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G.W. Eybers.

Select constitutional documents illustrating South African history, 1795-1910 online

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could sentence to fines not exceeding ;(75> or imprisonment for a period
not exceeding six months, or whipping not exceeding twenfy-five
lashes. Several laws of a later date modified the provisions of this
Ordinance. Among those to be noted are Ord. No. 12 of 1904, Act
No. 18 of 1907, and Act No. 30 of 1908.

Proclamation No. 14 of 1902 (10 April) established a •< Hic^h Court
of the Transvaal " to consist of at least four jud^ with tihe usual
jurisdiction and powers. The judges held office during good behaviour
and could be dismissed by the Crown, or by the Governor subject to the
Crown's approval, on misconduct being proved. The High Court could
review sentences of the inferior courts, and in certain cases appeals were
allowed from its decisions to the Privy Council. The Roman-Dutch
Law was retained. The same Proclamation set up a superior court
for Johannesburg called the - - Witwatersrand District Court/' in which
there sat one judge with the same jurisdiction and powers as those
exercised by the High Court except m matters of appeal. Ordinance
No. 2 of IQ02 (4 Jufy) changed the names of these two courts respec-
tively to *' Supreme Court of the Transvaal," and -Witwatersrand
High Court." Ordinance No. 38 of 1902 (21 Nov.) provided for the
wiudrawal of Martial Law from the Colony. Circuit Courts were pro-
vided for by Ordinance No. 10 of 1903 (27 Feb.). Like the Rand High
Court they had no appellate Jurisdiction. Otherwise th^ exercised
the same authority as the Supreme Court. Like the Kand High
Court they exercised some of their powers only subject to appeal to
tiie Supreme Court. Ordinance No. 31 of 1904 provided that one
judge could constitute a court, to be styled a Divisional Court, if
parties in a case consented to this, or if by order of the Supreme Court
any action was remitted to be so heard. The chief Ordinance dealing
with juries is No. 10 of 1902/.



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5i6 THE TRANSVAAL [1902-10

THE TRANSVAAL : MUNICIPAL GOVERNMENT,
1902-1910.

[Ordinance No. 38 of 1903 provided for the election of members
of councils of municipalities then existing or still to be established.
Electors were white male or female British subjects of 21 years of age
and older, who were owners of rateable property valued at ;(ioo
or occupiers of property valued at ;(300 or of the annual value <d
£24, Male votc^ could be elected councillors to hold ofi&ce for
thi^ee 3rears. The Councillors were to elect one of their number to
be a mayor, to whom allowances could be made for expenditure
incurred. Tlie duties and functions of the councils were defined by
the next important ordinance. No. 58 of 1903 ; and several other
important laws followed. Series of special provisions were enacted
for Pretoria and Johannesburg from 1902 onwards.]



THE INTER-COLONIAL COUNCIL.

[By Order in Council dated 20th May 1903, an Inter-Colonial
Council, common to the Orange River Colony and to the Transvaal,
was established.^ The object of this body was to avoid a division
of the Central South African Railway system which extendi over
both Colonies ; but its functions included also the control of expencU-
ture connected with the South African Constabulary and other
matters. The arrangement was rendered liable to termination on
the motion of either Colony, after six months' notice, subsequent to
the establuhment of responsible government in both Colonies. Such
notice was given by bou governments early in December 1907, and
the Council ceased to exist on 2nd June 1905. Thereupon the C.S.A.
Railwa)^ were worked as a joint system.]

» [Cd. 1641.]



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CHAPTER V.
THE UNION OF SOUTH AFRICA.

No. 886. SOUTH AFRICA ACT, 1909.

[9 Edw. 7, Ch. 9.]

[This Act was passed through both Houses of the Imperial Parlia-
ment exactly as it was forwarded after the South African Convention
was held. It was assented to by Kiujg Edward VII. on 20th Septem-
ber 1909; and a Royal Proclamation of the 2nd December 1909
declared the date of tne establishment of Union to be the 31st May
1910.]

ARRANGEMENT OF SECTIONS.

I. Preliminary.

Section.

1. Short title.

2. Definitions.

3. Api^cation of Act to King's success(»s.

II. The Union.

4. Proclamation of Union.

5. Commencement of Act.

6. Incorporation of Colonies into the Union.

7. Application of Colonial Boundaries Act, etc.

III. Executive Government.

8. Executive jpower.

9. Governor-General.

10. Salary of Governor-General.

1 1. Application of Act to Governor-General.

12. Executive Council.

13. Meaning of Governor-General in Council.

14. Appointment of Ministers.

15. Appointment and removal of officers.

16. Transfer of executive powers to Governor- General in Council.

17. Command of naval and military forces.

18. Seat of Government.

IV. Parliament.

19. Legislative power.

20. Sessions of Parliament.

21. Summoning of first Parliament.

22. Annual session of Parliament.

23. Seat of Legislature.

5«7



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5i8 THE UNION

Section.
<—<*-. 24. Original constitution of Senate.

25. Suraequent constitution of Senate.

26. Qualifications of senators.

27. Appointment and tenure of office of President.

28. Deputy President.

29. Resignation of senators.

30. Quorum.

31. Voting in the Senate.

House of A ssembly.

32. Constitution of House of Assembly.

33. Original number of members.

34. Increase of number of members.

35. Qualifications of voters.

30. Application of existing qualifications.

37. Elections.

38. Commission for delimitation of electoral divisions.

39. Electoral divisions.

40. Method of dividing provinces into electoral divisions.

41. Alteration of electoral divisions.

42. Powers and duties of commission for delimiting electoral

divisions.

43. Date from which alteration of electoral divisions to take

effect.

44. Qualifications of members of House of Assembly.

45. Duration.

46. Appointment and tenure of office of Speaker.

47. Deputy Speaker.

48. Resignation of members.

49. Quorum.

50. Voting in House of Assembly.

Both Houses of ParliamenL

5 1. Oath or affirmation of allegiance.

52. Member of either House disqualified for being member of the

other House.

53. Disqualifications for being a member of either House.

54. Vacation of seats.

55. Penalty for sitting or voting when disqualified.

56. Allowances of members.

57. Privileges of Houses of Ptoliament.

58. Rules of procedure.

Powers of ParliamenL

59. Powers of Parliament.

60. Money Bills.

61. Appropriation Bills.

62. Recommendation of money votes.

63. Disagreements between the two Houses.

64. Royal Assent to Bills.

65. Disallowance of Bilb. ^

66. Reservation of Bills.

6^, Signature and enrolment of Acts.



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SOUTH AFRICA ACT, 1909 519

V. The Provincbs.

Administrators.
Section.

68. Appointment and tenure of office of provincial administrators*

69. Salaries of administrators.

Provincial Councils.

70. Constitution of provincial councils.

71. Qualification of provincud councillors.

72. Application of sections 53 to 55 to provincial councillors.

73. Tenure of office by provincial councillors*

74. Sessions of provincial councils.

75. Chairman 01 provincial councils.

76. Allowances of provincial councillors.

7y. Freedom of speech in provincial councils.

Executive Committees.

7S. Provincial executive committees.

79. Right of administrator, etc., to take part io proceedings of

provincial council.

80. Powers of provincial executive committees.

81. Transfer of powers to provincial executive committees.

82. Voting in executive committees.

S$. Tenure of office by members of executive committees.

84. Power of administrator to act on behalf of Governor-General

in Council.

Powers of Provincial Councils,

85. Powers of provincial councils.

86. Effect of provincial ordinances.

87. Recommendations to Parliament.

88. Power to deal with matters proper to be dealt with by private

Bill le^lation.

89. Constitution of provincial revenue fund.

90. Assent to provincial ordinances.

91. Effect and enrolment of ordinances.

Miscellaneous,

92. Audit of x)rovincial accounts.

93. Continuation of powers of divisional and municipal councils*

94. Seats of Provincial Government.

VI. The Supreme Court of South Africa,

95. Constitution of Supreme Court

96. Appellate Division of Supreme Court.

97. Funn^ of temporary vacancies in Appellate Division*

98. Constitution of provincial and local divisions of Supreme

Court.

99. Continuation in office of existing judges.
100. Appointment and remuneration of judges,
loi. Tenure of office by judges.

102. Reduction in number of judges.

103. Appeals to Appellate Division. 2 v:



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520 THE UNION

Section.

104. Existing appeals.

105. Appeals from inferior Courts to provincial divisions.

106. Provisions as to appeals to the Kin^ in Council.

107. Rules of procedure in Appellate Division.

108. Rules of procedure in provincial and local divisions.

109. Race of sittings of Appellate Division,
no. Quorum for hearing appeals.

111. Jurisdiction of Appellate Division.

1 1 2. execution of processes of provincial divisions.

113. Transfer of suits from one provincial or local division to

another.

114. Registrar and officers of Appellate Division.

115. Advocates and attorneys.

116. Pending suits.

VII. Finance and Railways.

1 17. Constitution of Consolidated Revenue Fund and Railway and

Harbour Fund.

1 18. Commission of inquiry into financial relations between Union

and provinces.

1 19. Security for existing public debts.

1 20. Requirements for withdrawal of money from funds.

121. Transfer of colonial property to the Union.

122. Crown lands, etc.

1 23. Mines and minerals.

124. Assumption by Union of colonial debts.

125. Ports, narbours, and railways.

1 26. Constitution of Harbour and Railway Board.

1 27. Administration of railways, ports, and harbours.

128. Establishment of fund for maintaining uniformity of railway

rates.

129. Management of railway and harbour balances.

130. Construction of harbour and railway works.

131. Making good of deficiencies in Railway Fund in certain cases.

132. ControUer and Auditor-General.

133. Compensation of colonial capitals for diminution of prosperity.

VIII. General.

34. Method of voting for senators, etc.

35. Continuation of existing colonial laws.

36. Free trade throughout Union.

37. Equality of English and Dutch languages.

38. Naturalisation.

39. Administration of justice.

40. Existing officers.

41. Reor^nisation of public departments.

42. Public service commission.

43. Pensions of existing officers.

44. Tenure of office of existing officers.

45. Existing officers not to be dismissed for ignorance of En^h
or Dutch.

46. Compensation to existing officers who are not retained.
47- Administration of native affairs, etc.

48. Devolution on Union of rights and obligations under con-
ventions.



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SOUTH AFRICA ACT, 1909 521

Section. ^^* ^^^ Provinces and Territories.

149. Alteration of boundaries of provinces.

1 50. Power to admit into Union territories administered by British

South Africa Company.

151. Power to transfer to union government of native territories.

X« Amendment of Act.

152. Amendment of Act.
Schedule.



AN ACT TO CONSTITUTE THE UNION OF
SOUTH AFRICA.

Whereas it is desirable for the welfare and future progress
of South Africa that the several British Colonies therein
should be united under one Government in a legislative iinion
under the Crown of Great Britain and Ireland :

And whereas it is expedient to make provision for the
union of the Colonies of the Cape of Good Hope, Natal, the
Transvaal, and the Orange River Colony on terms and condi-
tions to which they have agreed by resolution of their respective
Parliaments, and to define the executive, legislative, and
judicial powers to be exercised in the government of the
Union :

And whereas it is expedient to make provision for the
establishment of provinces with powers of legislation and
administration in local matters and in such other matters
as may be specially reserved for provincial legislation and
admimstration :

And whereas it is expedient to provide for the eventual
admission into the Union or transfer to the Union of such
parts of South Africa as are not originally included therein :

Be it thereforeenacted by the King'smost Excellent Majesty,
by and with the advice ana consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :

I. Preliminary.

1. This Act may be cited as the " South Africa Act, 1909."

2. In this Act, unless it is otherwise expressed or implied,
the words " the Union " shall be taken to mean the Umon of
South Africa as constituted under this Act, and the words
" Houses of Parliament," '[ House of Parliament," or " Parlia-
ment," shall be taken to mean the Parliament of the Union.

3. The provisions of this Act referring to the King shall
extend to His Majesty's heirs and successors in the sovereignty
of the United Kingdom of Great Britain and Ireland.

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522 THE ONION

IL The Union.

4. It shall be laMrful for the King, with the advice of the
Privy Council, to declare by proclamation that, on and after a
day therein appointed, not being later than one vear after the
passing of this Act, the Colonies of the Cape of Good Hope,
Natal, the Transvaal, and the Orange River Colony, herein-
after called the Colonies, shall be united in a Legislative Union
under one Government under the name of the Union of South
Africa. On and sdfter the day appointed by such proclama-
tion the Government and Parliament of the Union shall have
full power and authority within the limits of the Colonies, but
the King may at any time after the proclamation appoint a
governor-general for the Union.

5. The provisions of this Act shall, unless it is otherwise
expressed or implied, take effect on and after the day so
appointed.

6. The colonies mentioned in section four shall become
original provinces of tlie Union under the names of Caj)e of
Good Hope, Natal, Transvaal, and Orange Free State, as the
case may be. The original provinces shall have tht same
limits as the respective colomes at the establishment of the
Union,

7. Upon any colony entering the Union, the Colonial
Boundaries Act, 1895, and every other Act applying to any
of the Colonies, as being self-governing colonies or colonies
with responsible government, shall cease to apply to that
colony, but as from the date when this Act takes effect every
such Act of Parliament shall apply to the Union.

HI. Executive Government.

8. The Executive Government of the Union is vested in the
King, and shaU be achninistered by His Majesty in person or
by a governor-general as His representative.

9. The Governor-General shall be appointed by the King,
and shall have and may exercise in the Union during the
King's pleasure, but subject to this Act, such powers and
functions of the King as His Majesty may be pleased to assign
to him.

10. There shall be payable to the King out of the Con-
solidated Revenue Fimd of the Union for the salary of the
Governor-General an annual sum of ten thousand pounds. The
salary of tiie Governor-General shall not be altered during his
continuance in office.

11. The provisions of this Act relating to the Governor-
General extend and apply to the Governor-General for the
time being or such person as the King may appoint to ad-



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SOUTH AFRICA ACT, 1909 523

minister the government of the Union. The King may
authorise the Governor-General to appoint any person to l>e
his deputy within the Union during nis temporary absence,
and in that capacity to exercise for and on behalf of the
Governor-General during such absence all such powers and
authorities vested in the Governor-General as the Governor-
General may assign to him, subject to any limitations ex-
pressed or directions given by the King ; but the appointment
of such deputy shall not affect the exercise by the Governor-
General himself of any power or function.

12. There shall be an Executive Council to advise the
Governor-General in the Government of the Union, and the
members of the council shall be chosen and summoned by the
Governor-General and sworn as executive councillors, and shall
hold office during his pleasure.

13. The provisions of this Act referring to the Governor-
General in Coimcil shall be construed as referring to the
Governor-General acting with the advice of the Executive
Council.

14. The Governor-General may appoint officers not exceed-
ing ten in number to administer such departments of State
of the Union as the Governor-General in Coimcil may estab-
lish ; such officers shall hold office during the pleasure of the
Governor-General. They shall be members of the Executive
Council and shall be the King's ministers of State for the
Union. After the first general election of members of the
House of Assembly, as hereinafter provided, no minister shall
hold office for a longer period than three months unless he is or
becomes a member of either House of Parliament.

15. The appointment and removal of all officers of the
pubUc service of the Union shall be vested in the Governor-
General in Coimcil, unless the appointment is delegated by the
Governor-General in Council or by tiiis Act or by a law of
Parliament to some other authority.

16. AU powers, authorities, and functions which at the
establishment of the Union are in any of the Colonies vested
in the Governor or in the Governor in Council, or in any
authority of the Colony, shall, as far as the same continue in
existence and are capable of being exercised after the establish-
ment of the Union, be vested in me Governor-General or in the
Governor-General in Council, or in the authority exercising
similar powers under the Union, as the case may be, except
such powers and functions as are by this Act or may by a law
of Parliament be vested in some other authority.

vj. The command in chief of the naval and military forces
withm the Union is vested in the King or in the Governor-
General as His representative.

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5^4 THE UNION

z8. Save as in section twenty-three excepted, Pretoria shall
be the seat of Government of the Union.

IV. Parliament.

19. The legislative power of the Union shall be vested in
the Parliament of the Union, herein called Parliament, which
shall consist of the King, a Senate, and a House of Assembly.

20. The Governor-General may appoint such times for
holding the sessions of Parliament as ne thinks fit, and may
also from time to time, by proclamation or otherwise, prorogue
Parliament, and may in like manner dissolve the Senate and
the House of Assembly simultaneously, or the House of
Assembly alone : provided that the Senate shall not be dis-
solved within a period of ten years after the establishment of
the Union, and provided furtiiier that the dissolution of the
Senate shall not affect any senators nominated by the Governor-
General in Council.

21. Parliament shall be simimoned to meet not later than
six months after the establishment of the Union.

22. There shall be a session of Parliament once at least in
every year, so that a period of twelve months shall not inter-
vene between the last sitting of Parliament in one session and
its first sitting in the next session.

23. Cape Town shall be the seat of the Legislature of the
Union.

Senate.

24. For ten years after the establishment of the Union the
constitution of the Senate shall, in respect of the original
provinces, be as follows :

(i) Eight senators shall be nominated by the Governor-
General in Council, and for eadi original province
eight senators shall be elected in the manner
hereinafter provided ;

(ii) The senators to be nominated by the Governor-
General in Coimcil shall hold their seats for ten
years. One-half of their number shall be
selected on the ground mainly of their thorough
acquaintance, by reason of their official experi-
ence or otherwise, with the reasonable wants
and wishes of the coloured races in South Africa.
If the seat of a senator so nominated shall become
vacant, the Governor-General in Council shall
nominate another person to be a senator, who
shall hold his seat for ten years ;

(iii) After the passing of this Act, and before the day
appointed for the establishment of the Union,



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SOUTH AFRICA ACT, 1909 525

the Governor of each of the Colonies shall summon
a special sitting of both Houses of the Legislature,
and the two Houses sitting togetiiier as one body
and presided over by the Speaker of the Legis-
lative Assembly shall elect eight persons to be
senators for the province. Such senators shall
hold their seats for ten years. If the seat of a
senator so elected shaft become vacant, the
provincial council of the province for which such
senator has been elected shall choose a person to
hold the seat until the completion of the period
for which the person in whose stead he is elected
would have held his seat.

25. Parliament may provide for the manner in which the
Senate shall be constituted after the expiration of ten years,
and unless and imtil such provision shall have been made —

(i) the provisions of the last preceding section with re-
gard to nominated senators shall continue to have
effect ;

(ii) eight senators for each province shall be elected by
the members of the provincial council of such
province together with the members of the
House of Assembly elected for such province.
Such senators shall hold their seats for ten years
unless the Senate be sooner dissolved. If the
seat of an elected senator shaU become vacant,
the members of the provincial council of the
province, together with the members of the
House of Assembly elected for such province,
shall choose a person to hold the seat until the
completion of tne period for which the person in
whose stead he is elected would have held his
seat. The Governor-General in Council shall
make regulations for the joint election of senators
prescribed in this section.

26. The qualifications of a senator shall be as follows :
He must —

{a) be not less than thirty years of age ;

(b) be qualified to be registered as a voter for the

Section of members of the House of Assembly
in one of the provinces ;

(c) have resided for five years within the limits of the

Union as existing at the time when he is elected
or nominated, as the case may be ;

(i) be a British subject of European descent ;

(e) in the case of an elected senator, be the registered
owner of immovable property within the Union



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526 THE UNION

of the value of not less than five hundred pounds

over and above any special mortgages thereon.

For the purposes of this section, residence in, and property

situated within, a colony b^ore its incorporation in the Union

shall be treated as residence in and property situated within

the Union.

27. The Senate shall, before proceeding to the dispatch of
any other business, choose a senator to be the President of the
Senate, and as often as the office of President becomes vacant
the Senate ^all again choose a senator to be the President.
The President shafl cease to hold office if he ceases to be a
senator. He may be removed from office by a vote of the
Senate, or he may resign his office by writing under his hand
addressed to the Govanor-General.

28. Prior to or during any absence of the President the
Senate may choose a senator to perform his duties in his
absence.

29. A senator may, by writing under his hand addressed
to the Govemor-Gena'al, resign his seat, which thereupon shall
become vacant. The Governor-General shall as soon as practi-
cable cause steps to be taken to have the vacancy filled.

30. The presence of at least twelve senators shaU be
necessary to constitute a meeting of the Senate for the exercise
of its powers.

31. All questions in the Senate shall be determined by a
majority of votes of senators present other than the President
or the presiding senator, who shall, however, have and exercise
a casting vote in the case of an equality of votes.

House of Assembly.

32. The House of Assembly shall be composed of members
directly chosen by the voters of the Union in electoral divisions
delimited as h^einafter provided.

33. The number of members to be elected in the original



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 63 of 70)