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MINISTER OF THE INTERIOR AND ANOTHER v HARRIS AND OTHERS 1952 (4) SA 769

(A)

1952 (4) SA p769

Citation 1952 (4) SA 769 (A)

Court Appellate Division

Judge Centlivres CJ , Greenberg JA , Schreiner JA , Van Den Heever JA , and Hoexter JA

Heard October 27, 1952 ; October 28, 1952 ; October 29, 1952

Judgment November 13, 1952

A

Flynote : Sleutelwoorde

Parliament - High Court of Parliament Act, 35 of 1952 - Invalidity of - Act passed bicamerally

altering sec. 152 of the South Africa Act - High Court of Parliament not a court of law such as

was envisaged by sec. 152. B

Headnote : Kopnota

Act 35 of 1952, which established a High Court of Parliament, consisting of all Senators and

Members of the House of Assembly, with power to review decisions of the Appellate Division of

the Supreme Court of South Africa, alters section 152 of the South Africa Act; accordingly, as it

was passed bicamerally and not in the manner C prescribed by the second proviso to section 152,

it is invalid.

The High Court of Parliament is not a Court of Law such as was envisaged by section 152 of the

South Africa Act; nor, in substance, is it a Court of Law.

The decision in the Cape Provincial Division in Harris and Others v Minister of the Interior and

Another , confirmed. D

[zCIz] Case Information

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Appeal from a decision of the Cape Provincial Division (DE VILLIERS, J.P., NEWTON

THOMPSON, J. and STEYN, J.). The facts appear from the judgment of CENTLIVRES, C.J.

E A. B. Beyers, Q.C . (with him J. T. van Wyk, Q.C . and D. P. de Villiers) , for the appellants:

Appellants' argument proceeds upon the basis that the following principles are correctly laid

down, viz. that sec. 137 of the South Africa Act confers rights and privileges upon individuals;

see Swart, N.O. and Nicol, N.O v de Kock , 1951 (3) SA 589; that sec. 35 similarly confers

rights upon individuals; see Rex v. F Ndobe, 1930 AD 484 ; that the rights and privileges so

conferred are cognisable in Courts of Law of competent jurisdiction and that it is the duty of

Courts of Law to enforce these rights; see Swart, N.O. and Nicol, N.O v de Kock, supra at pp.

600 - 1, 611 - 12; and that sec. G 152 protects rights conferred by secs. 35 and 137 in that that

section prevents Parliament as ordinarily constituted from passing legislation repealing or

altering secs. 35 and 137 and thereby depriving the individuals concerned, of the rights conferred

upon them, sec. 152 providing in this sense a constitutional guarantee in that it prevents H

Parliament acting bicamerally and with a bare majority, from amending these sections. The

powers of Parliament, in the above regard, are to be determined 'by looking to the terms of the

instrument by which, affirmatively, the legislative powers were created and by which,

negatively, they are restricted. If what has been done is legislation, within the general scope of

the affirmative words which give the powers, and if it violates no express condition or restriction

by which that power is limited (in which category would, of course, be included any Act of the

Imperial Parliament at variance with

1952 (4) SA p770

it), it is not for any court of justice to inquire further, or to enlarge constructively those

conditions and restrictions.'; see Rex v Burah , 1878 (3) A.C. 899; see also James v

Commonwealth of Australia , 1936 (2) A.E.R. at p. 1464. In sec. 59 of the South Africa Act, A

Parliament is granted 'full power to make laws for the peace, order and good government of the

Union'. Similar language employed in conferring legislative powers upon Colonial Legislatures

throughout the British Empire has consistently been interpreted by the Courts as conferring upon

those Legislatures original and plenary powers of legislation, B covering 'the entire conceivable

area of political action'; see Rex v McChlery , 1912 AD at p. 220. In the result laws made by

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such Legislatures in the exercise of such powers could never be invalidated on any ground, save

only the transgression of specific limitations imposed upon them by superior British legislation,

including the C instruments by which those Legislatures were created, i.e. Acts of Parliament,

Orders-in-Council or Letters Patent. These limitations are generally referred to as 'limits of

subjects and areas'; see Rex v McChlery , supra at pp. 215 - 6, 219 - 20; Rex v Burah, supra at p.

D 904; Hodge v The Queen , 9 A.C. at p. 132; Powell v Apollo Candle Co. , 10 A.C. at p. 289;

Webb v Outrim , 1907 A.C. at pp. 88 - 9; Edwards v Attorney-General for Canada , 1930 A.C.

136; British Coal Corporation v The King , 1935 A.C. 518; James v Commonwealth of Australia

, 1936 (2) A.E.R. at p. 1464. In the case of the Union Parliament the only E provisions relied

upon as still constituting limitations upon its power to make laws for the peace, order and good

government of the Union, are the so-called 'entrenched clauses', secs. 35, 137 and 152 of the

South Africa Act. As to the repeal and amendment provisions of sec. 152, only the repeal or

amendment of secs. 35, 137 and 152 itself, is entrenched F by the requirement of a special and

abnormal legislative process and there is, accordingly, no limitation upon the repeal or

amendment by Parliament of any other provision of the South Africa Act in the ordinary exercise

of its general power of legislation. Secs. 99 to 116 G dealing with the judicial system of the

Union are entirely unentrenched. This is in marked contrast, for example, with the position in

Australia; see sec. 7 as read with secs. 71, 72 and 128 of the Australian Constitution. The

relevant language was evidently adopted from the American Constitution where also the

Judiciary is protected against the H Legislature; see Art. III, sec. 7, Art. I, sec. 8 and Art. V of the

American Constitution. The provisions of the South Africa Act regarding the judicial system,

referred to supra , have on numerous occasions been amended by the Union Parliament in the

ordinary exercise of its legislative powers, e.g. the abrogation of sec. 106 by Act 16 of 1950, the

amendment of sec. 96 by Act 37 of 1948. As a matter of abstract law changes of a much more

far-reaching character such as the amendment of secs. 100 and 101, could be brought about by

the same process. In Australia and the U.S.A. the corresponding provisions are carefully

1952 (4) SA p771

protected by the provisions in the Constitutions of these countries, referred to supra . In India

radical changes in the Judiciary were effected in respect of matters which evidently did not enjoy

specific protection and the validity of such legislation was upheld by the Privy Council; see

King-Emperor v Benoari Lal Sarma and Others , 1945 (1) A A.E.R. 210 at p. 216 and cf.

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Attorney-General for Ontario v Attorney-General for Canada , 1912 A.C. 571. There can

therefore be no doubt that the Union Parliament, in the ordinary exercise of its legislative

powers, can establish a new Court with jurisdiction superior to that of the Appellate Division.

The framers of the South Africa Act B saw fit to limit the powers of the Union Parliament only

as regards the alteration of the matters of substantive law dealt with in the entrenched clauses and

to leave completely unfettered its powers to alter the adjective or procedural law relating to the

Judicature, save C only for the erstwhile provision in by special leave to the Privey Council. Sec.

152 which is relied upon by by respondents as limiting the powers of Parliment with regard to

the enactment of Act 35 of 1952, deals only, as a matter of substantive law, with the restriction

on the legislative powers of the South African Act and does not restrict the power of Parliment to

cahnge the judicial system. The words of sec. 152 are clear and unambiguous and do not require

or admit of the importation of any E words into it. If any case arises in which an Act of the

Union Parliament is impugned on the ground that it conflicts with sec. 152, 35 or 137 there

nevertheless is a field of legal enquiry which necessarily opens before the Courts, and it is

conceded, for the purpose of argument, that under our system of law the field of enquiry belongs

F properly to the Courts. It is, however, Parliament's function and right to determine by ordinary

legislation what Courts there shall be and which Courts shall have jurisdiction to determine the

questions involved in the predicated enquiry. Harris and Others v Minister of the Interior and

Another , 1952 (2) SA 428 (AD) in no way conflicts with the G foregoing submissions. In that

case this Court posed certain questions lying within the field referred to supra and gave its

decision upon them; see case cited, at pp. 449, 452, 454, 456, as to the questions raised. The

findings of the Court on these questions were based upon interpretations of legal rules not above

doubt and not free from H complexities and it is not inconceivable that another Court might

disagree with them. Any suggestion that by such findings, this Court added anything to the effect

of sec. 152 or gave to it any meaning not to be derived from the words of that section, would

imply that the Court exercised a function which it was never established to perform, namely to

alter the law or create new law which is a legislative, as opposed to a judicial, function. The

creation by Parliament of a Court of Law and the inclusion in the functions of such Court of the

right

1952 (4) SA p772

and duty to reconsider the findings of this Court in Harris and Others v Minister of the Interior

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and Another, supra , or in any other case, can, therefore, never be an alteration of the substantive

law nor can it be said that Parliament has thereby authorised or instructed such a A Court to alter

or ignore any part of the law, more particularly sec. 152. It is conceded that the definition of 'Act

of Parliament' in Act 35 of 1952 includes any statute passed contrary to sec. 152 of the South

Africa Act and that it also includes Act 46 of 1951. It follows therefore from secs. 2 and 8 of Act

35 of 1952 that the High Court of B Parliament is empowered by Parliament as ordinarily

constituted to declare an Act to be valid, notwithstanding the fact that the Appellate Division has

held it to have been passed contrary to sec. 152 of the South Africa Act if such High Court

decides that the judgment of the Appellate Division is wrong in law. For the reasons advanced

supra , the C grant of the said powers to the High Court does not alter the substantive law in any

way, and in particular does not alter sec. 152. The High Court could only treat Act 46 of 1951 as

valid if it came to the conclusion that it did not offend against the entrenched clauses or D that

the entrenched clauses were no longer binding upon Parliament as a result of the passing of the

Statute of Westminster. In coming to either of these conclusions, the High Court would not be

ignoring, repealing or altering the entrenched clauses nor has Act 35 of 1952 such effect nor does

it authorise the High Court to give such effect to its decisions. E Act 35 of 1952 merely

authorises the High Court to review on legal grounds the findings of the Appellate Division on

the issue whether or not a particular measure is rendered invalid by the entrenched clauses

clauses and to give effect in its judgment to its own conclusions of law on such issue in

preference to that of the Appellate Division. Act 35 of F 1952 does not constitute an alteration of

sec. 152 of the South Africa Act in that an aggrieved litigant whose rights under the entrenched

sections have been infringed, has no access to the highest Court. The so-called right of access,

said to have been altered, depended solely upon two considerations of adjective law, viz. the

rules relating to G appeals to such highest Court and the principles of stare decisis which are

principles of Common Law enunciated by the Courts themselves. It was by virtue of these

principles that the Appellate Division could be asked to depart from a previous decision adverse

to the litigant. Such right H of access was, therefore, clearly not derived from the entrenched

clauses themselves but from procedural or adjective law. The entrenched clauses could have

existed at all times, with exactly the same meaning and effect in law, without the existence of

any right or facility of access to the highest Court for the purpose of their enforcement. It follows

that an alteration of such right of access in no way brings about an alteration of the entrenched

clauses. The Constitution imposes no limitations upon Parliament in relation to the creation of a

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Court. The only limitations imposed by the Constitution are contained in the three entrenched

clauses,

1952 (4) SA p773

none of which has any connection with the creation or constitution of Court of Law. A Court

such as the High Court of Parliament can be created in South Africa to decide all issues of law.

Further, there is no provision in the South Africa Act which requires Parliament to act

unicamerally and with a two-thirds majority for the purpose of creating A such a Court. Such a

provision could only possibly be found by implication. There is no room, however, for importing

a provision of that nature into the South Africa Act.

J. T. van Wyk, Q.C . (on the same side, had filed joined heads of argument on behalf of the

second appellant). The Court is not entitled B to read into an Act a concealed intention on the

part of the Legislature. See Dadoo Ltd. and Others v Krugersdorp Municipal Council , 1920 AD

530 . As to the effect of a proviso in a section of an Act see Craies Statute Law.

Graeme Duncan, Q.C . (with him H. Snitcher, Q.C . and D. B. Molteno) , for C the respondents:

The respondents' case is that Parliament as ordinarily constituted, which will be referred to

simply as Parliament, has exceeded its powers in enacting Act 35 of 1952 in that it has altered

sec. 152 of the South Africa Act in the following respects, viz. (a) Parliament has enacted that

the High Court of Parliament may treat as D valid any instrument enrolled in terms of sec. 67 of

the South Africa Act, irrespective as to how it was passed and irrespective of its subject matter,

whereas sec. 152 enacts that every Court and indeed everyone shall treat as invalid a measure

passed bicamerally and dealing with certain matters referred to in sec. 152, (b) Parliament has

enacted E that the High Court, which is not part of the judicial power in the Union, within the

meaning of the South Africa Act, may decide whether or not a measure, alleged to be invalid by

reason of sec. 152, is valid, whereas sec. 152 enacts that that function is to be exercised by the F

judicial power, and (c) Parliament has enacted that, in the event of the High Court deciding that a

measure is valid, everyone, including all Courts of Law, shall treat that measure as valid in the

future, thereby depriving the individuals, whose rights are guaranteed by sec. 152, of the right in

any dispute to challenge the validity of such measure in a G Court of Law, whereas sec. 152

enacts that such individuals shall always have the right to raise the issue of validity when such

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measure is relied upon in the course of a dispute. As to ground (a) ( supra) the definition of 'Act

of Parliament' in sec. 1 of Act 35 of 1952, in terms includes any statute passed contrary to sec.

152 of the South Africa Act H and more particularly Act 46 of 1951 declared by this Court to be

invalid. From secs. 2 and 8 of Act 35 of 1952 it follows that Parliament has enacted that the High

Court of Parliament may declare an Act 'as defined' to be valid or treat such Act as valid

notwithstanding the fact that the Act has been passed contrary to sec. 152 of the South Africa

Act. More particularly. Parliament has enacted that such High Court may declare or treat as

valid, Act 46 of 1951 which altered sec. 35 of the South Africa

1952 (4) SA p774

Act and which was not passed in the manner laid down in sec. 152. The validity of Act 35 of

1952 falls to be determined upon the basis that sec. 152 of the South Africa Act is law. This was

the law on the 4th June, 1952, when Act 35 of 1952 was enacted and by that law everyone in A

the Union, including all Courts of Law and Parliament, was bound; see Harris and Others v

Minister of the Interior and Another , 1952 (2) SA 428. Such being the law when Act 35 of 1952

was passed, it was not competent for Parliament to enact that a Bill passed contrary to sec. 152 of

the South Africa Act should be treated as valid, for such a B declaration of validity would be to

alter sec. 152 which expressly enacts that such a bill shall be invalid. Nor was it competent for

Parliament to enact that any person whatever, including any Court of Law, might treat as valid a

measure which sec. 152 enacts shall be treated as invalid. Sec. 152 is an imperative injunction

upon everyone, C including all Courts of Law, to regard a statute as invalid, if it has not been

passed in the manner laid down in sec. 152. To enact even that a Court of Law may treat such a

statute as valid is to alter sec. 152. The fact that the High Court is given power to set aside a

decision D of the Appellate Division on any legal ground is no answer, because Parliament

cannot lawfully empower anyone to treat as valid on any ground whatever a statute not passed in

accordance with sec. 152 for so to do is to alter sec. 152. The fact that on the 4th June, 1952, a

Court might have interpreted the law as being that, upon a true construction E of the Statute of

Westminster, the proviso to sec. 152 had been repealed and that therefore an Act not passed in

the manner laid down in sec. 152 would be valid, is irrelevant. For the law on that date was that

the proviso to sec. 152 had not been repealed and consequently such an Act would be invalid.

That law was binding upon Parliament. Thus, F assuming that Parliament can, by statute, create a

Court of Law above the Supreme Court of South Africa, it cannot lawfully include in such

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statute any provision empowering such Court to declare or treat as valid an Act not passed in the

manner laid down in sec. 152. Act 35 of 1952 as G containing such provisions, is, on this ground

alone, ultra vires and any decision by the High Court of Parliament set up under that Act is a

nullity. As to the ground ( b) supra , upon which the validity of Act 35 of 1952 is challenged, sec.

152 of the South Africa Act is a limitation upon the powers of Parliament and is a constitutional

guarantee in H favour of individuals. The section therefore confers a right upon any person

affected by an infringement of that guarantee to raise that issue before, and have that issue

determined by, the judicial power in the Union; see Harris and Others v Minister of the Interior

and Another , 1952 (2) SA at pp. 456, 470; Swart, N.O. and Nicol, N.O v de Kock and Garner ,

1951 (3) SA at pp. 601 - 2, 611, 623. By 'judicial power' is meant the power vested in Courts of

Law established from time to time in order to settle disputes, because it is in the course of such

disputes that it becomes necessary to determine whether an enactment relied

1952 (4) SA p775

upon as having the force of law is valid or invalid. In the case of any constitution, whether

unitary or federal, which contains any constitutional guarantee to any individual, it necessarily

follows that the established Courts of Justice must have the power and the duty to decide whether

or not the guarantee has been infringed by the members of A a legislative body, for when an

infringement is alleged by an individual or some organ in the State, the members of that

legislative body cannot themselves resolve the dispute, because if they can, then the constitution

contains no guarantee. The established Courts of Justice, in the course of adjudicating upon a

dispute, when a question B arises whether the prescribed limits of a constitution have been

exceeded, must of necessity determine that question; see James v Commonwealth of Australia ,

1936 (2) A.E.R. at p. 1464. Thus Parliament could not lawfully enact that a person or body of

persons not part of the judicial power in the Union, might decide whether or not a measure C

held to be invalid by reason of sec. 152, was valid. That this was appreciated by Parliament is

shown by the express provision in sec. 2 of Act 35 of 1952 that the High Court 'shall be a Court

of Law'. The High Court of Parliament is, in no sense, part of the judicial power in the D Union

within the meaning of sec. 152 of the South Africa Act because (a) the members of the so-called

Court may be the legislators themselves who, in law, may have acted contrary to the South

Africa Act in defiance of the rights of an individual safeguarded by that Act; see sec. 3 of Act 35

of 1952; (b) the substance of the Act of 1952 is that the members E of both Houses of Parliament

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sitting together may, by a resolution of the majority of members present, decide that what may

have been invalidly done by such members, in defiance of the South Africa Act, is nevertheless

valid; (c) a Statute which is ultra vires is not the Act of the Legislature, but of the individuals

who purported to enact the F Statute; see Gore-Brown, Companies (39th ed., p. 429); Bryce, The

American Commonwealth (3rd ed., Vol. 1, p. 245); (d) it can never have been the intention of the

Legislature in enacting the South Africa Act that the individuals who may have acted illegally

and beyond their G powers should themselves decide whether or not their action was illegal for

such an interpretation of sec. 152 would be manifestly absurd and moreover would result in sec.

152 containing no constitutional guarantee at all; (e) the so-called Court is not a body which

settles disputes between litigants but is obliged or at least empowered to decide upon H the

correctness of a decision given by the established Courts of Justice, even though no one, other

than the members of the Legislature whom a Court has found to have acted illegally, is

dissatisfied with such decision and even though neither of the litigants asks for relief; see secs. 2

and 5 of Act 35 of 1952. The judicial power, i.e. the power which Courts possess to decide

disputes as to a litigant's rights, only exists where a dispute between parties is before a Court. It

is only in the course of settling such disputes that the power to decide upon the validity of a

purported

1952 (4) SA p776

CENTLIVRES CJ

Statute arises. A body set up to give decisions upon a matter which has ceased to be in dispute

between litigants does not exercise the judicial power implicit in the constitutional guarantee

contained in sec. 152; see Shell Company of Australia v Federal Commissioner , 144 L.T.R. at p.

A 427; Willoughby, Constitution of the United States (pp. 20, 24); Brown v Leyds , 4 O.R. at p.

27. Stripped of features giving the High Court of Parliament the appearance of an established

Court of Justice within the meaning of the South Africa Act, the so-called Court is merely a body

of B persons authorised to resolve a conflict between the Court, acting pursuant to the powers

conferred upon it by sec. 152, and the members of Parliament, such conflict having arisen only

by reason of the refusal of one organ in the State to accept the decision of another organ, to

whom the power of decision is entrusted under the Constitution of the Union. C Such a body is

no part of the judicial power in the Union in whom the South Africa Act vests the power to

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decide whether or not the members of the Legislature have exceeded their powers under that Act.

Upon this ground also Act 35 of 1952 is ultra vires . As to ground ( c) supra , upon which the

validity of Act 35 of 1952 is attacked, in view of D the fact that the Act establishes a body to

which a Minister of State alone has access, it follows that once that body has decided that a

certain statute is valid, that decision will be final and binding in the future, not only on the

particular litigants involved in the dispute E before the Appellate Division but upon all Courts

and all persons whatever; see secs. 2, 5 and 8 of Act 35 of 1952; de Waal, N.O v North Bay

Canning Co., Ltd. , 1921 AD at p. 533; Collett v Priest , 1931 AD at 297; Harris and Others v

Minister of the Interior and Another, supra at p. 452. The declaration of invalidity in sec. 152,

conferring a right F upon any individual affected by the purported Statute to challenge its

validity on the grounds set out in sec. 152, cannot be destroyed by Parliament, for to do so would

be to take away such right, thereby altering sec. 152.

Beyers, Q.C. , in reply.

G Cur. adv. vult .

Postea (November 13th).

[zJDz] Judgment

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

1952 (4) SA p777

CENTLIVRES CJ

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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

12

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 -

(i) in which he has a direct pecuniary interest; or

(ii) 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

1952 (4) SA p778

CENTLIVRES CJ

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 -

(a) 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

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(b) 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:

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G '(1) 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

1952 (4) SA p779

CENTLIVRES CJ

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.

15

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 on the judicial power to help him resist any

legislative or executive action F which offends against these sections or, to put it in another way,

these sections contain constitutional guarantees creating rights in individuals, the duty of the

Courts, where the question arises in litigation, being to ensure that the protection of the guarantee

is made G effective, unless and until it is modified by legislation in such a form as under the

Constitution can validly effect such modification. See Swart, N.O. and Nicol, N.O v Garner and

Others , 1951 (3) SA 589 at pp. 602 and 611 (A.D.). See also James v Commonwealth of

Australia , 1936 A.C. 578 at p. 613, where LORD WRIGHT in delivering the judgment of H the

Privy Council quoted with approval the following passage from the judgment of LORD

SELBORNE in The Queen v Burah , 3 A.C. 889 at p. 904:

'The established Courts of Justice when a question arises (in regard to a Constitution) whether

the prescribed limits have been exceeded, must of necessity determine that question.'

The method employed by sec. 152 to entrench the rights conferred by secs. 35 and 137 is the

sanction of invalidity. This can only mean invalidity in law as determined by Courts of Law

which consider

1952 (4) SA p780

CENTLIVRES CJ

16

issues raised by parties who bring their disputes before such courts. A constitution might provide

for an entrenchment which cannot be enforced by Courts of Law (e.g. the Swiss Constitution, see

Bryce's American Commonwealth , 3rd ed., p. 260) but this is not what our Constitution A

prescribes. In our Constitution the entrenchment is effected by applying the sanction of legal

invalidity - a sanction which can only be applied by Courts of Law. Those Courts cannot,

therefore, shirk the duty imposed on them of coming to the aid of individuals whose rights

conferred by the sections referred to have been infringed or who have B reasonable grounds for

thinking that their rights will be interfered with. It does not, of course, follow from what I have

said that Parliament sitting bicamerally is not entitled to amend those sections of the Constitution

which deal with the Judiciary, but it cannot in my opinion bicamerally pass any Act, the effect of

which would C be to render nugatory the rights entrenched in the Constitution.

It will be noticed how carefully sec. 152 is worded. It was realised that it was necessary to

entrench sec. 152 itself in order to make it clear beyond any doubt that Parliament sitting

bicamerally should not D have the power to repeal the provisos to sec. 152 and thus to enable

itself, sitting bicamerally, to repeal or amend secs. 35 and 137. This in itself emphasises the

intention to protect to the utmost the rights entrenched by sec. 152.

Mr. Beyers , who appeared on behalf of the Minister, laid great stress on E the distinction

between substantive and adjective or procedural law. He contended that the framers of the

Constitution saw fit to limit the powers of Parliament only as regards the alteration of matters of

substantive law and to leave completely unfettered its powers to alter the adjective law relating

to the judicature in the Union, the F judicature being in no way entrenched. On this foundation

he contended that either before or after the Statute of Westminster Parliament sitting bicamerally

could validly have passed an Act providing that no Court of Law in the Union should have

jurisdiction to adjudicate upon the question whether any Act had been passed in conformity with

the G provisions of sec. 152 of the Constitution. Such an Act would, he contended, have been

valid, provided that it did not repeal the provisos to sec. 152. This is a startling proposition. As I

understand Mr. Beyers' argument the substantive right would, in the event of such an H Act

having been passed, remain intact but there would be no adjective or procedural law whereby it

could be enforced: in other words the individual concerned whose right was guaranteed by the

17

Constitution would be left in the position of possessing a right which would be of no value

whatsoever. To call the rights entrenched in the Constitution constitutional guarantees and at the

same time to deny to the holders of those rights any remedy in law would be to reduce the

safeguards enshrined in sec. 152 to nothing. There can to my mind be no doubt that the authors

of the Constitution intended that those rights should be enforceable by the Courts of

1952 (4) SA p781

CENTLIVRES CJ

Law. They could never have intended to confer a right without a remedy. The remedy is, indeed,

part and parcel of the right. Ubi jus, ibi remedium.

If authority is needed for what I have said, I refer to the following cases. In Ashby v White , 92

E.R. 126 at p. 136, HOLT, C.J., said:

A 'If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a

remedy, if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine

a right without a remedy; for want of right and want of remedy are reciprocal.'

In Dixon v Harrison , 124 E.R. 958 at p. 964, it was stated that the greatest absurdity imaginable

in law is:

B 'that a man hath a right to a thing for which the law gives him no remedy; which is in truth as

great an absurdity, as to say, the having of right, in law, and having no right, are in effect the

same.'

There is, in my opinion, no warrant for the use sought to be made by Mr. C Beyers of the

distinction between substantive law and adjective or procedural law. That distinction or basis of

classification is indeed not a very clear one. Salmond in his Jurisprudence (3rd ed. at pp. 443 and

445) says:

'It is no easy task to state with precision the exact nature of the distinction between substantive

law and the law of procedure . . . So D far as the administration of justice is concerned with the

application of remedies to violated rights, we may say that the substantive law defines the

18

remedy and the right, while the law of procedure defines the modes and conditions of the

application of the one to the other.'

A writer in the Harvard Law Review (Vol. 45 at p. 643) says much the same as Salmond:

E 'no one has ever been able to formulate any test which will distinguish between procedural and

substantive law in any particular case. Substantive law remains the 'law' which we enforce,

procedure the practical rules by which we enforce it.'

The case of The Colonial Sugar Refining Company Ltd v Irving , 1905 F A.C. 369 at p. 372,

provides an interesting instance of what the Privy Council regarded as substantive law. In that

case it appeared that, during the pendency of an action, an Act of Parliament was passed

abolishing the right of appeal to the Privy Council and substituting a right of appeal to the High

Court of Australia. The Privy Council held G that this was not a mere matter of procedure and

that the appellant, who had issued his summons before the Act came into operation, retained his

right to appeal to the Privy Council.

But, whether any useful distinction can or cannot really be drawn H between substantive law and

adjective or procedural law, the contention that whatever is describable as adjective law in this

connection can be freely altered by Parliament sitting bicamerally, regardless of its effects on the

rights guaranteed by sec. 152 of the Constitution, is, in my view, insupportable.

The ground has now been cleared for a consideration of the question whether the High Court of

Parliament Act infringes the provisions of sec. 152 of the Constitution; if it does, then it cannot

stand. If the High Court of Parliament can properly be described

1952 (4) SA p782

CENTLIVRES CJ

as a Court of Law, then it is a Court which differs in material respects from such Courts of Law

as were envisaged by sec. 152 of the Constitution. I do not consider it necessary for the purposes

of this judgment to point out all the differences: it will be sufficient to A point out some of them.

19

Members of the kind of Courts of Law envisaged by sec. 152 do not pass legislation relating to

the substantive rights of individuals and they are, therefore, never called upon in their capacity as

judges to discharge the invidious task of deciding whether they erred in thinking that they had

the power to pass legislation, the B validity of which is questioned. The High Court of

Parliament is composed of members of Parliament who in their capacity as legislators may have

passed what purports to be an Act of Parliament and in their capacity as judges they are called

upon to decide whether the instrument which they passed is or is not a valid Act of Parliament. It

is C therefore an entirely different type of Court from what was envisaged by sec. 152 of the

Constitution when it entrusted to the Courts of Law the duty of enforcing the rights safeguarded

by that section.

Furthermore, individuals, who complain that an Act of Parliament, passed D bicamerally, which

deprives them of their rights entrenched by sec. 152 of the Constitution, is invalid, have access to

all Courts of Law, including the highest Court. Under Act 35 of 1952 they have no right to bring

under review to the High Court of Parliament any decision of the Appellate Division. They only

person who has that right is a Minister of E State, and under sec. 5 (1) (a) he is compelled to

approach the Court when the Appellate Division declares an Act invalid. If the High Court of

Parliament were to declare valid an Act of Parliament on the ground that the Statute of

Westminster has destroyed the entrenchment of rights F effected by sec. 152 of the Constitution,

the decision of that Court would, on the ground that it is the highest Court in the land, be binding

on all Courts of Law in the Union. The result would be that it would be utterly useless for any

individual to challenge in any Court of Law the validity of an Act of Parliament on the ground

that it was not G passed in conformity with the procedure prescribed by sec. 152, for those

Courts would be bound to follow the decision of the High Court of Parliament and declare the

Act valid. He must, therefore, get an adverse decision from the Appellate Division and there the

matter must end, for H he cannot bring the matter before the High Court of Parliament. The

practical effect of a decision of the High Court of Parliament on the ground I have indicated

would be the same as legislation repealing the safeguards contained in sec. 152 of the

Constitution. A decision on the same lines by the Appellate Division has not that effect, as it is

bound to consider any reasons that may be advanced to show that a previous decision given by it

is wrong and, if satisfied that that decision is wrong, it may refuse to follow it.

20

Consequently it seems to me that both in respect of its composition and the effect of its decision

to declare an Act of Parliament

1952 (4) SA p783

CENTLIVRES CJ

valid the High Court of Parliament differs in material respects from a Court of Law such as was

envisaged by sec. 152 of the Constitution. The differences are so material that it may be held

that, although Parliament sitting bicamerally may enact that there shall be a Court of Appeal,

within the contemplation of that section, to hear appeals from A the Appellate Division in

matters in which the validity of an Act of Parliament is in issue, the fact that the High Court of

Parliament is not such a Court is sufficient to justify the view that Act 35 of 1952 was passed in

contravention of sec. 152 of the Constitution. A better approach, however, to the problem before

the Court is to ascertain, by B looking at the substance and not merely the form of the Act,

whether the High Court of Parliament is in fact a Court of Law. Were this Court only to look at

the form of legislation, constitutional guarantees might be of very little value.

C The Courts are bound by a definition in a legislative enactment in so far as that enactment falls

within the powers of the Legislature, but when the question is whether or not those powers have

been exceeded, the definition itself is in issue along with the whole enactment, and the enactment

must be judged by its substance and not by the nomenclature it uses.

D In form the High Court of Parliament is a 'court of law'; in form there is a 'judicial committee';

and in form the High Court of Parliament may on 'legal grounds' 'confirm, vary or set aside' the

judgment of this Court in the former case. Now let us look at the E substance of the matter. The

High Court of Parliament consists of 'every member of the House of Assembly' (sec. 3 (1)), the

President of that Court must be either a Senator or member of the House of Assembly (sec. 3

(2)); 'no member of the Court is disqualified from sitting as a member of the Court or a judicial

committee by reason of the fact that F he participated in the proceedings of Parliament in his

capacity as a Senator or member of 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. 3 (7) (

21

b)); the 'judicial committee' consists only G of members of the Court who must therefore be

members of Parliament (sec. 6 (2)); and the High Court of Parliament 'by resolution' may

confirm, vary or set aside the judgment of this Court in the former case. There is no provision in

the Act for oral argument before the High Court itself, the only provision being for oral argument

before the H 'judicial committee' (sec. 6 (7)). Yet it is the members of the High Court who

eventually by resolution give the judgment. The only person who can bring a case on review

before the High Court is a Minister of State. No legal qualifications are required for membership

of the High Court of Parliament. See secs. 26 and 44 of the Constitution. From this short recital

everyone versed in the law will realise the essential differences between the 'High Court of

Parliament' and Courts of Law properly so called whose duty it is to enforce and protect the

constitutional

1952 (4) SA p784

CENTLIVRES CJ

guarantees. Courts of Law do not delegate to a 'judicial committee' (the name which the Act

gives to what is in essence a select committee of both Houses of Parliament) the task of

ascertaining what the law is and then 'by resolution' give its judgment. This procedure is

Parliamentary A and unknown to Courts of Law. The persons, who in their capacity as

legislators passed Act 46 of 1951, are empowered to decide in another capacity whether that Act

was validly passed - a provision which is, as I have already pointed out, foreign to Courts of

Law. Moreover Courts B of Law exist to decide disputes between parties, yet under the High

Court of Parliament Act a Minister of State, although he is not a party to the dispute, and

although the parties themselves may not wish to carry the matter any further, is compelled to

bring on review a judgment of the Appellate Division declaring an Act of Parliament invalid. C

Furthermore, as I have also pointed out above, the effect of a decision of the High Court of

Parliament may be the same as legislation repealing the safeguards contained in sec. 152 of the

Constitution, whereas a decision of a Court of Law has not that effect.

D When, therefore, one looks at the substance of the matter, the so-called 'High Court of

Parliament' is not a Court of Law but is simply Parliament functioning under another name. The

mere fact that Act 35 of 1952 states that the High Court of Parliament may 'on any legal ground'

22

confirm, vary or set aside any judgment of the Appellate Division E declaring an Act invalid

does not, in my opinion, carry the matter any further. All that those words mean in the context of

the Act read as a whole is that Parliament sitting unicamerally may, by a bare majority, resolve

on what it thinks to be a legal ground to confirm, vary or set aside any such judgment of the

Appellate Division: it is still F Parliament that is functioning and not a Court of Law. The result

is exactly the same as if Parliament had sat unicamerally in passing Act 46 of 1951, had passed

that Act by a majority falling short of the prescribed two-thirds majority and had, after hearing

counsel in select G committee, inserted therein a section declaring that on legal grounds the Act

was valid. To hold that such a declaration would be binding on Courts of Law would render

nugatory the safeguards enshrined in sec. 152 of the Constitution. In the hypothetical case I have

given it would be beyond doubt that the body that functioned was Parliament and not a H Court

of Law. In the case before us Parliament has described itself as a Court of Law but such a

description does not alter the fact that the High Court of Parliament is Parliament functioning

under Act 35 of 1952 and not a Court of Law. In my view Parliament cannot by passing an Act

giving itself the name of a Court of Law come to any decision which will have the effect of

destroying the entrenched provisions of sec. 152 of the Constitution.

DE VILLIERS, C.J., in Rex v Ndobe , 1930 AD 484 at p. 493 said that

1952 (4) SA p785

GREENBERG JA

'under sec. 59 of the South Africa Act, Parliament has full powers to make laws for the peace,

order and good government of the Union but that section cannot be invoked to enlarge its powers

under sec. 35.'

The same observation applies with equal force in respect of sec. 152.

For all these reasons it seems to me that Act 35 of 1952 offends against sec. 152 of the

Constitution as properly interpreted. It follows that A the order made by the Provincial Division

was correct. The appeals are dismissed with costs.

23

GREENBERG, J.A.: If the decision in Harris & Others v Minister of the Interior and Another ,

1952 (2) SA 428 (AD) , must be regarded as B correctly laying down the law, Parliament is not

entitled to disregard the provisions of sec. 152 of the South Africa Act and, by ordinary

legislation, to pass an Act such as Act 46 of 1951. By ordinary legislation I mean legislation not

passed in the manner prescribed by C sec. 152. But the correctness of this decision is not

unassailable. It can be judicially attacked in any proceedings in the same way as the correctness

of the Ndhlwana decision was attacked in Harris's case. I assume that it is also open to

Parliament, by ordinary legislation, to establish a tribunal with jurisdiction to review the

decisions of the Appellate Division, whether it be a general jurisdiction or a D jurisdiction

limited to certain questions. But the function of a tribunal which is empowered, as the High

Court of Parliament is empowered, to enquire into the question whether an Act is in breach of the

safeguards under sec. 152, or whether that section is still E operative, must be to enquire into the

correctness in law of the decision in Harris's case or any other case dealing with the same subject

matter which comes before it on review. Its function, in other words, in regard to any such

decision, must be the same as would be that F of this Court if the latter were now asked to

reconsider the correctness of the decision in Harris's case, though such tribunal would not be

hampered, in coming to a conclusion, by the same considerations based on the principle of stare

decisis as this Court might be. Nevertheless, its function in enquiring what the law is would be

the G same as that of this Court. Moreover, in order that it should be performing judicial and not

legislative functions its decisions must have the effect of judicial and not of legislative

pronouncements. By this I mean that the law as pronounced by the tribunal in question must

derive its force, not from the fact that it has been so pronounced, but H because it is in truth the

law. The difference between these two positions is that in the former the state of the law as

pronounced must be regarded as immutable, except by legislation, whereas in the latter, subject

to the rule of stare decisis , its correctness can always be questioned in the same Court of Law.

The application of what I have said to the question in issue in this case is that under sec. 152 the

citizen is entitled to have recourse to Courts of Law for a decision as to whether any legislation is

invalid because of that section, and the question of

1952 (4) SA p786

GREENBERG JA

24

invalidity depends on whether the impugned legislation transgresses the law.

The issue therefore is whether the High Court of Parliament Act in truth establishes a tribunal

whose function it is to ascertain and decide A whether the law in regard to sec. 152 has been

correctly laid down in Harris's case, and in considering this issue it must be borne in mind that

when the authors of the South Africa Act provided the safeguard, implicit in sec. 152, of

recourse to Courts of Law, they must have had in mind the elements of the judicial system, in

existence at the time of B Union, and incorporated in the South Africa Act. The high standard of

impartiality necessary for a judicial determination of questions both of fact and of law is a

corner-stone of that system and is preserved by the undoubted principle that no one should be a

judge in his own cause and that the litigant can ensure the preservation of this principle by C the

right of recusation. The constitution of the High Court of Parliament which appoints as its judges

the legislators who themselves have been responsible for the passing of the legislation, the

validity of which is the question in issue before that Court, and the denial to D the litigant of a

right of recusation on this ground, accord ill with the fundamental requirement of judicial

impartiality.

The next criticism of the tribunal created by the High Court of Parliament Act is based on the

qualification of the judges, or rather on E the absence of qualification. I have already said that

the function of any appellate tribunal created by the Legislature must be to enquire into the

correctness in law in the first instance of the decision of this Court in Harris's case and thereafter,

if the need arises, of any other decision of this Court on the question of the validity of an Act F

of Parliament as defined in the High Court of Parliament Act. This being so, it is indeed

surprising that no legal qualifications whatsoever are required in the personnel of the tribunal

whose function it is to decide on the correctness in law of the Court which, at the time of the

passing of the High Court of Parliament Act, had been G constituted by the Legislature as the

final arbiter in the Union on all questions of law.

Furthermore, if the Legislature, in passing the Act, had been actuated by what in my opinion is

the only permissible aim, viz.: to create a tribunal whose function was to decide what is the

correct law on the H question of the validity of Acts of Parliament, it would have been expected

25

that, in its desire for a correct decision on this question, its doubts as to the correctness of the

decisions of this Court would not have been limited to cases where this Court has declared an

Act invalid. Mr. Beyers' defence of this aspect of the Act, viz.: that it is only when an Act of

Parliament is declared invalid that the matter is one of constitutional importance, does not appear

to me to meet the difficulty I am now propounding.

It is no answer to these difficulties to say that Parliament, by ordinary legislation, would be

entitled to appoint courts or tribunals

1952 (4) SA p787

SCHREINER JA

for specific purposes, the constitution of which disregarded these criticisms; we are here dealing

with a tribunal whose constitution must not trespass upon the safeguards incorporated in sec. 152

and whose function is subject to the limitation I have mentioned.

A The last point of criticism that I need mention is based on the effect of a decision by the High

Court of Parliament. I need not elaborate this as I agree with what is said by my Brother

HOEXTER on this point. It is sufficient to say that the effect of such a decision is that it is

binding and that it has this effect not because the law that it lays B down is necessarily right, but

because by the High Court of Parliament Act it has been given this effect. It is thus a legislative,

not a judicial pronouncement; for these reasons the tribunal is not such an appellate tribunal as,

in my opinion, it is competent to create by ordinary legislation for the purpose of deciding

whether, because of C sec. 152, an Act of Parliament is invalid.

I have given the grounds which appear to me to be sufficient to dispose of the case but wish to

make it clear that I am in no disagreement with anything in the reasons prepared by the CHIEF

JUSTICE which I have had the opportunity of reading.

D I agree that the appeals should be dismissed with costs.

26

SCHREINER, J.A.: I agree that this appeal must be dismissed, and in general I agree with the

reasons of the CHIEF JUSTICE for arriving at E this conclusion. The sanction of invalidity

unquestionably requires a tribunal or hierarchy of tribunals for its enforcement. For present

purposes the most important tribunal clearly is that of final appeal. To protect the entrenched

sections by the sanction of invalidity the highest tribunal must be a Court of Law or, in other

words, a Court F exercising judicial power. The Constitution makes no express provision for the

determination of questions of validity or invalidity and must therefore be taken to have left such

determination to the Courts of Law of the land.

It is not easy to draw a clear line of demarcation between tribunals G which are and those which

are not Courts of Law. The latter expression may be used with different shades of meaning. That

there may be a meaning of the word 'court' which is describable as 'strict' derives support from

what was said by LORD SANKEY in giving the judgment of the Privy Council in Shell

Company of Australia Ltd v Federal Commissioner H of Taxation , 1931 A.C. 275 at p. 296. The

LORD CHANCELLOR said:

'The authorities are clear to show that there are tribunals with many of the trappings of a Court

which, nevertheless, are not Courts in the strict sense of exercising judicial power . . . In that

connection it may be useful to enumerate some negative propositions on this subject: 1. A

tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor

because it hears witnesses on oath. 3. Nor because two or more contending parties appear before

it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of

subjects. 5. Nor because there is an appeal

1952 (4) SA p788

SCHREINER JA

to a Court. 6. Nor because it is a body to which a matter is referred by another body.'

It must be observed that the LORD CHANCELLOR does not provide any positive definition of a

Court 'in the strict sense', but I take it that what is intended is what is ordinarily called a Court of

Law.

27

A Although the line between such Courts and other tribunals is not easy to define this does not,

of course, mean that there must always be serious difficulty in deciding whether any particular

tribunal that has been given the title of Court or Court of Law should or should not be B held to

be such. And indeed I do not in the least degree dissent from the view that, assuming that one has

to decide whether the High Court of Parliament as set up by Act 35 of 1952 is or is not a Court of

Law, the proper conclusion is that it is not, but is only Parliament C wearing some of the

trappings of a Court. If that is so, and Parliament has simply itself assumed the role of watchman

over its own actions, Act 35 of 1952 constitutes an encroachment on the judicial power, which in

the narrow field covered by the provisos to sec. 152 is fully separate from the legislative power.

D But sec. 152 does not use the expression 'Court of Law' and it seems to me to be unnecessary

to proceed on the lines that the High Court of Parliament, despite the fact that it is declared in

Act 35 of 1952 to be a Court of Law, is not really such a Court. Unnecessary and to some E

extent unsatisfactory; for it would be unfortunate if it were thought an Act passed bicamerally

would necessarily be valid if it created, for the purpose of deciding questions of validity in

relation to sec. 152 and the Statute of Westminster, a tribunal to which the title of Court, in the

strict sense, or Court of Law could not be denied. Supposing, for F example, an Act were passed

bicamerally giving the magistrate's court of any named South African town or city jurisdiction to

hear, without further appeal, appeals from the Appellate Division of the Supreme Court in

matters involving the validity or invalidity of Acts of Parliament. G It would be difficult to deny

to such a magistrate's court the name of Court of Law, assuming that it preserved the normal

features of magistrates' courts. Nevertheless it might very well be (I need put it no higher) that

the Act in question would be held to be invalid because it would involve a radical departure from

the judicial hierarchy set up in the Constitution and a grave impairment of the protective system

implicit in sec. 152.

H Other tribunals can readily be conceived which would ordinarily be called Courts of Law but

to which it is difficult to believe that Parliament could effectively entrust by bicameral legislation

the power to declare the validity or invalidity of Acts of Parliament.

An entirely sufficient and convincing reason, in my view, for holding that the High Court of

28

Parliament Act is invalid as altering sec. 152 without being passed in accordance with the second

proviso to that section, is that it interferes with or departs from

1952 (4) SA p789

VAN DEN HEEVER JA

the protective judicial system implicit in sec. 152. The system is the Supreme Court of South

Africa, based as it is on the Supreme Courts of the four colonies at the time of Union, with the

Appellate Division set up at the apex. The Superior Courts of South Africa have at least for many

generations had characteristics which, rooted in the world's A experience, are calculated to

ensure, within the limits of human frailty, the efficient and honest administration of justice

according to law. Our Courts are manned by full-time Judges trained in the law, who are outside

party politics and have no personal interest in the cases which come before them, whose tenure

of office and emoluments are B protected by law and whose independence is a major source of

the security and well-being of the State. The jurisdiction of these Courts is general as to subject

matter, they are available to all disputants who claim that they have legal rights to maintain and

before them all interested parties are entitled to present their evidence and their C arguments. In

every one of these respects as appears from the judgment of the CHIEF JUSTICE, the High

Court of Parliament is markedly different from the Superior Courts of Law known in South

Africa before and after Union. And each one of the differences operates in the direction of D

weakening the effectiveness of the judicial protection inherent in sec. 152. In their sum they

result in a tribunal wholly unlike what was contemplated by the framers of our Constitution and

out of all comparison weaker as a protection against invasions of its guarantees. The High Court

of Parliament Act which sets up this tribunal thus E infringes sec. 152 and is invalid.

VAN DEN HEEVER, J.A.: The issues raised in this appeal are set out in the judgment of the

CHIEF JUSTICE. To my mind the conclusion at which he has arrived is inescapable, but, as

somewhat different reasons have F impelled me to it, I think I should state them.

It is advisable briefly to summarise the rights with which we are concerned. Sec. 35 of the South

Africa Act provides that parliament may by law prescribe the qualifications which shall be

29

necessary to entitle G persons to vote at the election of members of the House of Assembly but

that

'no such law shall disqualify any person . . . in the Province of the Cape of Good Hope who,

under the laws existing in the Colony of the Cape of Good Hope at the establishment of the

Union, is or may become capable of being registered in the Province of the Cape of Good Hope

by reason of his race or colour only',

H unless the bill be passed by a two-thirds majority at a joint session of Both Houses of

Parliament. Sec. 137 provides that the two official languages shall be treated on a footing of

equality.

Sec. 152 in so far as it is relevant provides:

'Parliament may by law repeal or alter any provision of this Act . . . Provided further that no

repeal or alteration of the provisions contained in this section, 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

1952 (4) SA p790

VAN DEN HEEVER JA

together, and at the third reading be agreed to by not less than two-thirds of the total number of

members of both Houses . . .'

For convenience I use the expression 'Cape franchise' to denote the principle that Parliament

functioning as ordinarily constituted, that is A the Queen (or her representative) and the two

Houses acting separately and successively, has not the power to pass laws which disqualify on

the grounds of race or colour only any person who according to the laws existing in the Cape

Province at Union was or could become capable of being registered as a voter in that Province.

B The Cape franchise is doubly entrenched. First it is entrenched in sec. 35 of the South Africa

Act, the very section which authorises Parliament to make laws regulating the franchise. Then it

was again entrenched in sec. 152. The object is plain. Since the widest powers of C constitutional

30

amendment were given in sec. 152, a brake was put upon their exercise in so far as they could

affect the Cape franchise. Subject to Imperial checks which then existed, Parliament could write

and rewrite its own mandate. As ordinarily constituted, however, Parliament cannot expand its

mandate by deleting the inhibition of its D powers in relation to the Cape franchise. It stands to

reason that it cannot empower another to do what it cannot do itself. One must keep in mind that

this inhibition is in restraint of power and not a regulation of method. No legislative organ can

perform an act of levitation and lift itself above its own powers by the bootstraps of method.

E Before us the appellants did not concede the correctness of the decision of this Court in Harris

and Others v Minister of the Interior and Another , 1952 (2) SA 428 (AD) , but considered it

pointless to reargue that issue. Mr. Duncan on behalf of respondents considered the contentions

which were successful in that case as implicit in his F submissions. The only effect of that

decision upon his argument, he stated, was to relieve him from the necessity of going over the

same ground again. Nevertheless Mr. Beyers based certain arguments upon the different

constitutional relations which existed between the Union and G Great Britain before and after the

enactment of the Statute of Westminster. He suggested that sec. 152 contemplated a situation in

which Great Britain could by executive action as well as by legislation prevent our Parliament

from putting on the statute book a measure of which it did not approve; that since Great Britain

has by legislation and constitutional convention abdicated from its Imperial position in H relation

to the Union, the inhibiting force of the provisions of sec. 152 have in some manner ceased to

operate or been weakened. If that be true sec. 152 was at the time of its enactment mere

surplusage, entirely unnecessary and meaningless. Putting aside nomenclature, the Act of Union

in substance created a Kingdom, the Kingdom of South Africa, and had far-reaching

constitutional and political implications. The product was a constitutional Kingdom with the

checks and safeguards which one expects in a body politic so

1952 (4) SA p791

VAN DEN HEEVER JA

organised but since our constitution is a modern creation they are not necessarily fashioned on

British models. One of these checks is contained in sec. 152 read with sec. 35. It says that 'no

31

person' shall be deprived of his Cape franchise by ordinary legislation; in other words, a check

was put upon legislative power in favour of the individual.

A How it can be contended that since the Imperial abdication of Great Britain that check has

become weakened, I cannot grasp. That contention assumes that as soon as the policeman is

round the corner there is no law. In this connection the fact that our constitution is the creature B

of the British Parliament seems to me a fortuitous circumstance which is quite irrelevant; so too

is the fact that we have a written constitution. I would have been of the same opinion if it had

been framed by a constituent assembly of the people, made by Solon or extracted from the laws

of Hammurabi. It seems to me immaterial whether C one adheres to the mandatory theory of

legislative power or any other. The fact remains that the South Africa Act is our constitution and

apart from that constitution there are no organs of state and no powers. If you will, call the

cohesive force what Jellinek used to term ' die D normirende Kraft des Factischen' . Neither the

people nor any other constituent authority has conferred upon Parliament as ordinarily

constituted the power to alter the Cape franchise. In fact such power has been expressly

withheld. Parliament as ordinarily constituted has not as yet effectively and finally assumed such

power in a revolution, E nor has Parliament functioning unicamerally with the requisite majority

conferred such power. There is no other conceivable source of such power; consequently it does

not exist. If nevertheless Parliament as ordinarily constituted assumes the power to alter the Cape

franchise, its act would have no greater validity than if the City Council of F Bloemfontein had

presumed to do so. Only British bias could prompt the thought that since such a power resides in

the Legislature in Britain our Parliament as ordinarily constituted must necessarily have it too.

In the Act under consideration, Mr. Beyers and Mr. van Wyk strenuously G contended,

Parliament as ordinarily constituted has not attempted to exercise powers in disregard of the

provisions of sec. 152; on the contrary, it has left that section intact. Parliament in that form has

full power to reorganise the Judiciary; exercising those undoubted powers, it has created a Court

superior to the Appellate Division. H Substantive rights are guaranteed in the constitution; they

still 'stand', counsel contended, although by the amendment of adjective law their enforcement

may have become impossible. How rights so prostrate can be said to remain 'standing' I cannot

grasp - but these are words.

32

I go part of the way with counsel for respondents. As ordinarily constituted Parliament has

unlimited power to reorganise the judiciary. It can create a Court or Courts superior to the

Appellate Division and confer upon them such jurisdiction as it

1952 (4) SA p792

VAN DEN HEEVER JA

thinks fit. From the second preamble to the South Africa Act it is clear that the authors of our

constitution had in mind the doctrine of the trias politica and the existence of some judicial

power to enforce the constitutional guarantees. That seems to follow by necessary intendment. A

But I do not think the further inference is justified that they had in contemplation that the judicial

power had for ever to be exercised by Courts constituted in a manner which satisfies certain

criteria to the end that the independence, competence and justness of these tribunals be manifest

and secured. I do not think they intended that Courts should B always be of the kind to which

they were accustomed. We have had many kinds of Courts; we have had trial by battle, by fire

and by flood. We have heard of modern 'people's Courts', in which the standard of justice was

perhaps no higher than in the judicium ferri candentis of C the Lombards (Gengler, Germanische

R-Denkmäler, p. 759). In Holland to-day there is cassatie in belang der wet which the Attorney-

General may set in motion although the parties to the dispute have acquiesced in the judgment

taken on review (Art. 89, Wet op de Regterlijke Organisatie). In this respect the Legislature has

absolute freedom of D action and it is not for the existing Courts to criticise the wisdom or equity

of a measure passed in the exercise of that power by a comparison of the Court established with

courts answering to some preconceived standard.

E All this, however, is subject to one limitation which follows by necessary implication and has

no relation to the character or competence of the new creation: it must be a Court. Since it was

conceived as being the arbiter between Parliament as ordinarily constituted or even in joint

session and subjects who complain that they have F unconstitutionally been deprived of their

rights, it must necessarily be a body other than Parliament and capable of passing judgment on

that issue.

33

In the light of these considerations I now examine the High Court of Parliament Act, 35 of 1952.

Sec. 3 (1) provides that every senator and G every member of the House of Assembly shall be a

member of the Court. Sub-sec. (6) of that section excludes certain members, but that is only in

order to avoid the absurdity of their passing judgment in a matter which was already part heard

when they became members. Fifty members shall form a quorum. The Governor-General may

determine the venue of the H Court (sec. 4). The decision of the majority of the members present

shall be the decision of the Court (sec. 8 (2)).

If we winnow out the chaff of nomenclature and regard the substance, what have we here?

Parliament as ordinarily constituted enacts that Parliament in joint session may change its venue

and its name and by a bare majority of those present (the Constitution requires a two-thirds

majority of the total number of members of both Houses) and at one reading (the Constitution

requires three) pass a declaratory act as to the meaning of secs. 35, 137 and 152 of

1952 (4) SA p793

VAN DEN HEEVER JA

the South Africa Act. That the meaning so given is in direct conflict with the judgment of what

was hitherto the highest Court in the land, is to my mind interesting but irrelevant. If a statutory

provision is capable of two constructions and a law is passed that henceforth it shall bear only

one construction, that law pro tanto repeals and certainly alters the provision.

A How is this affected by the provision that the High Court may do so on legal grounds? Save as

an evasion I can see no virtue in these words. If an Act is beyond the competence of a legislative

body, its motives are irrelevant, whether they be ethical, legal or political. Where Courts of B

Laws have in two instances been exercised by the question whether or not a Legislature has

exceeded its powers and deprived subjects of their rights and the constituent individuals of that

legislative body functioning in a different manner are appointed as a final Court of Appeal to

determine whether they had acted lawfully or otherwise, their C newly acquired capacity and

functions cannot by any standard be said to be judicial.

34

I have come to the conclusion therefore that in Act 35 of 1952 Parliament as ordinarily

constituted purports to empower Parliament in D joint session to ignore the checks limiting the

powers of both. The measure is therefore invalid.

As far as I am concerned the foregoing disposes of the matter. It is expedient, however, to deal

with certain arguments advanced by counsel for appellants.

E Mr. Beyers strenuously contended that the only limitation of power contained in sec. 152 is a

limitation of the power to repeal or alter and here Parliament has not repealed or altered. That

argument is too mechanical. No authority is required for the proposition that repugnance effects

repeal and alteration. Mr. Beyers and Mr. van Wyk both placed F strong reliance on the decision

in Dadoo Ltd. & Others v Krugersdorp Municipal Council , 1920 AD 530 . Mr. Beyers , perhaps

rashly, conceded that the principle of fraus legis is applicable to the acts of a legislature. If the

Roman-Dutch law relating to fraus legis properly understood were to be applied to the present

dispute appellants would be G out of court. This however, is hardly the occasion to enter upon

that enquiry. In that case INNES, C.J., said

'Parties may genuinely arrange their transactions so as to remain outside its (a statute's)

provisions. Such a procedure is, in the nature of things, perfectly legitimate.'

H I would point out, however, that there are statutes and statutes. If a Legislature devises a

measure to repress some mischief, it should direct its words to the mischief itself; if it chooses to

set about its task by indirect methods, that is by barring avenues to the realisation of the mischief

and does not succeed in doing so exhaustively, that is the misfortune of the Executive, not of the

subject. In accordance with this principle statutes inhibiting the freedoms of the subject are not

extensively interpreted or in a manner favourable to the curtailment of rights. It is quite another

1952 (4) SA p794

HOEXTER JA

matter, however, if the statute we have to interpret expressly applied curbs on legislative powers

35

in the interests of the subject and has entrusted to the Courts, if their aid be invoked, the duty of

protecting the rights of the subject against the enactment of measures which A purport in excess

of such power to deprive citizens of guaranteed constitutional rights. In such a case a Court

would not be doing its duty if by mechanical adherence to words it allowed the patent intention

of the constituent Legislature to be defeated and the rights to be proscribed.

B For these reasons I concur in the order proposed by the CHIEF JUSTICE.

HOEXTER, J.A.: The facts are stated and the relevant statutory provisions are quoted in the

judgment of the CHIEF JUSTICE.

C In the first part of this judgment it will be assumed that the High Court of Parliament, to which

I shall refer as the High Court, is in substance, as well as in form, a Court of Law. On that

assumption I shall consider the question whether the High Court of Parliament Act, 35 of 1952,

to which I shall refer as the Act, has repealed or amended sec. D 152 of the South Africa Act. I

shall begin by examining the argument of counsel for the appellants that sec. 152 of the South

Africa Act does not entrench the testing right of the citizen. By the testing right I mean the right

of the citizen, on whom rights have been conferred by secs. 35, 137 and 152 of the South Africa

Act, to test in a Court of Law E the validity of any legislation which repeals or amends those

sections. Counsel for the appellants contended that sec. 152 conferred rights of substantive and

not of adjective law, that the testing right pertains to adjective and not to substantive law, and

that it is therefore not entrenched. That argument hardly merits consideration. This Court has F

held, and rightly held, that the testing right is the very essence of the constitutional guarantee

contained in sec. 152. Without the testing right there is no protection whatever for the citizen

whose entrenched rights are being assailed. Indeed, counsel was forced to put forward the G

hopeless argument that Parliament could validly abolish the testing right of the citizen by

depriving the Courts of Law of the testing power, which is the corollary of the testing right and

may be defined as the power of Courts of Law to test the validity of legislation which repeals or

amends the entrenched clauses. This Court has rightly held H that Parliament sitting bicamerally

may not repeal or amend the testing power of the Courts of Law. Moreover, whatever may be the

true distinction between substantive and adjective law, in my opinion the testing right conferred

36

on the citizen is no mere matter of adjective law; it is a substantive right conferred by sec. 152

and it can be repealed or amended only in the manner provided by sec. 152.

In my opinion, for the reasons which follow, the effect of the Act is to abolish the testing power

of the Courts, and thereby the testing right of the citizen, in respect of any statute which the

1952 (4) SA p795

HOEXTER JA

High Court has declared valid. There can be no doubt that the decisions of the High Court, being

a Court superior to the Appellate Division of the Supreme Court, are binding on that Division. It

follows that once the High Court has declared a particular statute valid, the validity of that statute

can never be successfully assailed in the Supreme Court. A That would not matter if the citizen

still had the right to test the validity of that statute in the High Court. But that is the very right

which is denied to him by the Act, because the citizen has no right of appeal to the High Court

against a judgment of the Appellate Division declaring a statute valid. In the result the Act has

abolished the B testing right of the citizen in respect of every statute which has been declared

valid by the High Court.

I do not think that counsel for the appellants seriously contested this result, but they contended

that the Act was valid because it had C achieved this result by amending the effect of the rule

stare decisis , a rule forming portion of the adjective law not entrenched by sec. 152. In my

opinion it is quite immaterial in what way the Act achieves the result of abolishing the testing

right of the citizen. I have already pointed out that the testing right is the very essence of the D

constitutional guarantee conferred by sec. 152, and it follows that any statute which abolishes the

testing right thereby amends sec. 152. But in fact I can find no reference whatever in the Act,

direct or indirect, to the stare decisis rule. The Act has abolished the testing right, not by

amending the stare decisis rule, but by denying the citizen a right E of appeal to the High Court

in every case in which the Appellate Division has declared a statute valid.

In the result the Act amends sec. 152 because it has deprived the citizen of his testing right. That

37

conclusion is sufficient to dispose F of the appeal, because the Act was not passed in accordance

with the requirements of sec. 152, but in my opinion the Act is invalid also on another ground.

So far I have assumed in favour of the appellants that the High Court is in substance, as well as

in form, a Court of Law. But the question now G arises why the Act has abolished the testing

power of the Courts of Law. I cannot avoid the answer that the object of the Act is to ascertain

the legal opinion of Parliament as to the validity of any statute declared invalid by the Appellate

Division and, whether that opinion is right or wrong in law, to make it unassailable in any Court

H of Law. It is clear from the Act that a sitting of the High Court is nothing but a joint sitting of

the two Houses of Parliament. I have already given my reasons for holding that the decision of

the High Court in declaring a statute valid is unassailable in any Court of Law. In giving those

reasons it was not necessary for me to rely on the provision in sec. 8 (3) of the Act that the

decisions of the High Court shall be final and binding. I may add here, however, that in my

opinion those words were used for the purpose of giving every decision of the High

1952 (4) SA p796

HOEXTER JA

Court the binding effect of a statute. Counsel for the appellants contended that those words

meant merely that a decision of the High Court would be binding inter partes . But even if those

words were capable of the construction contended for by counsel, the results which A would

flow from that construction are so extraordinary that they could never have been contemplated

by the Legislature. If the decision of the High Court were not binding on the Appellate Division,

the latter Court could legally declare valid a statute which had been declared invalid by the High

Court, because in that case the decision of the Appellate B Division would not be subject to

review by the High Court. And even though an Act had been declared invalid by the High Court,

it would be the recurring duty of a Minister of State to apply for a review of the judgment of the

Appellate Division whenever it held that same statute to be invalid.

C In short, I have no doubt that the object of the Act was to give the binding effect of a statute to

every decision of the High Court declaring a statute valid. In the result every such decision of the

High Court is no more and no less than a legislative declaration by D Parliament, sitting

38

unicamerally, that a statute which has been declared invalid by the Appellate Division is in law

valid. I am not losing sight of the fact that the Act provides that the High Court shall be a Court

of Law. To accept the proposition that the High Court is a Court of Law because the Act says so

would be to assume the validity of E the Act and therefore to beg the very question in issue. It is

because this Court may not assume the validity of the Act that it is its duty to penetrate the form

of the Act in order to ascertain its substance. Even in form the High Court is not readily

recognisable as a Court of Law correcting the judgment of the Appellate Division on legal

grounds. In F substance it is Parliament sitting unicamerally to declare the validity of a statute by

a legislative act. Counsel for the appellants relied strongly on the provision that the High Court is

to act on legal grounds. The object of those words is merely to give the decision of the G High

Court the form of a judgment by a Court of Law, but in substance and in effect the declaration by

the High Court that a statute is valid always remains a legislative act. If the High Court declares

Act 46 of 1951 valid, the position would be exactly the same as if Parliament had sat

unicamerally in passing that Act, had passed it by a majority H falling short of the prescribed

two-thirds majority and had, after hearing counsel in Select Committee, inserted in that Act a

section declaring it to be valid on legal grounds.

If the Act had indeed intended to appoint a new Court of Law to correct the legal errors of the

Appellate Division, I have no doubt that it would have appointed a Court qualified to detect

those errors. It would have contained provisions for ensuring the impartiality of the members of

that new Court as stringent as those which apply to Courts of Law. It has not done so; on the

contrary

1952 (4) SA p797

HOEXTER JA

it has made no provision for ensuring that the members of the High Court will have high, or even

any, legal qualifications, and its provisions for ensuring the impartiality of the members of the

High Court are so lax that they permit those very persons who have passed a statute to declare

that it is valid. Again, if the object of the Act had been to A appoint a Court of Law to correct the

legal errors of the Appellate Division, it would not have provided for a review only in the case of

39

a judgment of the Appellate Division declaring a statute invalid. A judgment declaring a statute

valid is just as likely to be wrong in law.

B In my opinion the High Court of Parliament Act authorises Parliament to do unicamerally by a

bare majority what sec. 152 of the South Africa Act says it may do unicamerally only by a two-

thirds majority.

I agree that the appeal should be dismissed with costs.

C Appellant's Attorneys: Assistant Government Attorney , Cape Town; Naudé & Naudé ,

Bloemfontein. Respondents' Attorneys: Rose-Innes & Jordan , Cape Town (for the respondents

Ganief Harris and Edgar Franklin); Bloomberg, Baigel & Co. , Cape Town (for the respondents

William David Collins and D Edgar Arthur Deane); Goodrick & Franklin , Bloemfontein.

APPENDIX

E DIGEST OF CASES ON APPEAL