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South Africa <*x>&&<>Q&$>ee$>Q4><><>&&i<>4><><i^^ South Africa UNION OF SOUTH AFRICA HE political tension of the previous three years in the Union of South TAfrica (see articles on South Africa in the AMERICAN JEWISH YEAR BOOK, Vols. 51, 52 and 53) broke, during the period under review, into a major constitutional crisis. A struggle began between the legislature and the judi- ciary over the "entrenched clauses" of the South Africa Act, which estab- lished the Union, and over the validity of a law passed last year by Daniel Francois Malan's Nationalist Government to restrict the franchise of "Col- ored" voters in Cape Province in contravention of these provisions. Simul- taneously, non-European (nonwhite) representative bodies started a passive resistance campaign against racially discriminatory legislation enacted by the present and previous South African governments. Resulting unsettled condi- tions in the country combined with world-wide economic trends to produce signs of economic contraction in the Union. The developing political and racial crisis brought foreign correspondents to report at first hand upon conditions in South Africa. Not all their reports were objective: some were characterized by exaggeration and distortion, and some by incorrect data. This applied particularly to charges of Nationalist anti-Semitism made in some reports. E. J. Horwitz, chairman of the South African Jewish Board of Deputies (central representative body of South Afri- can Jewry) in an interview published in Die Transvaler of May 16, 1952, specifically refuted as "devoid of all truth" allegations of such anti-Semitism, made on May 5, 1952, in the American news magazine Time. Mr. Horwitz stated that throughout its four years of office the Union Government had faithfully implemented the pledges of nondiscrimination against the Jewish community which Premier Malan and Deputy Premier N. C. Havenga had given to a deputation from the Board of Deputies upon their election in 1948 (see AMERICAN JEWISH YEAR BOOK, 1950 [Vol. 51], p. 290). Political Developments The constitutional crisis arose out of the government's Separate Repre- sentation of Voters Act, providing for the transfer of Colored (mulatto) voters in Cape Province from the common roll, where they exercised the franchise equally with the European (white) voters, to a separate communal register, under which they would be restricted to electing certain members of parliament to represent them exclusively (see AMERICAN JEWISH YEAR BOOK, 1952 [Vol. 53], p. 387). This act was put through parliament in June 396 UNION OF SOUTH AFRICA 397 1951 in the teeth of resistance by the opposition United and Labor parties in the legislature and widespread protest throughout the country. It was enacted by the two houses of parliament sitting separately, and by a simple majority vote in each, in violation of the entrenched clauses of the South Africa Act, which provide that legislation altering the status of nonwhite voters may only be enacted by a two-thirds majority of both houses of par- liament in joint session. The United Party had given notice (AMERICAN JEW- ISH YEAR BOOK, 1952 [Vol. 53], p. 388) that if the government insisted on forcing the measure through parliament without observing the prescribed procedure, it would contest the validity of the resultant act in the courts. Accordingly, in October 1951 four Colored voters asked the Cape Provin- cial Division of the Supreme Court to declare the Separate Representation of Voters Act invalid on the ground that it unconstitutionally changed their franchise rights. Counsel for the government argued that the court was bound by a 1937 decision of the Appellate Division of the Supreme Court in a re- lated matter. In that instance, action was brought by a Native (Negro) voter against legislation enacted by the Hertzog-Smuts government in 1936 which removed Native voters in the Cape from the common roll and placed them on a separate register. That legislation, however, had been enacted by the two houses of parliament in joint session, and by the requisite two-thirds majority, in accordance with the entrenched clauses of the South Africa Act. In its judgment of April 5, 1937, the Appeal Court therefore pronounced that act valid, the then Chief Justice further holding that the 1934 Statute of Westminster made the Union Parliament a completely sovereign body which could legislate as it chose. On October 26, 1951, the Cape Bench accepted the contention that it was bound by the higher court's 1937 ruling and held that since parliament was sovereign, the court could not question the validity of any legislation parlia- ment enacted. The case was taken on appeal to the higher court, and on March 20, 1952, the five judges constituting the Appeal Court Bench unanimously reversed the decision of the lower court. They held that the entrenched clauses of the South Africa Act did not affect the sovereignty of parliament, but simply laid down the procedure which parliament had to follow on the stipulated mat- ters in order to exercise its sovereign will, and that as a part of the act estab- lishing the Union, they had binding constitutional force. Hence the Separate Representation of Voters Act, enacted in contravention of this procedure, was invalid. The opposition then demanded that the government, having thus suffered a major reverse on a crucial issue, should resign and go to the country in new elections. The government refused either to resign or to accept the decision of the court. For a time it seemed that a deadlock was going to develop be- tween legislature and judiciary. Then the government announced that it would introduce legislation to create a High Court of Parliament to function as a court of final appeal on constitutional matters (in a manner similar to the Privy Council in Britain). A bill providing for the establishment of such a court was quickly prepared and introduced into parliament; and on May 30, 1952, this bill was put through the two houses of parliament, again in 398 AMERICAN JEWISH YEAR BOOK separate session and by a simple majority vote, and in the face of a united opposition. The new court was to consist of all members of parliament, headed by a special judicial committee. The opposition announced that it regarded the setting up of such a court as unconstitutional, and declared that it would not take part in it. The United Party also announced its intention of taking court action to test the validity of the new parliamentary court. When this action came before the Cape Division of the Supreme Court, the bench of three judges, on August 29, 1952, gave it as their unanimous verdict that the High Court of Parliament Act was invalid and of no legal force and effect. The minister gave notice of appeal against the Cape Court's verdict. Meanwhile the government, without awaiting the result of the case and despite the opposition boycott, proceeded with arrangements for the first session of the new High Court of Parliament, to review the Appeal Court's decision on the Separate Representation of Voters Act. The High Court of Parliament Act provided that all members of parliament were to be members of the court. The United and Labor parties announced that none of their members would participate in the new court; accordingly, when the High Court of Parliament met in Pretoria on August 25, 1952, no member of the opposition was present. The court sat in camera, but its decision was an- nounced in public on August 27, 1952. This decision reversed the Appeal Court's verdict on the Separate Representation of Voters Act, and proclaimed the act valid. Thus at the end of August, 1952, the constitutional crisis had reached a complete deadlock, the Cape Division of the Supreme Court hav- ing declared invalid the High Court of Parliament, which had only two days before reinstated the Colored Voters Act, which the Appellate Division of the Supreme Court had earlier rejected. At the time of going to press (November 1952), news was received that the Appellate Court had rejected the govern- ment's appeal and confirmed the invalidity of the Separate Representation of Voters Act. The Prime Minister said the government would accept this judgment. Suppression of Communism Tension scarcely less serious was caused by the government's application of its Suppression of Communism Act (see AMERICAN JEWISH YEAR BOOK, 1952 [Vol. 53], p. 388). Put through parliament in June 1951, this act gave the government power to "name" as a Communist and subject to legal restric- tions any person who at any time (even before the promulgation of the act) professed to be a Communist, or who "advocated, advised, defended or en- couraged" the achievement of "any of the objects" of Communism—a very broad and loose definition of Communism being included in the act. It fur- ther provided for the unseating of members of parliament or the provincial councils "named" as Communists. On January 25, 1952, Minister of Justice Charles Robberts Swart stated that 314 persons had been "'named" as Communists under the act, of whom 128 were non-Europeans, 4 were members of the Civil Service, and 7 were employees of the Railways and Harbors administration. UNION OF SOUTH AFRICA 399 Among the persons affected were Sam Kahn, M.P., who had originally been elected to parliament as a Communist, and Fred Carneson, who had similarly been elected to the Cape Provincial Council (both Kahn and Carneson were elected as representatives of native constituencies, which are allowed only to elect Europeans). On January 21, 1952, the Minister of Justice moved in the House of Assembly that a select committee under the act be appointed to deal with the cases of Kahn and Carneson.
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