Collins v Minister of the Interior  1 SA 552 (AD); in the Appellate Division of the Supreme Court of South Africa.
CENTLIVRES CJ:....If the Senate Act is taken by itself it cannot be said to be invalid, as it does not repeal or alter sc 152 of the South Africa Act nor does it repeal or alter any provision contained in s.35 or s.137 thereof. And if the Validation Act is taken by itself, it also cannot be said to be invalid, as it was passed by both Houses of Parliament sitting together and at the third reading was agreed to by not less than two-thirds of the total number of members of both Houses.
There can, however, be no doubt that the object of passing the Senate Act was to provide the Government with a two-thirds majority at a joint sitting of the two Houses in order to pass at that joint sitting an Act to validate Act 46 of 1951 [the Separate Representation of Voters Act]. In other words the object was to increase the membership of the Senate so as to provide the Government with a two-thirds majority of the members of both Houses - a majority which the Government did not command so long as the old Senate existed. Under s.134 of the South Africa Act read with s.24 eight senators were elected for each Province by the members of the Provincial Council for that Province together with the members of the House of Assembly elected for that Province, the election being conducted according to the principle of proportional representation whereby each voter had one transferable vote. The Senate Act abolished proportional representation as well as the principle of equal representation of the Provinces in the Senate but retained the system of an electoral college for each Province. In the Cape, Transvaal and Orange Free State Provinces the Government party were in a majority in the electoral college of each of those Provinces and succeeded in electing 22, 27 and 8 Senators, respectively. In Natal the Government party was in a minority and 8 Senators were elected by the Opposition. In the old Senate the number of Senators for the Union nominated by the Government was 8 whereas in the reconstituted Senate the number was 16. When it passed the Senate Act Parliament must have been aware of the fact that the numerical strength of the parties in the electoral colleges would be such that the Government would succeed in obtaining a two thirds majority at a joint sitting of the two Houses of Parliament: indeed the only inference I can draw from the Prime Minister's affidavit and the admitted facts is that the sole reason why the membership of the Senate was increased was because it was desired to provide the Government with a two-thirds majority at a joint sitting of the two Houses in order to validate Act 46 of 1951....
If a Legislature has plenary power to legislate on a particular matter no question can arise as to the validity of any legislation on that matter and such legislation is valid whatever the real purpose of that legislation is. If Parliament sitting bicamerally has plenary power to reconstitute the Senate, ie if its powers are not restricted by any other provision in the South Africa Act then evidence as to the purpose of the Senate Act is irrelevant.
Mr Duncan, who appeared on behalf of the appellants. contended that the reconstituted Senate was not one of the "Houses of Parliament" within the meaning of those words in s.152 and that it could never have been the intention of the Legislature which enacted the South Africa Act that a House (which counsel described as a "packed" House) constituted by Parliament sitting bicamerally for the purpose of ensuring a two-thirds majority at a joint session for a particular measure should be a House competent to take part in a joint sitting in terms of the proviso to s.152. Developing this contention counsel argued that each and every power vested in the two Houses sitting bicamerally must be read as being subject to the proviso to s.152. That it must be so read is, in my opinion, beyond doubt....Thus in spite of the fact that the widest possible powers are conferred on Parliament sitting bicamerally, those powers are subject to the proviso to s.152. For instance, Parliament sitting bicamerally cannot in reconstituting the Senate provide that membership shall be confined to persons who can speak and write English or to persons who can speak or write Afrikaans. Such a proviso would...be an alteration to s.137.
Developing his argument Mr. Duncan submitted that the expressed intention of the Legislature which enacted the South Africa Act was that the proviso should be a legal guarantee enforceable in a court of law and that it should not depend upon good faith, the electorate or public opinion....
If I understood counsel's contention correctly, the proviso to s.152 should be construed in such a manner as to invalidate any Act which destroys any entrenched rights when such an Act is passed by means of a two-thirds majority which was artificially created for the very purpose of passing that Act. I know of no authority for justifying such a construction. In the present case the Senate Act, which created the artificial majority, is not hit by the proviso, unless one reads something by implication into the proviso. But Mr. Duncan expressly stated in the course of his argument that he did not rely on any implication. And in my opinion he was correct in making that statement.....
Counsel for the applicant relied strongly on the High Court case....In the present case, however, it cannot in my opinion be said that the reconstituted Senate is not a Senate in the ordinary meaning of that word. Even if the Senate Act had reconstituted the Senate by enacting that the Senate should consist entirely of Government supporters whose names were set forth in the Act it would still have been one of the Houses of Parliament within the meaning of the provision to s.152....
Counsel for the appellant relied on the following passage in the High Court case at p780:
"It does not of course follow . . . that Parliament sitting bicamerally is not entitled to amend those sections of the Constitution which deal with the Judiciary" (this must naturally apply to other sections of the Constitution which deal with other matters) but it cannot . . . bicamerally pass any Act, the effect of which would be to render nugatory the rights entrenched in the Constitution".
Mr Duncan contended that the direct effect of the Senate Act was to render nugatory appellant's rights as a voter which were specially entrenched both by s.35 and by s.152. That Act which was passed bicamerally with the sole purpose of creating an artificial two-thirds majority at a joint sitting of the two Houses resulted, according to Mr Duncan's contention, in the appellant's rights becoming valueless if the Act were to be held to be valid. Those rights would have been rendered valueless by Parliament sitting bicamerally because those rights would then be at the mercy of the Government which would then command a two-thirds majority at a joint sitting of the two Houses, whereas it was clearly the intention of the Constituent Parliament when it enacted the South Africa Act that those rights should not be destroyed unless a Bill destroying those rights is passed by both Houses of Parliament sitting together and at the third reading is agreed to by not less than two-thirds of the total number of members of both Houses: it could never have been intended by the framers of the Constitution that Parliament could by means of a legislative plan or scheme deprive voters of their rights on the ground of their race or colour only otherwise than by means of a genuine two-thirds majority at a joint sitting of the two Houses of Parliament as prescribed by the proviso to sec. 152.
When one of the Judges in this Court stated in the High Court case that Parliament cannot bicamerally pass any Act, the effect of which would be to render nugatory the rights entrenched in the Constitution he meant, in my opinion, that Parliament cannot bicamerally pass any Act which would have the legal effect of rendering nugatory the entrenched rights. He was there dealing with a case where the High Court of Parliament Act, which was passed bicamerally, purported to constitute a final appellate tribunal which the Act called a court of law. It is clear from the rest of the judgment, as well as from the judgments delivered by the other members of the Court, that the High Court of Parliament Act was declared invalid because the appellate tribunal created y that Act was not a court of law as envisaged by the proviso to s.152 of the Act: in other words the High Court of Parliament Act could not in law have the effect of depriving the citizen of the judicial safeguard envisaged by the framers of the Constitution. No doubt the effect of the Senate Act was to supply the Government with the two-thirds majority required by the proviso to sec. 152 but it did not in any way purport to affect the appellant's rights and so it cannot be said to have rendered his rights nugatory. A further legislative step had to be taken in order to destroy appellant's rights and that step was in conformity with the proviso to s.152. As already pointed out neither legislative step, taken by itself, is ultra vires. In my view. therefore, the passage in the High Court case relied on by Mr Duncan is of no assistance to the appellant.
SCHREINER JA (dissenting):....The first question to consider is whether Parliament can by bicameral legislation effectively assign to any body of persons whatsoever the title of Senate and the ordinary functions, exercisable bicamerally. of one of the Houses of Parliament. There does not seem to be any doubt that it can do so. In the course of argument the question was canvassed whether it is possible to distinguish between bodies to whom it would be fantastically absurd, and therefore impermissible, to assign the name and functions of a Senate, and other bodies which could rationally though hardly reasonably be made into a Senate. But such a distinction cannot be maintained. For the purpose of legislating outside the proviso Parliament could, acting bicamerally. appoint or create any body whatsoever and give it legislative functions and the title of Senate; for in respect of such legislation the proviso has no operation. But in respect of matters falling within the proviso any legislative action which detrimentally affects the position of those who are entitled to the protection of secs. 35 and 137 must conform to the requirements of the proviso, as a matter of substance and not merely as a matter of form. And the Courts are bound, when invited to do so, to inquire whether a body to which Parliament, acting bicamerally, has given the name and assigned the functions of a Senate is really a House of Parliament for the purposes of the proviso.
The effect of the proviso is, in my view, that when it comes to be applied to any Act of Parliament all the circumstances surrounding and leading up to the passing of that Act will have to be taken into account to see whether the requirements of the proviso have been implemented. As applied to the present subject matter it is necessary to examine the circumstances surrounding the passing of the Senate Act, to see whether 1 the body created by it is a House of Parliament within the meaning of the proviso. Put into the language of "objective qualities" it is necessary to consider whether an ad hoc Senate is such a House of Parliament.
Prima facie it is not. The proviso was intended to furnish a real and not a merely theoretical protection against Parliamentary majority acting bicamerally. Prima facie the framers of the Constitution did not intend that Parliament, that is, in effect, the Government acting through its majority, should have the power by bicameral legislation to convert an insufficient majority in a joint session into a sufficient one, merely by invoking the procedure of nomination or its equivalent. It was the Houses of Parliament constituted in order to carry out generally the legislative work of the Union, and only such Houses, that would, prima facie, be understood by the ordinary reader to have been intended the proviso.....
Counsel for the appellant, while not contending that the cases were indistinguishable, laid stress upon the High Court case. I agree that substantial support for his argument is to be found in that case. The High Court of Parliament Act did not, in my view, render the constitutional guarantees represented by the proviso nugatory in law but, if effect were to be given to its provisions, it made the guarantees incomparably weaker in fact. In theory the High Court of Parliament might have upheld this Court's decision in the earlier case but there was a substantial degree of improbability that this would happen nor did it. In this respect then, the High Court decision is of importance in the present case, for it meets the argument advanced on behalf of the respondents that conceivably the additional government Senators created under the Senate Act might have voted in the joint sitting against the passing of the 1956 Act. Such and similar possibilities which were suggested in the course of argument seem to me to be divorced from reality. In another respect too the High Court case supports the appellant's contentions. Although it was decided that the High Court of Parliament was not such a tribunal or Court as was envisaged by the proviso, there is no doubt that it could effectively have been given power to hear appeals from this Court in matters falling outside the proviso. Being given the name of court by the statute creating it, there could have been no justification for denying it that title, if its jurisdiction had related only to matters outside the proviso. The crucial defect in the High Court of Parliament was, not that it could in no circumstances be regarded as a court, but that it was not a court for the purposes of the proviso. The position of the Senate under the Senate Act seems to me to be similar.
It should be observed that under the statute setting up the High Court of Parliament that tribunal was not given jurisdiction in matters other than those in which the validity of an Act of Parliament was in question. But had it been given such jurisdiction it does not seem to me that the result could have been different. In the present case the Senate constituted under the Senate Act has ordinary bicameral duties to perform but that does not, in my view, affect the position. If the Senate Act had in one part constituted the new Senate and assigned it bicameral legislative powers only and in another part had assigned it the power to take part in joint sessions under the proviso, there would, as I see the position, have been no difficulty in declaring the one part valid and the other invalid. The fact that the plan followed by Parliament was to pass an Act which did not differentiate between the two functions of the Senate cannot, in my view, make any difference in the substance of the matter. The appellant is entitled to object not only to a Senate nominated to do nothing but vote in a joint session but also to a Senate whose size and composition have been dictated solely by its joint session functions. I do not agree that, as was contended for the respondents, the appellant's argument involves the possible coexistence of two Senates, one able to legislate only on matters outside the proviso and the other able to deal with every kind of subject matter. But even if that were the position it does not seem to me that it would be relevant. The result would flow from the nature of the legislative plan embarked upon; it could not, any more than could the possibility that there might be legal difficulties in restoring the position of the Senate, if the appeal is allowed, affect the appellant's rights under the proviso.
In the light of the above considerations what I referred to earlier as the prima facie correct view seems to me to be confirmed. I hold accordingly that on the proper construction of the South Africa Act a Senate constituted ad hoc for the purpose of securing, by nomination or its equivalent, a two-thirds majority in a contemplated joint sitting is not a House of Parliament within the meaning of the proviso.
The application of this conclusion to the facts creates no difficulty. It is clear that the Senate set up under the Senate Act was as certain to provide the requisite two-thirds majority as if the names of its members had been scheduled to the Act or the Government had been empowered to nominate all of them. It is not seriously disputed by the respondents, and the history of the legislation proclaims, that the Senate Act was part of a legislative plan to create a Senate that would in that way provide the two-thirds majority required to remove the appellant from the common roll, and that it was enacted only for that purpose.
For these reasons I would allow the appeal and grant an order declaring the South Africa Act Amendment Act 1956 to be of no legal force and effect.