This essay will attempt to demonstrate via the two Harris and Collins how the Apartheid regime attempted to manipulate the law via both Parliamentary and Senate procedures in order top entrench white supremacy by disenfranchising people of colour.
Political assurance was translated into political action in 1936 when the Representation of Natives Act, which removed African voters from the electoral roll in the Cape Province and gave them separate representation, was passed by the unicameral procedure laid down in the entrenched provision. Before the cases mentioned above a similar case occurred in Ndlwana v Hofmeyr NO where the Act was challenged by an African voter on the ground that the unicameral procedure was, since the passing of the Statute of Westminster, no longer lawful. The case held that ‘Parliament can adopt any procedure it thinks fit; the procedure express or implied in the South African Act so far so far as Court of Law are concerned is at the mercy of Parliament like everything else’
In the first Harris case the government had purported to remove coloured voters in the Cape from the common roll, and put them on a separate roll. Having only a minority of support for this change, the legislature accomplished it by enacting a statute by a simple majority in each of the two houses of Parliament. The Constitution, however, required a special entrenched procedure for the enactment of such legislation. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting rights of Cape Coloured voters could only be removed by a two-thirds majority of both Houses of Parliament sitting together. The Appellate Division decided that the Voters Act was not valid as the procedure laid down was not adhered to. Ruling unanimously that the government's attempt to by-pass the entrenched provisions was invalid, Centlivres CJ speaking for the Appellate Division observed: ‘A State can be unquestionably sovereign although it has no legislature which is completely sovereign.’ This judgement did so in restrained terms, without condemnation of the governments actions, and in words which indicated that the courts objection concerned the formal procedures for the passing of the act and not its content.
The same voters then challenged the validity of Act 35 of 1952 in the second Harris case and were again victorious. The Appellate Division held that Parliament, by enacting the statute, had attempted to do by indirect means which is to remove coloured voters from the common roll.
However, the National Party government, being committed to the objective it had set itself, decided, through Cabinet early in 1955, to change the composition of the Appellate Division as a first step in the plan which was eventually to succeed. It raised the quorum to eleven in all cases in which the validity of an Act of Parliament was contested. Since there were only six judges of appeal a further five judges were appointed, the overall aim being, of course, to dilute the opposition in the court to the removal of the coloured voters from the roll.
In the Collins case, the court then packed by an additional five members, accepted that further legislations passed to remove the voters from the roll was not subject to judicial scrutiny. The majority of the Appellate Division decided in favour of the government and held that the property passed legislation, regardless of its political purpose, would be upheld by the court. The court upheld the validity of the South African Act Amendment Act on the ground that neither the Senate Act, nor the South African Act Amendment Act, viewed...