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G.W. Eybers.

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

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respective terms of office.

PfoKncial Councils.

70. (i) There shall be a provincial council in each province
consisting of the same number of members as are elected in the
province for the House of ^sembly : Provided that, in any

Erovinoe whose representatives in the House of Assembly shaD
e less than twenty-five in number, the provincial council shall
consist of twenty-five members.

(2) Any person qualified to vote for the election of members
of the provincial council shall be qualified to be a member of
such coimcil.

71. (i) The members of the provincial council shall be
elected by the persons qualified to vote for the election of
members of the House of Assembly in the province voting in
the same electoral divisions as are delimited for the electiw



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SOUTH AFRICA ACT, 1909 537

of members of the House of Assembly : Provided that, in any
province in which less than twenty-five members are elected
to the House of Assembly, the delimitation of the electoral
divisions, and any necessary re-allocation of members or
adjustment of electoral divisions, shall be effected by the same
conunission and on the same principles as are prescribed in
regard to the electoral divisions for the House of Assembly.

(2) Any alteration in the number of members of the pro-
vincial council, and any re-division of the province into electoral
divisions, shall come into operation at the next general election
for such council held after the completion of such re-division,
or of any allocation consequent upon such alteration, and not
earlier.

{3) The election shall take place at such times as the
administrator shall by proclamation direct, and the provisions
of section thirty-seven applicable to the election of^ members
of the House of Assembly shall mutatis mutandis apply to
such elections.

72. The provisions of sections fifty-three, fifty-four, and
fifty-five, relative to members of the House of Assembly, shall
mutatis mutandis apply to members of the provincial councils :
Provided that any member of a provincial council who shall
become a member of either House of Parliament shall there-
upon cease to be a member of such provincial council.

73. Each provincial council shall continue for three years
from the date of its first meeting, and shall not be subject to
dissolution save by effluxion of time.

74. The administrator of each province shall by proclama-
tion fix such times for holding the sessions of the provincial
council as he may think fit, and may from time to time pro-
rogue such council : Provided that tiiere shall be a session of
every provincial council once at least in every year, so that a
period of twelve months shall not intervene between the last
sitting of the council in one session and its first sitting in the
next session.

75. The provincial council shall elect from among its
members a chairman, and may make rules for the conduct of
its proceedings. Such rules shall be transmitted by the
admmistrator to the Governor-General, and shall have full
force and effect unless and until the Governor-General in
council shall express his disapproval thereof in writing ad-
dressed to the acmiinistrator.

76. The members of the provincial council shall receive
sucn allowances as shall be determined by the Governor-General
in Council.

77. There shall be freedom of speech in the provincial
council, and no member shall be liable to any action or pro-



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338 THE UNION

ceeding in any court by reason of his speech or vote in such
council.

Executive CommiUees.

78. (i) Each provincial council shall at its first meeting
after any general election elect from among its members, or
otherwise, four persons to form with the administrator, ¥^
shall be chairman, an executive committee for the province.
The members of the executive conomittee other than the
administrator shall hold office until the election of their suc-
cessors in the same manner.

(2) Such members shall receive such r^Bun^ration as the
provincial council, with the approval of the Governor-General
m Councfl, shall determine.:

J 3) A member of the provincial council shall not be dis-
ified from sitting as a member by reason of his having
been elected as a member of the executive conunittee.

(4) Any casual vacancy arising in the executive conunittee
shall be filled by election by the provincial council if then in
session or, if the council is not in session, by a person appointed
by the executive conunittee to hold office temporarily pending
an election by the coimcil.

79. The administrator and any other member of the
executive conunittee of a province, not being a member of
the provincial council, shall have the right to take part in the
proceedings of the council, but shall not have the right to vote.

80. The executive conunittee shall on behalf of the pro-
vincial council carry on the administration of provincial affairs.
Until the first election of members to serve on the executive
committee, such administration shall be carried on by the
administrator. Whenever there are not sufficient members
of the executive committee to form a quorum according to
the rules of the committee, the administrator shall, as soon as
practicable, convene a meeting of the provincial council for
the purpose of electing members to fifi the vacancies, and
rnitil such election the administrator shall carry on the ad-
ministration of provincial affairs.

81. Subject to the provisions of this Act, all powers,
authorities, and functions which at the establishment of the
Union are in any of Uhe Colonies vested in or exercised by
the Governor or the Governor in Council, or any minister of
the Colony, shall after such estabUshment be vested in the
executive committee of the province so far as such powers,
authorities, and functions relate to matters in respect of
which the provincial council is competent to make ordinances.

82. Questions arising in the executive conunittee shall be
determined by a majority of votes of the members present, and,



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SOUTH AFRICA ACT, 1909 539

in case of an equality of votes, the administrator shall have
also a casting vote. Subject to the approval of the Governor-
General in (x)uncil, the executive committee may make rules
for the conduct of its proceedings.

83. Subject to the provisions of any law passed by Parlia-
ment regulating the conditions of appointment, tenure of office,
retirement and superannuation of public officers, the executive
conmiittee shall have power to appoint such officers as may be
necessary, in addition to officers assigned to the province by the
Governor-General in Council under the provisions of this Act,
to carry out the services entrusted to them and to make and
enforce regulations for the organisation and discipline of such
officers.

84. In regard to all matters in respect of which no powers
are reserved or delegated to the provincial council, the ad-
ministrator shall act on behalf of the Governor-General in
Council when required to do so, and in such matters the
administrator may act without reference to the other members
of the executive conunittee.

Powers of Provincial Councils.

85. Subject to the provisions of this Act and the assent
of the Governor-General in Council as hereinafter provided,
the provincial council may make ordinances in rdation to
matters coming within the following classes of subjects (that
is to say) :

(i) Direct taxation within the province in order to raise
a revenue for provincial purposes :

(ii) The borrowing of money on the sole credit of the
province with the consent of the Governor-
General in Council and in accordance with
regulations to be framed by Parliament :

(iii) Education, other than higher education, for a
period of five years and thereafter until Parlia-
ment otherwise provides :

(iv) Agriculture to the extent and subject to the con-
ditions to be defined by Parliament :

(v) The establishment, maintenance, and management
of hospitals and charitable institutions :

(vi) Municipal institutions, divisional councils, and
other local institutions of a similar nature :

(vii) Local works and undertakings within the province,
other than railwa}^ and harbours and other than
such works as extend beyond the borders of the
province, and subject to the power of Parliament
to declare any work a national work and to pro-



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540 THE UNION

vide for its construction by arrangement with
the provincial council or otherwise :
(viii) Roads, outspans, ponts, and bridges, other than
bridges connecting two provinces :

(ix) Markets and pounds :

(x) Fish and game preservation :

(xi) The imposition of punishment by fine, penalty, or
imprisonment for enforcing any law or any
orainance of the province made in relation to
any matter coming within any of the classes of
subjects enumerated in this section :

(xii) Generally all matters which, in the opinion of the
Governor-General in Council, are of a merely
local or private nature in the province :
(xiii) All other subjects in respect of which Pariiament
shall by any law delegate the power of making
ordinances to the provincial council.

86. Any ordinance made by a provincial council shall have
effect in and for the province as long and as far only as it is
not repugnant to any Act of Parliament.

87. A provincial council may recommend to Parliament the
passing of any law relating to any matter in respect of which
such council is not competent to make ordinances.

88. In regard to any matter which requires to be dealt
with by means of a private Act of Parliament, the provincial
council of the province to which the matter relates may, subject
to such procedure as shall be laid down by Parliament, take
evidence by means of a Select Committee or otherwise for and
against the passing of such law, and, upon receipt of a report
from such council, together with the evidence upon which it
is founded. Parliament may pass such Act without further
evidence being taken in support thereof.

89. A provincial revenue fund shall be formed in every
province, mto which shall be paid all revenues raised by or
accruing to the provincial council and all moneys paid over by
the Governor-General in Council to the provincial council.
Such fund shall be appropriated by the provincial council by
ordinance for the purposes of the provmcial administration
generally, or, in the case of monej^ paid over by the Governor-
General in Council for particular purposes, then for such pur-
poses, but no such ordinance shall be passed by the provincial
council unless the administrator shall have first recommended
to the council to make provision for the specific service for
which the appropriation is to be made. No money shall be
issued from the provincial revenue fund except in accordance
with such appropriation and imder warrant signed by the
administrator : Provided that, until the expiration of one

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SOUTH AFRICA ACT, 1909 541

month after the first meeting of the provincial council, the
administrator may expend such monejrs as may be necessary
for the services of the province.

90. When a proposed ordinance has been passed by a
provincial council it shall be presented by the administrator to
the Governor-General in Coimcil for his assent. The Governor-
General in Council shall declare within one month from the
presentation to him of the proposed ordinance that he assents
thereto, or that he withholds assent, or that he reserves the
proposed ordinance for further consideration. A proposed
ordinance so reserved shall not have any force imless and until,
within one year from the day on which it was presented to the
Govemor-Cxeneral in Council, he makes known by proclamation,
that it has received his assent.

91. An ordinance assented to by the Governor-General in
Council and promulgated by the administrator shall, subject to
the provisions of this Act, have the force of law within the
provmce. The administrator shall cause two fair copies of
every such ordinance, one being in the English and the other
in the Dutch language (one of which copies shall be signed by
the Govemor-GeneraJ), to be enrolled of record in the office
of the Registrar of the Appellate Division of the Supreme Court
of South Africa ; and such copies shall be conclusive evidence
as to the provisions of such ordinance, and, in case of conflict
between the two copies thus deposited, that signed by the
Governor-General shall prevail,

Miscellaneous.

92. (i) In each province there shall be an auditor of
accounts to be appointed by the Governor-General in Council.

(2) No such auditor shall be removed from office excq;>t
by the Governor-General in Council for cause assigned, which
shall be communicated by message to both Houses of Parlia-
ment within one week after the removal, if Parliament be
then sitting, and, if Parliament be not sitting, then within one
week after the commencement of the next ensuing session.

(3) Each such auditor shall receive out of the Consolidated
Revenue Fund such salaiv as the Governor-General in Council,
with tiie approval of Parliament, shall determine.

(4) Each such auditor shall examine and audit the accounts
of the province to which he is assigned subject to such regula-
tions and orders as may be framed by the Governor-General
in Council and approved by Parliament, and no warrant signed
by the administrator authorising the issuing of money shall
have effect unless countersigned by such auditor.

93. Notwithstanding anything in this Act contained, all
powers, authorities, and functions lawfully exercised at the



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542 THE UNION

establishment of the Union by divisional or municipal councils,
or any other duly constituted local authority, shall be and
remain in force until varied or withdrawn by Parliament or
by a provincial council having power in that behalf.
94. The seats of provincial government shall be :

For the Cape of Good Hope . . Cape Town.

For Natal .... Pietomaritzburg.

For the Transvaal . Pretoria.

For the Orange Free State . . Bloemfontein.

VI. The Supreme Court of South Africa.

p5. There shall be a Supreme Court of South Africa con-
sistmg of a Chief Justice of South Africa, the ordinary judges
of appeal, and the other judges of the several divisions of the
Supreme Court of South Africa in the provinces.

96. There shall be an Appellate Division of the Supreme
Court of South Africa, consistmg of the Chief Justice of South
Africa, two ordinary judges of appeal, and two additional
judges of appeal. Such additional judges of appeal shall be
assigned by the Governor-General in Council to tne Appdlate
Division from any of the provincial or local divisions of the
Supreme Court of South Africa, but shall continue to perform
their duties as judges of their respective divisions when tfadr
attendance is not required in the Appellate Division.

97. The Governor-General in Council may, during the
absence, iUness, or other incapacity of the Chief Justice of
South Africa, or of any ordinary or additional judge of appeal,
appoint any other judige of the Supreme Court of South Airica
to act temporarily as such chief justice, ordinary judge of
appeal, or additional judge of appeal, as the case may be.

98. (i) The several supreme courts of the Cape of Good
Hope, Natal, and the Transvaal, and the High Court of the
Orange River Colony shall, on the establishment of the Union,
become provincial divisions of the Supreme Court of South
Africa within their respective provinces, and shall each be
presided over by a judge-president.

(2) The court of the eastern districts of the Cape of Good
Hope, the High Court of Griqualand, the High Court of Wit-
watersrand, and the several circuit courts, shall become local
divisions of the Supreme Court of South Africa within the
respective areas of their jurisdiction as existing at the establi^-
ment of the Union.

(3) The said provincial and local divisions, referred to in
this Act as superior courts, shall, in addition to any original
jurisdiction exercised by the corresponding courts of the
Colonies at the establishment of the Union, have jurisdiction
in all matters :



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SOUTH AFRICA ACT, 1909 543

(a) in which the Government of the Union or a person
suing or being sued on behalf of such Govern-
ment is a party :
(6) in which the vahdity of any provincial ordinance
shall come into question.
(4) Unless and until Parliament shall otherwise provide,
the said superior courts shall, mutatis mutandis, have the same
jurisdiction in matters affecting the validity of elections of
members of the House of Assembly and provincial councUs as
the corresponding courts of the Colonies nave at the establish-
ment of the Union in regard to parliamentary elections in such
Colonies respectively.

99. All judges of the supreme courts of the Colonies,
including the High Court of the Orange River Colony, holding
office at the establishment of the Union shall on such establi^-
ment become judges of the Supreme Court of South Africa,
assigned to the divisions of the Supreme Court in the respective
provinces, and shall retain all such rights in regard to salaries
and pensions as they may possess at the establishment of the
Union. The Chief Justices of the Colonies holding office at
the estabUshment of the Union shall on such establishment
become the Judges-Presidenttof the divisions of the Supreme
Court in the respective provinces, but shall so long as they
hold that office retain the title of Chief Justice of their respective
provinces.

100. The Chief Justice of South Africa, the ordinary judges
of appeal, and all other judges of the Supreme Court of Soutii
Africa to be appointed after the establishment of the Union
shall be appointed by the Governor-General in Council, and
shall receive such remuneration as Parliament shall prescribe,
and their remuneration shall not be diminished during their
continuance in office.

loi. The Chief Justice of South Africa and other judges
of the Supreme Court of South Africa shaU not be removed
from office except by the Governor-General in Council on an
address from both Houses of Parliament in the same session
praying for such removal on the ground of misbehaviour or
mcapacity.

102. Upon any vacancy occurring in any division of the
Supreme Court of South Africa, other than the Appellate
Division, tiie Govemor-Genaral in Council may, in case he
shall consider that the number of judges of such court may
with advantage to the public interest be reduced, postpone
filling tlie vacancy until Parliament shall have determined
whether such reduction shall take place.

103. In every civil case in which, according to the law in
force at the establishment of the Union, an appeal might have



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544 THE UNION

been made to the Supreme Court of any of the Colonies from
a Superior Court in any of the Colonies, or from the High
Court of Southern Rhodesia, the appeal shall be made only
to tiie Appdlate Division, except in cases of orders or judg-
ments given by a single judge, upon applications by way of
motion or petition or on summons for provisional sentence or
jud^ents as to costs only, which by law are left to the dis-
cretion of the court. The appeal from any such orders or
judgments, as well as any appeal in criminai cases from any
such Superior Court, or the special refarence by any such court
of any point of law in a criminal case, shall be made to the
provincial division corresponding to the court which before the
establishment of the Union would have had jurisdiction in the
matter. There shall be no further appeal against any judg-
ment given on appeal by such provincial division except to
tiie Appellate Division, and then only if the Appellate Division
shall have given special leave to appeal.

104. In every case, civil or criminal, in which at the estab-
lishment of the Union an appeal might have oeen made from
Uie Supreme Court of any of the Colonies or from the High
Court of the Orange River Colony to the King in Council, the
appeal shall be made only to the* Appellate Division : Provided
that the right of appeal in any civil suit shall not be limited
by reason only of tne value of the matter in dispute or the
amount claimed or awarded in such suit.

105. In every case, civil or criminal, in which at the estab-
lishment of the Union an appeal might have been made from
a court of resident magistrate or other inferior court to a
superior court in any of the Colonies, the appeal shall be made
to the corresponding division of the Supreme Court of South
Africa ; but there shall be no further appeal against any
judgment given on appeal by such division except to the
Appellate Division, and then only if the Appellate Division
slmll have given special leave to appeal.

106. There shall be no appeal from the Supreme Court of
South Africa or from any division thereof to the King in
Coimcil, but nothing herem contained shall be construed to
impair any right which the King in Council may be pleased
to exercise to grant special leave to appeal from the Appellate
Division to the King in Coimcil. Parnament may make laws
limiting the matters in respect of which such special leave may
be asked, but Bills containing any such limitation shall be
reserved by the Gk)vemor-General for the significance of His
Majesty's pleasure: Provided that nothing in this section
shall affect any right of appeal to His Majesty in Council from
any judgment given by the Appellate Division of the Supreme



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SOUTH AFRICA ACT, 1909 545

Court under or in virtue of the Colonial Courts of Admiralty
Act, 1890.1

107. The Chief Justice of South Africa and the ordinary
judges of appeal may, subject to the approval of the Governor-
General in Council, make rules for the conduct of the pro-
ceedings of tlie Appellate Division and prescribing the time
and manner of makmg appeals thereto. Until such rules shall
have been promulgated, the rules in force in the Supreme
Court of the Cape of Good Hope at the establishment of the
Union shall mutaUs mutandis apply.

108. The chief justice and other judges of the Supreme
Court of South Africa may, subject to Sie approval of the
Governor-General in Coimcil, frame rules for the conduct of
the proceedings of the several provincial and local divisions.
Until such rules shall have been promulgated, the rules in
force at the establishment of the Union in the respective
courts which become divisions of the Supreme Court of South
Africa shall continue to apply therein.

109. The Appellate Division shall sit in Bloemfontein, but
may from time to time for the convenience of suitors hold its
sittings at other places within the Union.

110. On the hearing of appeals from a court consisting of
two or more judges, five judges of the Appellate Division shall
form a quorum, but, on the hearing of appeals from a single
judge, three judges of the Appellate Division shall form a
quorum. No judge shall take part in the hearing of any appeal
against the judgment given in a case heard before him.

111. The process of the Appellate Division shall run
throughout the Union, and all its judgments or orders shall
have full force and effect in every province, and shall be
executed in like manner as if they were original judgments
or orders of the provincial division of the Supreme Court of
South Africa in such province.

112. The registrar of every provincial division of the
Supreme Court of South Africa, if thereto reauested by any
party in whose favour any judgment or order nas been given
or made by any other division, shall, upon the deposit with
him of an authenticated copy of such judgment or order and
on proof that the same remams unsatisfied, issue a writ or other
process for the execution of such judgment or order, and there-
upon such writ or other process shall be executed in like
manner as if it had been originally issued from the division
of which he is registrar.

113. Any provincial or local division of the Supreme Court
of South Amca to which it may be made to appear that any
civil suit pending therein may be more convemently or fitly

* 53 & S4 Vict, c 27.

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546 THE UNION

heard or determined in another division may order the same
to be removed to such other division, and thereupon such
last-mentioned division may proceed with such smt in like
manner as if it had been originally commenced therein.

114. The Governor-General in Council may appoint a



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 65 of 70)