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Esllccrul85seminaropening LA WYERS' COMMITTEE FOR CML RIGHTS UNDER LAW SUITE 400 • 1400 EYE STREET. NORTHWEST • WASHINGTON. D.C. 20005 • PHONE (202) 371-1212 CABLE ADDRESS: LAWCIV. WASHINGTON. D.C. SEMINAR ON TBE LEGAL ASPECTS OF APARTHEID . July 6-7, 1985 ****************** Panel I: Opening Session and Overview An Overview of Some Aspects of Constitutional a·nd Legal Structures in South Africa by Advocate Ernest Moseneke ****************** Co-Sponsors: Southern Africa Project of the Lawyers• Committee for Civil Rights under Law The Section of Individual Rights and Responsibilities of the American Bar Association The Standing Committee on World Order Under Law of the American Bar Association •w Papers presented at the Seminar on the Legal Aspects of Apartheid, co-sponsored by the Lawyers' Committee for Civil Rights Under Law and the Individual Rights and Responsibilities Section and the Standing Committee on World Order Under Law of the American Bar Association, Washington, D.C., July 6-7, 1985. Copyright 1985 by Southern Africa Project Lawyers' Committee for Civil Rights Under Law ' ... ,, . Ernest Moseneke AN OVERVIEW OF SOME ASPECTS OF CONSTITUTIONAL AND LEGAL STRUCTURES IN SOUTH AFRICA INTRODUCTION . JOHN LOCI<E imbued with the eighteenth century crusade of liberalism propounded a moral right of rebellion against laws.which severely violate basic human rights. In his Second Treatise of Government(1}, the contents of which work was re-echoed, in language and in thought, in the American Declaration of Independence, Locke stated the following . "to this perhaps it may well be said that, the people being ignorant and always discontented, to lay the foundation of government in the unsteady opinion and uncertain humour of the people is to expose. it to certain ruin; and no government will be able long to subsist if the people may set up a new legislative whenever they take offence of the old one, To this I answer ~ Quite the contrary. People are not so easily got out of their old forms as some are apt to suggest. They are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to. And if there be any original defects, or adventitious ones introduced by time or corruption, it is not an easy thing to get . them changed, even when all the world sees there is an opportunity for it. This slowness and aversion . I -2- ... .. • - 2 - in the people to quit their old constitutions has, in the many revolutions which have been seen in this kinqdom, in this and former aqes still kept us to, or after some interval of fruitless attempts, still brouqht us back aqain to, our old leqislative of Kinqs, Lords, and Commons, and whatever provo­ cations have made the crown be taken from some of our princes' heads, they never carried the people so far as to place it in another line." In South Africa, that, amonqst many other basic human riqhts, the democratic governmental process has been withheld from a substantial majority of its people, admits no doubt. Any fleeting historical study of South Africa constitutional and legal structures will readily support this mundane observa- tion. What is not equally certain, to some people at any rate, is whether the current constitutional initiatives or the "new deal" in South Africa constitute an extension of the democratic process to people who were before, not part of such a process. Argument has raged amonqst our countryr. men, and amonqst keen observers of the South African situation, on whether the current constitutional changes recently effected in South Africa, in the wordsof Locke, have "carried the people so far as to place 'them' in another line." Is our ruling class stuck in the quagmire by "slowness and aversion •.••..•..•.. to quit their old constitutions ?" .. I -3- - 3 - In this paper I will attempt to address this issue by firstly sketching a brief historical background to South African constitutional structures and legislation. There­ after, I will attempt· to briefly touch upon the race laws which provide the major props to the apartheid edifice. I will also look at constitutional institutions which were created exclusively for people other than white, and in particular, Africans, "Coloureds" and Indians. Finally, I will set out the major features of the new South African Constitution Act, 1983, which has .brought into being a tricameral parliamentary system. In some quarters this new constitutional design has been heralded as a departure from the traditional apartheid, and yet in others, see it as a cosmetised entrenchment of exclusive white rule. HISTORICAL BACKGROUND In 1909 the Westminister Parliament enacted the South Africa Act, which British legislation constituted the union of South Africa as a legislative union under the British Crown. Consequently, in 1910 a Westminister style unitary state with four provinces, namely, the Transvaal, Orange Free State, Natal and the Cape, came into being. The constitu- tional head of the Union was the King of England represented by a Governor-General. The ·executive power vested in an executive council or cabinet composed of the leader .. I -4- ,. ,, - 4 - of the majority party prime minister and minister of State appointed from amongst the ranks of parliamentarians. The legislature consisted of an Upper House or a Senate, and a House of Assembly. As a general rule franchise was restricted to adult white males, except in the provinces of Natal and the Cape. The historical reason for this difference is that prior to 1910, black people had no franchise whatsoever in the Transvaal(2) and the Free State(J). Whereas in the Cape Colony, franchise was extended to all regardless of race, subject to certain property qualifications<4>, and in Natal franchise was extended to blacks who satisfied certain • property and other qualifications(S). Accordingly with the formation of the Union, those blacks who were on the voter's roll in the Cape and Natal, needless to say that these were extremely few, continued to remain on the roll after the formation of the Union. After 1910 one legislation after another was introduced to disinfranchise all the blacks who had remained on the voter's roll, so much so that by 1961, with the conversion of the South African state into a republic, all franchise which was accorded to Africans, "Coloureds" and Indians in Natal and the Cape, had been removed. In contrast to this disinfranchisement_proc~ss, by 1961 full and un­ qualified franchise had been extended to both white males and females< 6>, moreover the qualifying age was reduced .. 1 -s- .. •' from 21 years to 18 years of age(7). The aforesaid statutory disinfranchisement of Africans and "Coloureds" in the Cape was not without constitutional and judicial drama. · The constitutional crisis which had its early beginnings in Ndlwana v Hofmeyer N.O. and Others(8j and found fruition in the case of Harris and Others v the Minister of the Interior and Another(9) and of The Minister of Interior v Harris( 10) was by and large caused by the Supreme Court's unfavourable judicial review of certain electoral laws passed by parliament to disinfranchise "Coloureds" and Africans. As a sequel to the crisis, the number and quorum of the Appellate Division judges were increased( 11 ). The size of the senate was also enlarged in order to ensure an easier passage of the aforesaid legislative progr·am directed at disinfranchise­ ment(12>· The 1961 Republican constitution was accordingly the high water mark of a racist constitutional wave, to the absolute exclusion of all South Africas other than white. It came as a triumphant goal of the exponents of white republican supremacy. The fifty years spun over the period 1910 wit the fcrmation of the union up until 1961 with the declaration of a republican government, brought into existence consolidated legislation which was intended to underscore and to be .. I -6- , .; . - 6 - supportive of a system of government based on group identity, race and ethnicity. As it will be discerned from the legislation treated hereunder, a feverish legis­ lative program went underway to ensure an almost total · segregation of South African society. RACE LEGISLATION . One of the cardinal facets of government policy in South Africa, is the demarcation of distinct and separate areas . of occupation and ownership of land by various races • • In 1913 and 1936 respectively two Land Acts(l 3) were passed which prescribed so-called scheduled areas for occupation by African people. Acquisitions of rights or interest in such land by persons o·ther than Africans was and still is prohibited. The total area so demarcated constituted approximately 13% of the total South African land area. It was indeed these parts of South Africa which were later to be converted into so-called Black Homelands. In 1946, and Act(14 ) with by and large the same purpose, was passed in respect of "Coloureds". In 1945 the Black "Urban Areas" Consolidation Act{lS) was passed. This legislation empowered a Minister of Government to decid~ upon urban areas for exclusive occupaeion by Africans. It is indeed this very law which consolidated - 7 - legislation relating to the influx of African people into urban areas and set up the well-known Section 10 qualifi­ cations reinforced with criminal sanction for any African remaining in excess of 72 hours in our urban area unauthorisedly. The Group Areas Act< 16) on the other hand, empowered the government to divide the country or cities into separate areas for exclusive occupation by a particular ethnic or race group. This Act's point of departure is the division ~f the people of South Africa into three basic ethnic groups, being African, Whites and Coloureds. The latter are once more subdivided into As~ans~ Chinese and Cape Malay groups, and so foth.
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