By Due Process of Law

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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.
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Product Details

  • ISBN-13: 9781841130491
  • Publisher: Hart Publishing UK
  • Publication date: 10/28/1999
  • Pages: 420
  • Product dimensions: 15.60 (w) x 23.40 (h) x 35.00 (d)

Table of Contents

Preface xiii
Acknowledgments xvi
Table of Cases xvii
Table of Statutes xxi
1. The European Colonisation of Southern Africa 1
I. The Initial Invasions 1650-1806 1
The 'legal' basis of European colonisation 5
II. The Consolidation and Fragmentation of British Rule 1806-1880 8
The formative years 9
The Great Trek and the creation of the Boer Republics 15
Diamonds 21
2. The Boer Wars 26
I. The First Boer War 26
II. The 'Independent' Boer Republics 28
Gold 29
Political developments in the Cape and the construction of a 'liberal' Afrikaner identity 33
The Jameson Raid 39
Constitutionalism and the rule of law in the Republic: The Brown v Leyds controversy 42
Constitutionalism and the rule of law in the Orange Free State 48
III. The Second Boer War 52
Milnerism 53
War 57
3. Securing a White Peace 62
I. British Policy Towards the Non-White Races 64
The native protectorates 65
The South African Native Affairs Commission 66
Chinese labour and racial discrimination in the Witwatersrand mines 67
The meaning of black and white 70
On sex and marriage across the racial divide 74
Land ownership and development in the Transvaal 76
Conclusion 78
II. From Military Defeat to Political Victory: The Reassertion of the Afrika(a)ner Identity 79
The rise and fall of the Lyttleton constitution 81
III. From 'Reconstruction' to 'Redemption' 85
The Transvaal 86
Natal 88
The Orange Free State 91
The Cape 92
IV. The Emergence of Non-White Political Movements 94
The African Political Organisation 95
Native black politicians and political organisations 97
V. Conclusion 98
4. The Act of Union 1909 99
I. The Constitutional Structure of South Africa 101
A unitary or federal state? 103
The legislature and executive 107
The electoral system 112
The judiciary 117
Provincial government 119
The protectorates 120
The entrenched clauses 121
II. Conclusion 128
5. From Autonomy to Independence 132
I. State-Sponsored Racial Discrimination 1909-1918 132
Land 133
Separate and unequal? Schooling in the Cape 134
'Mohammedan marriages' 139
Labour relations 140
Fragmentation within the Afrika(a)ner community 143
Separate but equal? Trams in the Transvaal 144
Of race and reputation 147
The constitutionality of the Land Act 1913: Thompson v Kama 148
Non-white opposition movements 149
II. The Consolidation and Reinforcement of State-Sponsored Racial Discrimination 1919-1930 152
R v Hildick-Smith and Dadoo Ltd v Krugersdorp Municipal Council 153
The 1924 general election 157
The 1929 general election 163
R v Ndobe (1930) 165
Reinforcing the entrenchment thesis: Trethowan v Attorney-General for New South Wales 168
Asiatic traders in the Transvaal 170
Minister of Posts and Telegraphs v Rasool 174
III. Conclusion 177
6. Disenfranchising the 'African' 179
I. The Terms of Independence: The Statute of Westminster 1931 179
The impact of independence on the entrenched clauses 182
The Pollack thesis 185
II. A White Consensus on Native Policy? The Hertzog-Smuts Coalition Government 187
A deferential judiciary? 189
The Status of the Union Act 1934 191
The judicial role of the Privy Council 193
III. The Representation of the Natives Act 1936 197
IV. Ndlwana v Hofmeyr 202
The first instance judgment 203
The Appellate Division judgment 205
The reaction to Ndlwana 208
V. The Second World War 209
War powers 213
South African nazis 214
The 1943 general election 216
Schools and sea and sand and soldiers -- and segregation 217
VI. Conclusion 221
7. Harris v Donges (Minister of the Interior) No.1: The Immediate Context 226
I. The 1948 General Election 228
The Purified Nationalist government: the politicians 229
II. The Nationalist Government: The Initial Programme 231
Consolidating Nationalist authority 235
The legal boundaries of discrimination 239
White press reaction 245
III. Judicial 'Responses' to Apartheid 248
Radebe v Hough 249
Sachs v Donges 250
R v Abdurahman 251
An independent judiciary? 256
8. Harris v Donges (Minister of the Interior) No. 1: The Litigation 260
I. The Separate Representation of Voters Bill 260
The Cowan thesis 264
The parliamentary opposition 267
The extra-parliamentary opposition 269
Swart and Nicol v De Kock 272
II. The Judgment
On transport, sex and marriage across the racial divide -- again 274
Harris No. 1: the Appellate Division 278
Argument 283
Judgment 285
III. The Reaction 290
IV. Conclusion 299
9. Harris v Minister of the Interior No. 2 301
I. The High Court of Parliament Bill 301
Reaction to the Bill 304
II. The 'Judgments' of the Cape Provincial Division and the High Court of Parliament 305
III. Before the Appellate Division 309
The judgments 309
IV. The Reaction 313
V. Race Discrimination at Common Law 316
Separate but equal revisited: R v Lusu 316
The 1953 general election 319
Asiatic traders in the Transvaal revisited: Pretoria North Town Council v A1 Electric Ice Cream 322
VI. Conclusion 325
The Criminal Law Amendment Act 1953 329
"Bantu education" 330
On civil liberties 331
Political realignment in white society 332
10. Collins v Minister of the Interior 336
I. The Legislation 339
The Appellate Division Quorum Act 1955 340
The Senate Act 1955 348
II. The South Africa Act Amendment Act 1956 360
The joint sitting 361
III. The Collins Litigation 362
The first instance judgment 363
The Appellate Division 364
Reaction to the judgments 371
IV. The Aftermath 376
V. Conclusion 383
11. Constitutionalism, Parliamentary Sovereignty and the Common Law 384
I. Electoral Apportionment 385
II. A Second Legislative Chamber 391
III. The Independence of the Judiciary 393
The appointment of judges 395
The common law as a guarantor of conservative political morality 397
IV. Constitutions as 'Fundamental' Law 403
Legitimising the principle 405
V. Conclusion 414
Bibliography 415
Index 423
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