Harris v Minister of the Interior (no.2) (1952) 4 SA 769; in the Appellate Division of the Supreme Court of South Africa
CENTLIVRES CJ:....A week after the High Court of Parliament Act was promulgated the successful appellants in the former case applied, on notices of motion addressed to the respondent in that case to the Cape Provincial Division [of the Supreme Court] for, inter alia, an order declaring, that Act 35 of 1952 [the High Court of Parliament Act] 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
"that on a true and proper construction of s. 152 of the South Africa Act and of Act 35 of 1952, the latter measure constitutes an alteration of s.152 of the South Africa Act".
There can be no doubt that the successful appellants in the former case...have 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....
It is clear from ss.35, 137 and 152 of the Constitution that certain rights are conferred on individuals and that these rights be abolished or restricted unless the procedure prescribed by s.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 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 litigaition, being to ensure that the protection of the guarantee is made effective, unless and until it is modified by legislation in such a form as under the Constitution can validly effect such modification....
The method employed by s.152 to entrench the rights conferred by ss.35 and 137 is the sanction of invalidity. This can only mean invalidity in law as determined by Courts of Law which consider issues raised by parties who bring their disputes before such courts.... 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 be to render nugatory the rights entrenched in the Constitution.
It will be noticed how carefully s.152 is worded. It was realised that it was necessary to entrench s.152 itself in order to make it clear beyond any doubt that Parliament sitting bicamerally should not have the power to repeal the provisos to s.152 and thus to enable itself, sitting bicamerally, to repeal or amend ss.35 and 137. This in itself emphasises the intention to protect to the utmost the rights entrenched by s.152.
Mr. Beyers, who appeared on behalf of the Minister, laid great stress on 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 in 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 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 provisions of s.152 of the Constitution. Such an Act would, he contended, have been valid, provided that it did not repeal the provisos to s.152. This is a startling proposition. As I understand Mr. Beyers' argument the substantive right would, in the event of such an 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 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 s.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 Law. They could never have intended to confer a right without a remedy....
But, whether any useful distinction can or cannot really be drawn 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 s.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 s.152; if it does, then it cannot stand. If the High Court of Parliament can properly be described as a Court of Law, then it is a Court which differs in material respects from such Courts of Law as were envisaged by s.152 of the Constitution. I do not consider it necessary for the purposes of the judgment to point out all the differences: it will be sufficient to point out some of them. Members of the kind of Courts of Law envisaged by s.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 validity of which is questioned. The High Court of Parliament is composed of members of Parliament who in their capacity as legislators have passed what purports to be an Act of Parliament and in their capacity is judges they are called upon to decide whether the instrument which they passed is or is not a valid Act of Parliament. It is therefore an entirely different type of Court from what was envisaged by s.152 of the Constitution when it entrusted to the Courts of Law the duty of enforcing the rights safeguarded by that section.....
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 it the substance of the matter. The High Court of Parliament consists of "every member of the House of Assembly" (s.3(1)), the President of that Court must be either a Senator or member of the House of Assembly (s.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 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) (b)); the 'judicial committee' consists only of members of the Court who must therefore be members of Parliament (s.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.... No legal qualifications are required for membership of the High Court of Parliament.... 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 guarantees.
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....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 s.152 of the Constitution.
For all these reasons it seems to me that Act 35 of 1952 offends against s.152 of the Constitution as properly interpreted. It follows that the order made by the Provincial Division was correct.
The appeals are dismissed with costs.