By Due Process of Law

By Due Process of Law

by Ian Loveland

ISBN-10: 1841130494

ISBN-13: 9781841130491

Pub. Date: 10/28/1999

Publisher: Hart Publishing UK

The South African case of Harris v. (Donges) Ministers of the Interior was triggered by the South African government's attempt in the 1950's to disenfrachise non-white voters on th cape province. It is still referred to as the case that illustrates, as a matter of constitutionsl doctrine, it is not possible for the United kingdom Parliament to produce a staute which


The South African case of Harris v. (Donges) Ministers of the Interior was triggered by the South African government's attempt in the 1950's to disenfrachise non-white voters on th cape province. It is still referred to as the case that illustrates, as a matter of constitutionsl doctrine, it is not possible for the United kingdom Parliament to produce a staute which limits the powers of seccussive Parliaments. The purpose of this book is twofold. First it offers a fuller picture of the story lying behind the Harris litigation, and the process of British acquisition of and dis-engagement from the government of its 'white' colonies in southern Africa. Insight into the enfuing emegence and consolidation of apartheid as a system of political and social organization is also gained. Secondly, the book attempts to use the South African experience to address broader contemporary British concerns about the nature of the Constitution and the role of the courts and legislature in making the Constitution work. The Harris saga conveys better than any episode of British political history the enormous significance of the choices a country makes (or fails to make) when it embarks upon the task of creating or revising its constitutional arrangements. This, then, is a searching re-examination of the fundamentals of constitution-making, written in the light of the British government's commitment to promoting whole-sale reform.

Product Details

Hart Publishing UK
Publication date:
Product dimensions:
15.60(w) x 23.40(h) x 35.00(d)

Table of Contents

Table of Casesxvii
Table of Statutesxxi
1.The European Colonisation of Southern Africa1
I.The Initial Invasions 1650-18061
The 'legal' basis of European colonisation5
II.The Consolidation and Fragmentation of British Rule 1806-18808
The formative years9
The Great Trek and the creation of the Boer Republics15
2.The Boer Wars26
I.The First Boer War26
II.The 'Independent' Boer Republics28
Political developments in the Cape and the construction of a 'liberal' Afrikaner identity33
The Jameson Raid39
Constitutionalism and the rule of law in the Republic: The Brown v Leyds controversy42
Constitutionalism and the rule of law in the Orange Free State48
III.The Second Boer War52
3.Securing a White Peace62
I.British Policy Towards the Non-White Races64
The native protectorates65
The South African Native Affairs Commission66
Chinese labour and racial discrimination in the Witwatersrand mines67
The meaning of black and white70
On sex and marriage across the racial divide74
Land ownership and development in the Transvaal76
II.From Military Defeat to Political Victory: The Reassertion of the Afrika(a)ner Identity79
The rise and fall of the Lyttleton constitution81
III.From 'Reconstruction' to 'Redemption'85
The Transvaal86
The Orange Free State91
The Cape92
IV.The Emergence of Non-White Political Movements94
The African Political Organisation95
Native black politicians and political organisations97
4.The Act of Union 190999
I.The Constitutional Structure of South Africa101
A unitary or federal state?103
The legislature and executive107
The electoral system112
The judiciary117
Provincial government119
The protectorates120
The entrenched clauses121
5.From Autonomy to Independence132
I.State-Sponsored Racial Discrimination 1909-1918132
Separate and unequal? Schooling in the Cape134
'Mohammedan marriages'139
Labour relations140
Fragmentation within the Afrika(a)ner community143
Separate but equal? Trams in the Transvaal144
Of race and reputation147
The constitutionality of the Land Act 1913: Thompson v Kama148
Non-white opposition movements149
II.The Consolidation and Reinforcement of State-Sponsored Racial Discrimination 1919-1930152
R v Hildick-Smith and Dadoo Ltd v Krugersdorp Municipal Council153
The 1924 general election157
The 1929 general election163
R v Ndobe (1930)165
Reinforcing the entrenchment thesis: Trethowan v Attorney-General for New South Wales168
Asiatic traders in the Transvaal170
Minister of Posts and Telegraphs v Rasool174
6.Disenfranchising the 'African'179
I.The Terms of Independence: The Statute of Westminster 1931179
The impact of independence on the entrenched clauses182
The Pollack thesis185
II.A White Consensus on Native Policy? The Hertzog-Smuts Coalition Government187
A deferential judiciary?189
The Status of the Union Act 1934191
The judicial role of the Privy Council193
III.The Representation of the Natives Act 1936197
IV.Ndlwana v Hofmeyr202
The first instance judgment203
The Appellate Division judgment205
The reaction to Ndlwana208
V.The Second World War209
War powers213
South African nazis214
The 1943 general election216
Schools and sea and sand and soldiers -- and segregation217
7.Harris v Donges (Minister of the Interior) No.1: The Immediate Context226
I.The 1948 General Election228
The Purified Nationalist government: the politicians229
II.The Nationalist Government: The Initial Programme231
Consolidating Nationalist authority235
The legal boundaries of discrimination239
White press reaction245
III.Judicial 'Responses' to Apartheid248
Radebe v Hough249
Sachs v Donges250
R v Abdurahman251
An independent judiciary?256
8.Harris v Donges (Minister of the Interior) No. 1: The Litigation260
I.The Separate Representation of Voters Bill260
The Cowan thesis264
The parliamentary opposition267
The extra-parliamentary opposition269
Swart and Nicol v De Kock272
II.The Judgment
On transport, sex and marriage across the racial divide -- again274
Harris No. 1: the Appellate Division278
III.The Reaction290
9.Harris v Minister of the Interior No. 2301
I.The High Court of Parliament Bill301
Reaction to the Bill304
II.The 'Judgments' of the Cape Provincial Division and the High Court of Parliament305
III.Before the Appellate Division309
The judgments309
IV.The Reaction313
V.Race Discrimination at Common Law316
Separate but equal revisited: R v Lusu316
The 1953 general election319
Asiatic traders in the Transvaal revisited: Pretoria North Town Council v A1 Electric Ice Cream322
The Criminal Law Amendment Act 1953329
"Bantu education"330
On civil liberties331
Political realignment in white society332
10.Collins v Minister of the Interior336
I.The Legislation339
The Appellate Division Quorum Act 1955340
The Senate Act 1955348
II.The South Africa Act Amendment Act 1956360
The joint sitting361
III.The Collins Litigation362
The first instance judgment363
The Appellate Division364
Reaction to the judgments371
IV.The Aftermath376
11.Constitutionalism, Parliamentary Sovereignty and the Common Law384
I.Electoral Apportionment385
II.A Second Legislative Chamber391
III.The Independence of the Judiciary393
The appointment of judges395
The common law as a guarantor of conservative political morality397
IV.Constitutions as 'Fundamental' Law403
Legitimising the principle405

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