By Due Process of Law: Racial Discrimination and the Right to Vote in South Africa 1855-1960

by Ian Loveland

Overview

The South African case of Harris v. (Donges) Minister of the Interior is one familiar to most students of British constitutional law. The case was triggered by the South African government's attempt in the 1950s to disenfranchise non-white voters on the Cape province. It is still referred to as the case which illustrates that as a matter of constitutional doctrine it is not possible for the United Kingdom Parliament to produce a statute which limits the powers of successive Parliaments.



The purpose of this book is twofold. First of all it offers a rather 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 as well as the ensuing emergence and consolidation of apartheid as a system of political and social organisation. Secondly the book attempts to use the South African experience to address broader contemporary British concerns about the nature of our Constitution and the role of the courts and legislature in making the Constitution work. In pursuing this second aim, the author has sought to create a counterweight to the traditional marginalistion of constitutional law and theory within the British polity. 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 wholesale constitutional reform.

Product Details

ISBN-13:	9781841130491
Publisher:	Bloomsbury Academic
Publication date:	10/06/1999
Pages:	456
Product dimensions:	6.14(w) x 9.21(h) x 1.00(d)

About the Author

Ian Loveland is a Professor at City University, London.

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