LEGISLATURE AND JUDICIARY: Reflections on the Constitutional Issues in South Africa: Part II
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02123.x |
| Date | 01 July 1953 |
| Published date | 01 July 1953 |
| Author | Denis V. Cowen |
THE
MODERN
LAW
REVIEW
Volume
16
july
1953
No.
3
LEGISLATURE AND
JUDICIARY
REFLECTIONS
ON
THE
CONSTITUTIONAL
ISSUES
IN
SOUTH
AFRICA
:
PART
I1
THE SOVEREIGNTY
OF
PARLIAMENT
IN
the first part of this article
I
explained the reasons given by
the SoLth African Appeal Court in the
Vote
Case
for holding
that the Statute of Westminster did not impair the legal force
of
the entrenched sections
of
the South Africa Act.
It
will be recalled
’
that counsel for the Government put forward a number of proposi-
tions about the British Parliament and its relationship with the
courts, which he claimed were directly relevant
to
the issues in
South Africa. He contended that these propositions were implicit
in a true view
of
legislative sovereignty, and that unless they
were applied in the Government’s favour, it would follow that the
Union Parliament was not sovereign.
The court was not to be drawn into deciding the concrete case
before it by deduction from any preconceived theory of sovereignty.
And as their Lordships were satisfied that the Union Parliament
had been cast in a different mould from that of the Parliament of
the United Kingd~m,~ they did not consider
it
relevant to examine
the position in Britain. But when this has been said,
it
must be
acknowledeed that the Government’s contentions raised questions
of
1
2
1
4
5
v
intrinsic importance which merit discu~sion.~
15
M.L.R.,
July,
1952,
pp.
282
et seq.
Harris and Others
v.
Minister
of
the Interior,
1952(.2)
S.A.
498;
[1952] 1
T.L.R.
1245.
The later decision
of
the Appellate Division, declaring void the
High Court of Parliament Act, is reported
sub
nom.
Minister
of
the Interior
V.
Harris and Others,
1952
(4)
S.A.
769.
To
avoid confusion between these cases.
it is convenient
to
call the first the
Vote Case,
and the second the
High Court
Case.
15
M.L.R., at pp.
2823.
15
M.L.R., pp.
286-7.
For
fuller
discussion, see my essay on
Parliamentary
Sooereignty and the Entrenched Sections
of
the South Africa Act,
Juta,
1951,
Some
of
the topics outlined in this article
will
be more fully discussed by the
author in a
book
now
in preparation.
pp.
4-8.
273
Vor..
16
I8
274
TEE MODERN LAW REVIEW
VOL.
16
THE
JURISDICTION
OF
THE
COURTS
We have seen that the South Africa Act contains rules
of
law
prescribing the manner in which the constituent elements
of
Parlia-
ment must function
for
the purpose of passing legislation, and that
the entrenched sections are part of those rules."
It
was contended,
however, in the
Vote
Case
that the courts have
no
jurisdiction to
inquire whether the entrenched sections have been duly observed,
and that any other view is incompatible with the sovereignty
of
the Union Parliament.
Five arguments have been adduced
in
suppoi-t
of
this conten-
tion,' but, as
I
shall endeavour to show, none of them substantiates
it.
(i)
Conclusiveness
of
the
Parliament
Roll
Counsel
for
the Government claimed that if English legal
principles were applied-as he contended they should be-the voters'
application would necessarily fail, because, in Dicey's words,
English law does not recognise any judicial
or
other authority as
having the right
to
treat an Act
of
Parliament as void
or
unconsti-
tutional.'
It
is submitted, however, that English law is by no means
as favourable to the Government's case as was claimed. To say
that an English court cannot treat an Act of Parliament as void is
undoubtedly true, but does not end the matter; for it leaves un-
answered the question
"
What is an Act of Parliament?
''
The time is, of course, past when English lawyers might argue
that an Act of Parliament
is
void as being contrary to immutable
principles of natural
or
common law.' Today, as Lord Shaw
of
Dunfermline has stated,1° it is the merest platitude that
"
under
the British Constitution it is never open to judges
or
to any other
authority to challenge the validity
of
legislation by the 'Imperial
Parliament as an excess of power."
It
is, however, one thing to withhold from the courts juris-
diction
to
disregard an Act
of
Parliament as an excess of power,
6
15
M.L.R., p.
287.
7
Not
all
of
these were relied
on
by Counsel for the Government. For complete-
ness,
I
have also taken account
of
the arguments put forward by Professor
E.
C.
S.
Wade in his opinion
on
the entrenched sections, the
Cape Times,
March
24,
1952.
*
This is specifically stated
b
Dicey
to
be an
"
essential feature
of
8
Sovereign
Parliament like that of Engrand
":
Law
of
the Constitution,
9th ed., pp.
40,
91.
9
According to Maitland
(Collected
Papers,
Vol..
2,
p.
481),
the idea of fundam:ptpl
and immutable law Was never much more than a speculative dogma in
England. Hotdsworth'a views are substantially similar. The are summarised
in
his
Essays in
LQW
and History,
pp.
59,
66,
67,
81.
For tge contrary view,
see Professor C.
H.
McIlwain's
High Court
of
Parliament, passim,
and his
collection
of
essays entitled
Constitutionalism and the Changing World,
1939.
particularly Esssys,
IV,
VI
and
IX.
For further comment, see
S.
B.
Chrirnes,
English Constitutional Ideas
of
thc Fifteenth Century,
Cambridge, pp.
201,
284,
290-1,
and Plucknett,
Statutes and their Interpretation in the Fourteenth
Century,
pp. 26-9, and, on the subject generally,
G.
L.
Mosse's
The Struggle
for
Sowereignty
in
England,
1950. Lord
ShaW's book snggested the title
of
this rrticle.
10
Legislature and Judiciary,
University of London Press, 1911, p.
27.
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