Minister of the Interior and Another v Harris and Others
Jurisdiction | South Africa |
Judge | Centlivres CJ, Greenberg JA, Schreiner JA, Van den Heever JA, and Hoexter JA |
Judgment Date | 13 November 1952 |
Citation | 1952 (4) SA 769 (A) |
Court | Appellate Division |
H Centlivres, C.J.:
In March of this year this Court held in the case of Harris and Others v Minister of the Interior and Another, 1952 (2) SA 428 (AD) (to which case I shall refer as the former case) that the Statute of Westminster 1931 left sec. 152 of the South Africa Act (to which I shall refer as the Constitution) intact and that Act 46 of 1951 was of no force or effect because it had not been passed in conformity with that section. On June 4th this year there was promulgated in the Gazette the High Court of Parliament Act, 35 of 1952. It is common cause that this Act was passed
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bicamerally and not in the manner prescribed by the second proviso to sec. 152 of the Constitution.
Sec. 1 of the High Court of Parliament Act defines 'Act of Parliament' as meaning
'any instrument which has at any time since the eleventh day of December, 1931'
A (i.e. the date on which the Statute of Westminster came into operation)
'been enrolled of record in the office of the Registrar of the Appellate Division of the Supreme Court of South Africa in terms of sec. 67 of the South Africa Act, 1909, or which may at any time hereafter be so enrolled, by virtue of the fact that it purports to be B an Act of Parliament, and which purports to be enacted by the King, the Senate and the House of Assembly, whether it purports to have been passed by a joint sitting of the Senate and the House of Assembly or by the Senate and the House of Assembly in separate sittings, and irrespective of the subject matter thereof.'
Sec. 2 of the Act is as follows:
'Notwithstanding anything to the contrary in any law contained, any C judgment or order of the Appellate Division of the Supreme Court of South Africa, whether given or made before or after the commencement of this Act, whereby the said Appellate Division declared or declares invalid any provision of any Act of Parliament referred to in sec. 1 or whereby it declared or declares that any such Act is not an Act of D the Parliament of the Union, or whereby it refused or refuses to give effect to any provision of such an Act or prohibited or prohibits any person from giving effect to any such provision or in any other manner rendered or renders such a provision inoperative or denied or denies that it has the force of law, shall, subject to the provisions of this Act, be subject to review by the High Court of Parliament (hereinafter E referred to as the Court) which shall be a Court of Law constituted as hereinafter provided.'
The material provisions of sec. 3 are as follows:
'(1) Every senator and every member of the House of Assembly shall be a member of the Court and shall, notwithstanding the dissolution of the Senate or the House of Assembly, as the case may be, continue to be a member of the Court until a new Senate has been constituted F or, as the case may be, a general election of members of the House of Assembly has been held, or until any matter under review by the Court has been disposed of by it, whichever may be the later: Provided that a member of the Court shall vacate his office as a member of the Court if he ceases to be a senator or a member of the House of Assembly otherwise than in consequence of the dissolution of the Senate or the House of Assembly.
G (2) The Governor-General may appoint one of the members of the Court as the President thereof.
(6) A person who becomes a member of the Court after the date upon which a sitting of the Court in pursuance of a notice published under sec. 7 has commenced, shall not be competent to take his seat as a member of the Court in connection with the consideration of H the application for review of the judgment or order in respect of which that sitting has been convened.
(7)(a) No member of the Court shall vote or take part in the discussion of any matter before the Court or a Judicial Committee -
in which he has a direct pecuniary interest; or
which relates to an application for the review of a judgment or order given or made in proceedings to which he was a party otherwise than nomine officii.
(b) No member of the Court shall be disqualified from sitting as a member of the Court or a judicial committee by reason of the fact that he participated in the proceedings of Parliament in his capacity as a senator or a member of
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the House of Assembly during the passing of the Act of Parliament which forms the subject matter of the judgment or order under review.'
Sec. 5 (1) provides that:
'One or other Minister of State shall -
in the case of a judgment or order referred to in sec. 2 given or made prior to the date of commencement of this Act, within six A months of the said date; or
in the case of a judgment or order referred to in sec. 2 given or made after the date of commencement of this Act, within six months of the date of the judgment or order,
lodge with the President of the Court an application for the review by the Court of the said judgment or order . . .'
B The material provisions of sec. 6 are as follows:
'(1) Within thirty days after an application for review has been lodged with him in terms of sec. 5, the President of the Court shall refer it to a committee of the Court (hereinafter referred to as the judicial committee) constituted as hereinafter provided.
C (2) The judicial committee shall consist of ten members of the Court appointed by the President by notice in the Gazette one of whom shall be designated by the President as the chairman thereof.
(3) Four of the members of the judicial committee shall form a quorum.
(5) A decision of the majority of the members present shall be the decision of the judicial committee.
(7)(a) A person who was a party to the proceedings in which the D judgment or order under review was given or made, may lodge with the Secretary of the judicial committee, in the manner prescribed by the rules made under sec. 9, written representations relative to the application for review for the consideration of the committee and the Court.
(b) A party who has in terms of para. (a) lodged written representations with the secretary of the judicial committee, shall E be entitled to appear before the committee either in person or by counsel and may, subject to the rules made under sec. 9, address the committee on any matter relevant to the application for review.
(8) After the judicial committee has considered the relevant record of the proceedings and the reasons given by the judges of the Appellate Division of the Supreme Court and the representations (if F any) of the persons who were the parties to the proceedings in which the judgment or order under review, was given or made, the judicial committee shall make a report to the Court and may make such recommendations on the application for review as it may deem fit.'
Sec. 8 is as follows:
'(1) G The Court may at any sitting convened in terms of sec. 7 and after consideration of the report and the recommendations of the judicial committee on any legal ground by resolution confirm, vary or set aside any judgment or order referred to in sec. 2 or make such other order or such order as to costs as the Court may deem fit.
(2) A decision of the majority of the members present shall be the H decision of the Court.
(3) A decision of the Court shall be final and binding, and shall be executed in every respect as if it were a decision of the Provincial or Local Division of the Supreme Court in which the matter was originally heard.
(4) Any order of costs made by the Court shall be taxed by the Registrar of the Provincial or Local Division of the Supreme Court in which the matter was originally heard as if it were an order of costs made by that Division and shall for all purposes of the taxation thereof be deemed to be an order of that Division.'
A week after the High Court of Parliament Act was promulgated the successful appellants in the former case applied, on notices of
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motion addressed to the respondents in that case, to the Cape Provincial Division for, inter alia, 'an order declaring that Act 35 of 1952 is invalid, null and void and of no legal force and effect'. Each notice of motion was supported by an affidavit in which it was contended
A 'that on a true and proper construction of sec. 152 of the South Africa Act and of 'Act 35 of 1952', the latter measure constitutes an alteration of sec. 152 of the South Africa Act'.
There can be no doubt that the successful appellants in the former case, had, in view of the provisions of secs. 2 and 5 (1) (a) of Act 35 of B 1952, good reason for thinking that the manifest intention of that Act was to provide for a reconsideration by the High Court of Parliament of the issue raised in the former case and, if that Court so decided, for a reversal of the decision in that case. The Provincial Division granted an order in the terms set forth above and the matter now comes before this Court on appeal.
C Sec. 152 of the Constitution enacts that 'Parliament may by law repeal or alter any of the provisions of this Act'. There are two provisos, the first of which is irrelevant. The second proviso, in so far as it is material to this case, enacts that:
'no repeal or alteration of the provisions contained in this section . D . . or in secs. 35 and 137 shall be valid unless the Bill embodying such repeal or alteration shall be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses.'
E It is clear from secs. 35, 137 and 152 of the Constitution that certain rights are conferred on individuals and that these rights cannot be abolished or restricted unless the procedure prescribed by sec. 152 is followed. In construing these sections it is important to bear in mind that these sections give the individual the right to call...
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