(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. 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. In furtherance of its racist ideology the Nationalist government decided to abolish this right. Its attempt to do so was contested. In Harris v Minister of the Interior 1952 (2) 428 (AD) the issue came before the Appellate Division, as it was then known. The court had in mind (at 431C) the clear distinction between what Parliament may do by legislation and what the constituent elements must do to legislate. 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. As Bryce points out in his Studies in History and Jurisprudence (1901 ed, vol II, p 53) legal sovereignty may be divided between two authorities. In the case of the Union, legal sovereignty is or may be divided between Parliament as ordinarily constituted and Parliament as constituted under section 63 and the proviso to section 152. Such a division of legislative powers is no derogation from the sovereignty of the Union and the mere fact that that division was enacted in a British Statute (viz, the South Africa Act) which is still in force in the Union cannot affect the question in issue.’
Centlivres CJ
1952 (4) SA 769
England and Wales
Cited by:
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.231148
