan, legal adviser of the Transvaal delegation to the national convention, “South Africa,” Mar. 20, 1909, p. 612.
66 “South Africa,” Mar. 13, 1909, p. 584.
67 Hodges’a Case, 53 L. J. P. C. 1; Liquidator’s Case, 61 L. J. P. C. 75; Clements, Can. Constitution, p. 137.
68 Clements, Can. Constitution, pp. 106, 107.
69 Munro, Const, of Can., p. 175.
70 Munro, Const, of Can., p. 229 et seq.
71 Reg. v. Justices of King’s County, 2 Pug. (N. Bruns.) 535; City of Fred ericton v. Reg., 3 S. C. R. 505; Quick and Garran, Const, of Aust. Com., pp. 542, 543.
72 Clark, Aust. Const. Law, p. 15.
73 18 Harvard Law Rev. 559.
74 d’Emden v. Pedder 1 Com. L. Eep. 91; Deakin v. Webb, 1 Com. L. Rep. 585; but see contra, Wallaston’s Case, 28 Vict. L. Rep. 357.
75 16 Peters 370.
76 Webb v. Outrim, (1907) App. Cas. 81; see 20 Harvard Law Rev. 494.
77 The local desires in the South Africa colonies concerning unification or federation, were quite diverse. Natal favored federation so as to preserve her identity and better safeguard her rights. Only five members of the convention are said to have favored federation and these were Natal delegates. On the other hand, the Cape and the Transvaal favored unification, the Orange River Colony being more or less neutral. Rhodesia being a farming district cared little for federation or unification. Unification it is thought will do away with conflicts between the central and the State governments, which the convention thought had retarded the progress of Canada and Australia. Files of “South Africa,” October, 1908–June, 1909.
78 Compare U. S. Const., Art. 2, Sec. 2, and Art. 3, Sec. 1.
79 Compare U. S. Const., Art. 2, Sec. 4.
80 Munro, Const, of Can., pp. 216, 217.
81 Compare U. S. Const., Amendment 11, which cleared up a supposed ambiguity in Art. 3, Sec. 2.
82 U. S. Const., Art. 3, Sec. 2. The Australian Constitution did not adop amendment 11, to the American Constitution due to the decision in Chisholm v. Georgia, 2 Dall. 419.
83 See 1 Kent Com. 400 et seq.
84 Van Holst, Const. Hist, of U. S., Vol. 1, p. 453.
85 Clements, Can. Constitution, pp. 125–127.
86 Munro, Const, of Can., p. 222.
87 Compare U. S. Const., Art. 4, Sec. 2, Subsec. 2. The Australian Constitution by making the procedure judicial obviates a difficulty of inter-state rendition experienced in the United States where the return of a fugitive is an executive function.
88 38 Vict., c. 2, sec. 47.
89 Munro, Const, of Can., pp. 221, 222; Théberge v. Landry, 2 App. Cas. 102. As to appeals under the Canadian Insolvent Act, see Cushing v. Dupuy, 5 App. Cas. 409.
90 53 & 54 Vict., c. 27.
91 Quick and Garran, Const, of Aust. Coin., p. 798.
92 Munro, Const, of Can., p. 96.
93 Quick and Garran, Const. Aust. Com., pp. 738, 742, 754.
94 “South Africa,” Feb. 27, 1909, pp. 451, 453.
95 Compare U. S. Const., Art. 1, Sec. 10, Subsec. 2.
96 The title is in the crown, but the use is in the province. St. Catherine’s Milling Co. v. Reg., 14 App. Cases 46.
97 See Indian Claim Case, 60 L. J. P. C. 11.
98 Compare U. S. Const., Art. 1, See. 9, Subsec. 5, which provides against preference being given “to the ports of one State over those of another.”
99 Natal fearing her railways and harbors might be used discriminately by the Union had “all provinces” inserted in Section 127.
100 A good account of the origin of such commissions is given in Quick and Garran, Const, of Aust. Com., p. 896 et seq., where the origin is traced back to the “Board of Trade” of the Privy Council in England.
101 Compare U. S. Const., Art. 4, Sec. 3, Subsec. 1.
102 Compare U. S. Const, Art. 4, Sec. 3, Subsecs. 1, 2.
103 “South Africa,” Nov. 13, 1909, p. 583.
104 “South Africa,” July 24, 1909, p. 250.
105 “South Africa,” Dec. 5, 1908, p. 548.
106 “South Africa,” July 10, 1909, p. 117.
107 “South Africa,” July 3, 1909, pp. 36, 41.
108 Similarly the Asiatic question is left to the Union instead of to the provinces (S. A. 147). In Natal the Asiatics are said to exceed the whites in numbers and consequently she has attempted repressive legislation. Files of “South Africa,” October, 1908–June, 1909.
109 See Parliamentary Debates, supra, and Files of “South Africa,” supra.
110 Ex parte Worms, 22 L. C. Jur. 109, 2 Cart. 315, cited in Clements Can. Constitution, p. 345. See also Quick and Garran, Const, of Aust. Com., p. 635 et seq.
111 Parliamentary Debates, 1909, Vol. 9, Column 1023.
112 Quick and Garran, Const, of Aust. Com., p. 632. See the succeeding pages for a good summary of the growth of the practice of consulting the colonies in regard to the negotiation of commercial treaties.
113 Quick and Garran, Const, of Aust. Com., p. 637.
114 Quick and Garran, Const, of Aust. Com., pp. 570, 571.
115 Munro, Const, of Can., p. 144.
116 Quick and Garran, Const, of Aust. Com., p. 600.
117 Donegani v. Donegani, 3 Knapp, P. C. 63; Re Adam, 1 Moo. P. C. 460; Clements, Can. Constitution 230.
118 Bryden’s Case, 68 L. J. P. C. 118; Re Tomey Homma, 72 L. J. P. C. 23; Clements, Can. Constitution 231 et seq.
119 Clark, Aust. Const. Law, p. 97.
120 “South Africa,” Aug. 14, 1909, p. 379; Aug. 28, 1909, p. 503; Aug. 21, 1909, p. 426; Sept. 4, 1909, p. 538.