The South African Senate
| Author | B. Beinart |
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb02718.x |
| Published date | 01 November 1957 |
| Date | 01 November 1957 |
THE
MODERN LAW REVIEW
Volume
20
November
1957
No.
6
THE SOUTH AFRICAN SENATE'
THE
primary purpose of the Senate Act, No.
53
of
1955
(recently
declared valid by the South African Appellate Division*), was to
enable the Nationalist Government to circumvent the entrenched
provisions of the South Africa Act,
1909.
Taken with its sequel,
the South Africa Act Amendment Act, No.
9
of
1956,
the effect was
virtually to remove the few elements of rigidity that existed in the
South African Constitution.
An
inevitable by-product of this
''
constitutional
"
revolution was the radical transformation
brought about by the Senate Act,
1955,
in the constitution,. purpose
and stature of the Senate itself.
For
a thorough appreciation of
this far-reaching measure, it is necessary
to
start with the Senate
created
in
the original South Africa Act.
At the time of Union the four colonies all had bicameral parlia-
ments, but for some of them this was a fairly recent innovati~n.~
To
small communities an Upper House often appears to be a
cumbrous and needlessly expensive luxury.
At
that juncture,
too,
Upper Houses tended to be out
of
favour because the conflict
between the Lords and the Commons was looming ahead in the
United Kingd~m.~ Among many of the delegates to the National
1
Professor
L.
M. Thompson has kindly put parts of hie important projected
publication
on
The Unification
of
South Africa
at my disposal, and
I
am greatly
indebted to him for much of my information.
As
his book is not yet in print,
my citations from
it
cannot refer
to
pages.
I
have also had the benefit
of
personal discussions with him
on
many
of
the problems relating to the Senate.
2
Collins
v.
Minister
of
Interior,
1957
(1)
S.A.
(A.D.).
3
Until
1893
when responeible government was introduced, Natal had only
one chamber (Kennedy snd Schlosberg,
The Law ad,,Custom
of
the South
African Constitution
(1935),
p.
25.
The Colony of Natal
and the Closer Union Movement
"
in Butterworth's
5.
A. Law Review,
1955,
p.
82).
The two republics also favoured single chambers, but the Transvaal
changed over to two Houses in
1890
(Kennedy and Schlosberg,
op. cit.,
p.
36).
The Transvaal second chamber was rather peculiar in character.
Called the
Tweede Volksraad,
it
WM
only allowed
to
legislate upon certain
matters, and its measures could be altered by the First Volksraad.
On
the
other hand
it
had
no
right of revision or notification of laws passed
b the First Volksraad (Law
4
of
1890).
The Orange Free State only
oztained a second House as a Crown colony in
1907
(Zbid.,
p.
37).
The
Cape, however, had two Houses, both directly elected, since the inception of
representative government in
1853.
L.
M. Thompson,
4
Mandelbrote,
Cambridge History
of
the British Empire,
Vol.
0,
p.
681.
549
VOL.
20
36
550
THE
MODERN
LAW REVIEW
VOL.
20
Convention there was therefore no great enthusiasm for, and in some
individual instances a strong inclination to oppose, bicameralism.
Others, however, saw in an Upper House a device for protecting the
smaller colonies against the larger," and for watching over the
interests of the coloured races, who would not be fully represented
in
the Lower House. The delegates, however,
soon
became reconciled
to bicameralism and in the result a Senate emerged from the Con-
vention which not only embodied the traditional features usually
associated with the Upper House as a house of review and a house
of elderly statesmen, but was injected with several elements of
federalism, and was to some extent made guardian of the Constitu-
tion and watchdog of the unrepresented coloured races. The
following features of the Senate bring out these aspects clearly.
1.
As a house of elders and review, a higher minimum age was
laid down for Senators,
viz.,
thirty,6 and a property qualification,
namely, ownership of immovable property in the Union to the
value of
2500
over and above any special mortgage,' was introduced
for elected (but not for nominated) Senators to ensure,
no
doubt,
that those elected would be of the
gens
arrivds.
At the same time,
the Senate was to some extent to be free from the immediate
influence of the mass of the electorate, and an indirect means of
election was decided upon.8 Some of the members were to be
nominated by the Government in order to include,
it
was hoped,
''
men prominent
in
the life of the nation who would otherwise be
lost to politics,"
lo
on
the model of the House of Lords. The
others were to be elected at the outset by the two Houses of each
colonial legislature, and thereafter vacancies were to be filled by
election by the Provincial Councils." After ten years election was
to be made by an electoral college consisting of members of the
Provincial Council and members of the Lower House
for
each
province.lZ All Senators would hold their seats for ten years. Lord
Brand has described the composition of the Senate as
a
compound
of the principles of the Canadian and the American Constitutions.13
The dangers of government control and patronage inherent in
nomination were neutralised by a system of indirect election, which
at the same time was to serve provincial interests.
2.
The system of equal representation for all provinces was
adopted by allotting eight members to each of them." This was a
great concession by the Cape, then the biggest and most populous
colony, in favour of the other colonies, in particular Natal and the
5
Cf.
Welton,
The Inner History
of
the National Convention,
pp.
162-163.
6
S.A.
Act,
8.
26
(a).
7
8.
26
(e).
8
See
F.
5.
Malen,
Konvensie-Dagboek,
1908-1909,
p.
61.
9
a.
24
(i).
10
Brand,
The Union
of
South Africa,
p.
64.
11
8.
24
(iii).
12
8.
25
(ii).
13
Brand,
op.
cit.,
p.
67.
14
68.
24
(iii)
and
25
(ii).
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