| The Constitutional crisis of the 1950s was the | | | | the experiences and struggles of many South |
| result of unprecedented moves by the National | | | | Africans.17 During apartheid, the doctrine of |
| Party (NP) to consolidate power by subtly | | | | parliamentary supremacy meant that judges had |
| disenfranchising coloured voters, especially those | | | | limited power to protect individual rights against |
| who stayed in the Cape Provincial Division, using | | | | violations by the government, and judges had no |
| the Separate Representation of Voters Act, 46 | | | | Bill of Rights against which the legality of official |
| of 1951. The NP assayed to set up a High Court | | | | acts could be measured.18 The 1996 Constitution |
| of Parliament to override decisions made by the | | | | created a legal order in which an independent |
| erstwhile Appellate Division (AD) of the Supreme | | | | judiciary was empowered to review the legality |
| Court. In the first Harris case (Harris vs. Minister | | | | of all official acts. Now the new South Africa, the |
| of the Interior 1952 (2) SA 428 (A), the Separate | | | | constitution is “the supreme law of the |
| Representation of Voters Act was found to be | | | | Republic” and “law or conduct inconsistent |
| unconstitutional, since the special two thirds | | | | with it is invalid” (section 2 of the SA |
| majority procedure for amending the entrenched | | | | constitution Act 108 of 1996). |
| franchise rights of coloured voters, set out in the | | | | Section 41 of the Constitution (1996) also codifies |
| Constitution of the Union of South Africa, was not | | | | the separation of power among the three |
| followed.1 In dismissing the case, the Judge used | | | | branches by requiring that, all spheres of |
| the entrenched South Africa Act Section 35 which | | | | government and all organs of state must respect |
| stipulates that no person capable of being | | | | the constitutional status, institutions, power, and |
| registered as a voter should be disqualified on the | | | | functions of government and not assume any |
| basis of race or colour, however if there are any | | | | power or function except those conferred on |
| amendments this should be done collectively by | | | | them in terms of the Constitution. Section 165 of |
| both Houses of Parliament, at the third reading | | | | the Constitution vests the “judicial authority of |
| and agreed to by a two thirds majority. The NP | | | | the Republic” in the courts and provides that |
| responded by passing the High Court of | | | | courts are independent and must apply the |
| Parliament Act, 35 of 1952. | | | | Constitution and the law “without fear, favour, |
| The High Court of Parliament had the duty to | | | | or prejudice” (section 165[2])19. The existence |
| review judgements made by the Appellant | | | | of a Bill of Rights in the 1996 Constitution (chapter |
| Division of the Supreme Court and declaring invalid | | | | 2) provides judges with a legal framework to |
| any provision of any Act of Parliament, and only a | | | | guide their decisions and clarify the limits of |
| Minister of State had the power to lodge with the | | | | government power and extent of government |
| „court? an application for the review of such | | | | obligations. Moreover, section 33 of the Bill of |
| an order. 2 In the second Harris case (Harris vs. | | | | Rights provides that “everyone has the right |
| Minister of the Interior 1952 (4) SA 428 769 (A), | | | | to administrative action that is lawful, reasonable |
| the full panel bench held that if an Act is beyond | | | | and procedurally fair”, thus empowering the |
| the competence of a legislative body, its motives | | | | courts to review administrative action.20 |
| become irrelevant, whether they be ethical, legal | | | | Given that individual rights are entrenched in the |
| or political. Judge Centlivres CJ said, the | | | | Constitution the Judicial Services Commission |
| „court? was just parliament functioning by | | | | (JSC) is supposed to provide protection against |
| another name and that the „court? was just | | | | politically motivated appointments made without |
| another „legislature?, it could not by simple | | | | participation by the legal profession. Section 174 |
| majority do what the constitution required it to do | | | | of the Constitution provides that the President, |
| by special majority. The Act was therefore | | | | after consulting the JSC, appoints the chief justice |
| declared invalid.3 These two cases in the early | | | | and deputy chief justice of the Constitutional |
| 1950s illustrate the Appellate Division of the | | | | Court and the president and deputy president of |
| Supreme Court of South Africa?s impartiality and | | | | the Supreme Court of Appeal (section 174[3]).21 |
| willingness to act in opposition to the NP. | | | | Other Constitutional Court judges are appointed |
| However the NP proceeded to pass South Africa | | | | by the President from a list of recommendations |
| Amendment Act, 9 of 1956 to validate Separate | | | | compiled by the JSC (section 174[3]).22 |
| Representation of Voters Act, 46 of 1951 by a | | | | Consequently, the Constitution sets out guidelines |
| special two thirds majority. They increased the | | | | for removal and requires that a variety of actors, |
| size of the Senate by appointing loyal party | | | | rather than only the executive, play a role in the |
| members to give themselves the two thirds | | | | ultimate decision. According to section 177, if the |
| majority claiming the entrenched coloured voting | | | | JSC finds that a “judge suffers from an |
| rights violated parliament consequently appointed | | | | incapacity, is grossly incompetent or is guilty of |
| six new judges whom they had confidence in.4 In | | | | gross misconduct” and if at least two-thirds |
| Collins vs. Minister of the Interior 1957 (1) SA 552 | | | | of the National Assembly votes for that judge?s |
| (A), Collins used the South Africa Act Section 35 | | | | removal, the President must remove the judge |
| and 152 to defend his argument of coloureds? | | | | from office.23 Also the creation of the |
| constitutional guarantee to enfranchise arguing | | | | Constitutional Court impacted on the ability of the |
| that the Senate Act was unfair and biased. The | | | | judiciary to effectively execute its power of |
| Judge held that necessary procedures, like both | | | | review and to promote the values and freedoms |
| Houses of Parliament sitting and agreeing to the | | | | to which the country had agreed during the |
| document by a two thirds majority, were | | | | transition. |
| followed in promulgating the amendment, so it | | | | FOOTNOTES FOR THIS ESSAY BELOW |
| was validated. Only Oliver Schreiner dissented. | | | | 1 Devenish G, in article found on (accessed 31 |
| This marked the period of parliamentary | | | | March 2009) |
| supremacy in South Africa. Discriminatory laws | | | | 2 Lauterpacht E, C. J. Greenwood, A. G. |
| were passed at a fast pace, which regulated | | | | Oppenheimer, International Law Reports, Volume |
| where one could work, live, travel, worship, | | | | 103, 2003 p65, found online on (accessed on 31 |
| marry, make love and where to be buried, | | | | March 2009) |
| legislation like Urban Areas Act, Immorality Act, | | | | 3 Van Der Merwe C G and Du Plessis JE, |
| 1957 and Prohibition of Mixed Marriages Act 1949 | | | | Introduction to the Law of South Africa, 2004 |
| were enforced.5 Even though, beginning at the | | | | p60, found online on >(accessed on 31 March |
| time of the union of South Africa in 1910, the | | | | 2009) |
| country had a Westminster system of | | | | 4 Bizos G, in an article The Abrogation and the |
| government in which the legislature was supreme | | | | Restoration of Law and Judicial Independence in |
| over the other branches of government.6 | | | | South Africa, found online on (accessed on 31 |
| Moreover, the judiciary adopted a “narrow | | | | March 2009) |
| approach to its interpretive function” choosing | | | | 5 Bizos G, in an article The Abrogation and the |
| to interpret legislation according to what it | | | | Restoration of Law and Judicial Independence in |
| believed Parliament would have desired.7 During | | | | South Africa, found online on (accessed on 31 |
| the 1950s the National Party packed the bench | | | | March 2009) |
| with political appointees and with judges who had | | | | 6 Gordon A and Bruce D, in an article |
| no history of opposition to apartheid.8 In many | | | | Transformation and the Independence of the |
| cases worthy judges were passed over in terms | | | | Judiciary in South Africa found online on (accessed |
| of promotion in favour of those less worth of | | | | 31 March 2009) |
| appointments.9 One case is that of Oliver | | | | 7 Dugard J, Human rights and the South African |
| Schreiner who was passed over to be Chief | | | | legal order: 1978 p233 |
| Justice because of his opposition to apartheid.10 | | | | 8 Dyzenhaus D, Truth, reconciliation and the |
| This practice facilitated the creation of a situation | | | | apartheid legal order :1998 p38 |
| where the bench “was largely a mirror of the | | | | 9 Ellmann S, In a time of trouble: Law and liberty |
| political establishment, virtually all-male, all-white, all | | | | in South Africa’s state of emergency:1992 p |
| middle-class and largely Afrikaans speaking.11 By | | | | 228 |
| the mid-1980s there were “substantiated | | | | 10 Haynie Stacia L, Judging in black & white : |
| suggestions” that in the provincial divisions, | | | | decision making in the South African Appellate |
| especially the Transvaal, more liberal judges were | | | | Division, 1950-1990: 2003 |
| intentionally not assigned to security trials and | | | | 11 Rickard, C. (2003). The South African Judicial |
| those who gave unfavourable decisions especially | | | | Services Commission. Conference on “judicial |
| on emergency laws were usually excused from | | | | reform: Function, Appointment and Structure”: |
| dealing with the same cases next time.12 | | | | University of Cambridge. 31 March 2009) |
| Under the Westminster model of government the | | | | 12 Forsyth C F, In danger for their talents: A |
| legislature is supreme and courts are confined to | | | | study of the Appellate Division of the Supreme |
| interpreting acts when the language is ambiguous | | | | Court of South Africa from 1950-1980: 1985 p50 |
| and to discerning the Parliament?s intent. The | | | | 13 Dugard J, Human rights and the South African |
| Westminster system, however, was designed to | | | | legal order:1978 ,p7 |
| work in a country where the legislature was | | | | 14 Ellmann S, In a time of trouble: Law and liberty |
| representative of and considered legitimate by | | | | in South Africa’s state of emergency: 1992 |
| the majority of the people while in South Africa, | | | | p113 |
| the legislature was certainly not representative of | | | | 15 Dyzenhaus D Truth, reconciliation and the |
| or concerned with protecting the rights of the | | | | apartheid legal order:1998, p61, quoting Pius Langa |
| black majority.13 | | | | 16 Constitution of the Republic Of South Africa, |
| There were a few „chosen? judges to deal | | | | (108 0f 1996) Section 1 |
| with all emergency-related issues for six-and-a-half | | | | 17 Gordon A and Bruce D, in an article |
| years which made the court?s jurisprudence, an | | | | Transformation and the Independence of the |
| expression of a smaller range of South African | | | | Judiciary in South Africa found online on (accessed |
| understanding 14 There were ouster clauses like | | | | 31 March 2009) |
| the Public Safety Act (3 of 1953), Section 5b | | | | 18 ibid |
| which stated that no court shall be competent to | | | | 19 Constitution of the Republic Of South Africa, |
| inquire into or give judgment on the validity of | | | | (108 0f 1996) |
| any such proclamation made by the State | | | | 20 ibid |
| President. By passing subtle worded legislation that | | | | 21 ibid |
| was not open to interpretation, the legislature | | | | 22 ibid |
| often overruled decisions of the courts. By failing | | | | 23ibid |
| to declare invalid racist, oppressive and unjust | | | | FREDRICK MATSHEZA has a Bachelor Of Arts |
| legislation, the judiciary “put the stamp of | | | | Honours Degree in English from University Of |
| legality on a legal framework structured to | | | | Zimbabwe attained in 2007. Currently he is |
| perpetuate disadvantage and inequality”15 | | | | studying for a Bachelor Of Laws Degree at |
| However, can that still happen in South Africa? | | | | University Of The Witwatersrand in South |
| Section 1 of the Constitution of South Africa | | | | Africa.He likes writing articles especially on |
| (1996), states that South Africa recognises the | | | | contemporary music and current global issues. |
| supremacy of the Constitution and the rule of | | | | Fredrick also likes meeting new people, socializing |
| law, universal adult suffrage, national common | | | | and going to church. He describes himself as a |
| voters? roll to ensure accountability, | | | | humble man from a very humble background , |
| responsiveness and openness.16 The tendency | | | | who is just working hard to make a niche for |
| toward executive-mindedness by apartheid judges | | | | himself in this competitive world. He says he owes |
| stemmed partly from the fact that almost all | | | | everything he has achieved, first to the Almighty |
| judges were white males from the same strata | | | | GOD, to the three women who made a |
| of society and with the same backgrounds as the | | | | difference in his life and future,that is his mother, |
| members of the minority government; the | | | | Mrs Rumbidzai Matsheza, only sister Shyline Fadzo |
| judiciary thus tended to support the executive?s | | | | Matsheza and aunt, Mrs Georgina Nhapi. |
| political and social views and could not relate to | | | | |