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registrar of the Appellate Division and such other officers
thereof as shall be required for the proper dispatch of the
business thereof.

115. (i) The laws regulating the admission of advocates
and attomej^ to practise before any superior court of any of
the Colonies shall mutatis mutandis apply to the admission of
advocates and attorneys to practise in the corresponding division
of the Supreme Court of South Africa.

(2) An advocates and attorneys entitled at the establish-
ment of the Union to practise in any superior court of any of
the Colonies shall be entitled to practise as such in the corre-
sponding division of the Supreme Court of South Africa.

(3) All advocates and attomej^ entitled to practise before
any provincial division of the Supreme Court 01 South Africa
shall be entitled to practise before the Appellate Division.

116. All suits, avU or criminal, penmng in any superior
court of any of the Colonies at the establishment of the Union
shall stand removed to the corresponding division of the
Supreme Court of South Africa, which shall have jurisdiction
to near and determine the same, and all judj^ents and orders
of any superior court of any of the Colonies given or made
before the establishment of the Union shall have the same
force and effect as if they had been given or made by the
corresponding division of the Supreme Court of South Africa.
All appeals to the King in Council which shall be pending at
the establishment of the Union shall be proceeded with as if
this Act had not been passed.

VII. Finance and Railways.

117. All revenues, from whatever source arising, over
which the several Colonies have at the establishment of the
Union power of appropriation, shall vest in the Governor-
General in Council. There shall be formed a Railway and
Harbour Fund, into which shall be paid all revenues raised
or received by the Governor-General m Council from the ad-
ministration of the railways, ports, and harbours, and such
fund shall be appropriated by Parliament to the purposes of
the TsUwdLys, ports, and harbours in the manner prescribed by
this Act. There shall also be formed a Consolidated Revenue
Fund, into which shall be paid all other revenues raised or
received by the Gk)vemor-General in Council, and such fund
shall be appropriated by Parliament for the purposes of the



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SOUTH AFRICA ACT, 1909 547

Union in the manner prescribed by this Act, and subject to
the charges iniposed thereby.

118. The Governor-General in Council shall, as soon as
may be after the establishment of the Union, appoint a com-
mission, consisting of one representative from each province,
and presided over by an officer from the Imperial Service, to
institute an inquiry into the financial relations which should
exist between the Union and the provinces. Pending the com-
pletion of that inquiry and until Parliament otherwise provides,
there shall be paid annually out of the Consolidated Revenue
Fund to the aoministrator of each province :

(a) an amoimt equal to the stun provided in the esti-
mates for education, other than higher education,
in respect of the financial year, 1908-9, as voted
by the Legislature of the corresponding colony
during the year nineteen hundred and eight ;
{b) such further sums as the Governor-General in
Coimcil may consider necessary for the due
performance of the services and duties assigned
to the provinces respectively.
Until such inquiry shall be completed and Pai;}iament shall
have made other provision, the executive committees in the
several provinces shall annually submit estimates of their
expenditure for the approval of the Governor-General in
Cotmcil, and no expenditure shall be incurred by any executive
conunittee which is not provided for in such approved estimates.

119. The annual interest of the public debts of the Colonies
and any sinking funds constituted by law at the establishment
of the Union shall form a first charge on the Consolidated
Revenue Fund.

120. No money shall be withdrawn from the Consolidated
Revenue Ftmd or the Railway and Harbour Fund except under
appropriation made by law. But, until the expiration of two
months after the first meeting of Parliament, the Governor-
General in Council may draw therefrom and expend such
moneys as may be necessary for the public service, and for
railway and harbour administration respectivdy.

121. All stocks, cash, bankers' balances, and securities for
money belonging to each of the Colonies at the establishment
of the Union shall be the property of the Union : Provided
that the balances of any fimds raised at the establishment of
the Union by law for any special purposes in any of the Colonies
shall be deemed to have been appropriated by Parliament for
the special purposes for which thev have been provided.

122. Crown lands, public works, and all property through-
out the Union, movable, or immovable, and all rights of what-
ever description belonging to the several Colonies at the

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548 THE UNION

establishment of the Union, shall vest in the Governor-General
in Council subject to any debt or liability specifically chained
thereon.

123. All rights in and to mines and minerals, and all rights
in connection with the searching for, working for, or disposing
of, minerals or precious stones, which at the establishment of
the Union are vested in the Government of any of the Colonies,
shall on such establishment vest in the Governor-General in
Council.

124. The Union shall assume all debts and liabilities of
the Colonies existing at its establishment, subject,, notwith-
standing any other provision contained in this Act, to the
conditions imposed by any law under which such debts or
liabilities were raised or incurred, and without prejudice to
any rights of security or prioritv in respect of the payment of
pnncipal, interest, smking fund, and other charges conferred
on the creditors of any of the Colonies, and may, subject to
such conditions and rights, convert, renew, or consolidate such
debts.

125. All ports, harbours, and railways belonging to the
several Colonies at the establishment of the Union shall from
the date thereof vest in the Governor-General in Coundl. No
railway for the conveyance of public traffic, and no port,
harbour, or similar work, shall be constructed without the
sanction of Parliament.

126. Subject to the authority of the Governor-General in
Council, the control and management of the railways, ports,
and harbours of the Union shall be exercised tiirough a board
consisting of not more than three commissioners, who shall be
appointed by the Governor-General in Council, and a minister
of State, who shall be chairman. Each commissioner shall
hold office for a period of five years, but may be reappointed.
He shall not be removed before the expiration of his period of
appointment, except by the Governor-General in Council for
cause assigned, which shall be communicated by message to
both Houses of Parliament within one week after the removal,
if Parliament be then sitting, or, if Parliament be not sitting,
then within one week after the commencement of the next
ensuing session. The salaries of the commissioners shall be
fixed by Parliament and shall not be reduced during their
respective terms of office.

127. The railways, ports, and harbours of the Union shall
be administered on business principles, due regard being had
to agricultural and industrial devdopment wiSiin tiie Union
and promotion, by means of cheap transport, of the settlement
of an agricultural and industrial population in the inland
portions of all provinces of the Union. So far as may be, the



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SOUTH AFRICA ACT, 1909 549

total earnings shall be not more than are sufficient to meet
the necessary outlays for working, maintenance, betterment,
depreciation, and the payment of interest due on capital not
bemg capital contributed out of railway or harbour revenue,
and not including any sums pa^^able out of the Consolidated
Revenue Fund in accordance with the provisions of sections
one himdred and thirty and one himdred and thirty-one. The
amount of interest due on such capital invested shall be paid
over from the Railway and Harbour Fund into the Consolidated
Revenue Fund. The Governor-General in Council shall give
effect to the provisions of this section as soon as and at such
time as the necessary administrative and financial arrange-
ments can be made, but in any case shall give full effect to
them before the expiration of four years from the establishment
of the Union. During such period, if the revenues accruing
to the Consolidated Revenue Fvmd are insufficient to provide
for the general service of the Union, and if the earnings accruing
to the Railway and Harbour Fimd are in excess of tiie outlays
specified herem. Parliament may by law appropriate such ex-
cess or any part thereof towards the general expenditure of
the Union, and all sums so appropriated shall be paid over to
the Consolidated Revenue Fund.

128. Notwithstanding an5rthing to the contrary in the last
preceding section, the Board may establish a fund out of
railway and harbour revenue to be used for maintaining, as
far as may be, uniformity of rates notwithstanding fluctuations
in traffic.

129. All balances standing to the credit of any fund estab-
lished in any of the Colonies for railway or harbour purposes at
the establidiment of the Union shall be under the sole control
and management of the Board, and shall be deemed to have
been appropriated by Parliament for the respective purposes
for which they have been provided. -

130. Every proposal for the construction of any port or
harbour works or of any line of railway, before being sub-
mitted to Parliament, dtall be considered by the Board, which
shall report thereon, and shall advise whether the proposed
works or line of railway should or should not be constructed.
If any such works or line shall be constructed contrary to the
advice of the Board, and if the Board is of opinion that the
revenue derived from the operation of such works or line will
be insufficient to meet the costs of working and maintenance,
and of interest on the capital invested therein, it shall frame an
estimate of the annual loss which, in its opinion, will result
from such operation. Such estimate diall be examined by the
Controller and Auditor-General, and when approved by him
the amount thereof shall be paid over annually from the Con-



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550 THE UNION

solidated Revenue Fund to the Railway and Harbour Fund ;
Provided that, if in anv year the actual loss incurred, as calcu-
lated by the Board and certified by the Controller and Auditor-
General, is less than the estimate framed by the Board, the
amount paid over in respect of that year shall be reduced
accordingly so as not to exceed the actual loss incurred. In
csdculating the loss arising from the operation of any such
work or Ime, the Board shall have r^[ard to the value of any
contributions of traffic to other parts of the system which
may be due to the operation of such work or line.

131. If the Board shall be required by the Governor-General
in Council or under any Act of Parliament or resolution of
both Houses of Parliament to provide any services or facilities
either gratuitously or at a rate of charge which is insufficient
to meet the costs involved in the provision of such services or
facilities, the Board shall at the end of each financial year
present to Parliament an account approved by the Controller
and Auditor-General, showings as nearly as can be ascertained,
the amount of the loss incurred by reason of the provision of
such services and facilities, and such amount shall be paid out
of the Consolidated Revenue Fund to the Railway and Harbour
Fund.

132. The Governor-General in Council shall appoint a
Controller and Auditor-General who shall hold office during
good behaviour : provided that he shall be removed by the
Governor-General in Council on an address praying for such
removal presented to the Governor-General by both Houses of
Parliament : provided further that when Parliament is not in
session the Governor-General in Council may suspend such
officer on the ground of incompetence or misbehaviour ; and,
when and so often as such suspension shall take place, a full
statement of the circumstances shall be laid before both Houses
of Parliament within fourteen days after the comm^icement of
its next session ; and, if an adckess shall at any time during
the session of Parliament be presented to the Governor-General
by both Houses praying for the restoration to office of such
officer, he shall be restored accordingly ; and if no such address
be presented the Governor-General shall confirm such suspension
and shall declare the office of Controller and Auditor-General
to be, and it shall thereupon become, vacant. Until Parlia-
ment shall otherwise provide, the Controller and Auditor-
General shall exercise such powers and functions and under-
take such duties as may be assigned to him by the Governor-
General in Council by regulations framed in that bdialf .

133- In order to compensate Pietermaritzburg and Bloem-
fontein for any loss sustained by them in the form of diminu-
tion of prosperity or decreased rateable value by reason of



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SOUTH AFRICA ACT, 1909 551

their ceasing to be the seats of government of their respective
colonies, there shall be paid from the Consolidated Revenue
Fund for a period not exceeding twenty-five years to the
municipal councils of such towns a grant of two per centum per
annum on their municipal debts, as existing on the thirty-nrst
day of January nineteen hundred and nine, and as ascertained
by the Controller and Auditor-General. The Conunission
appointed under section one hundred and eighteen shall, after
due inquiry, report to the Governor-General in Council what
compensation should be paid to the municipal councils of Cape
Town and Pretoria for the losses, if any, similarly sustained by
them. Such compensation shaU be paid out of the Consoh-
dated Revenue Fund for a pmod not exceeding twenty-five
years, and shall not exceed one per centum per annum on the
respective municipal debts of such towns as existing on the
thirty-first January nineteen hundred and nine, and as ascer-
tained by the Controller and Auditor-General. For the pur-
poses of this section Cape Town shall be deemed to include the
municipalities of Cape Town, Green Point, and Sea Point,
Woodstock, Mowbray, and Rondebosch, Claremont, and
Wynberg, and any grant made to Cape Town shall be payable
to the councils of such municipalities in proportion to their
respective debts. One half of any such grants shall be applied
to the redemption of the municipal debts of such towns re-
spectively. At any time after the tenth annual grant has been
paid to any of such towns the Governor-General in Council,
with the approval of Parliament, may after due inquiry with-
draw or reduce the grant to such town.

VIII. General.

134. The election of senators and of members of
executive committees of the provincial councils as provided
in this Act shall, whenever such election is contested, be accord-
ing to the principle of proportional representation, each voter
having one transferable vote. The Govanor-General in Council,
or, in the case of the first election of the Senate, the Governor
in Council of each of the Colonies, shall frame regulations pre-
scribing the method of voting and of transferring and counting
votes and the duties of returning officers in connection there-
with, and such regulations or any amendments thereof after
being duly promulgated shall have full force and efifect unless
and until Parliament shall otherwise provide.

135. Subject to the provisions of this Act, all laws in force
in the several Colonies at the establishment of the Union shall
continue in force in the respective provinces until repealed or
amended by Parliament, or by the provincial councils in matters
in respect of which the power to make ordinances is reserved



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552 THE UNION

or delegated to them. All l^al commissions in the several
Colonies at the establishment of the Union shall continue as if
the Union had not been established.

136. There shall be free trade throughout the Union, but
until Parliament otherwise provides the duties of custom and
of excise leviable under the laws existing in any of the Colonies
at Hie establishment of the Union shall remain in force.

137. Both the English and Dutch languages shall be official
languages of the Union, and shall be treated on a footing of
equality, and possess and enjoy equal freedom, rights, and
privileges ; alT records, journals, and proceedings of Parlia-
ment ^all be kept in both languages, and all Bills, Acts, and
notices of general public importance or interest issued by the
Government of the Union shall be in both languages.

138. All persons who have been naturalised in any of the
Colonies shall be deemed to be naturalised throughout the Union.

139. The administration of justice througnout the Union
shall be under the control of a minister of State, in whom shall
be vested aU powers, authorities, and functions which shall
at the establishment of Hie Union be vested in the Attorneys-
General of the Colonies, save and except all powers, authorities,
and functions relating to the prosecution of crimes and offences,
which shall in each province be vested in an officer to be
appointed by the Governor-General in Council, and styled the'
Attomey-G^eral of tiie province, who shall also discharge
such odier duties as may be assigned to him by the Governor-
General in Council : Provided that in the province of the Cape
of Good Hope the Solicitor-General for the Eastern Districts
and the Crown Prosecutor for Griqualand West shall re-
spectively continue to exercise the powers and duties by law
vested in them at the time of the establishment of the Union.

140. Subject to the provisions of the next succeeding
section, all officers of the public service of the Colonies shall
at the establishment of the Union become officers of the Union.

141. (i) As soon as possible after the establishment of
the Union, the Governor-General in Council shall appoint a
public service commission to make recommendations for such
reorganisation and readjustment of the departments of the
pubuc service as may be necessary. The conunission shaU
also make recommendations in regard to the assignment of
officers to the several provinces.

(2) The Governor-General in Coimcil may after such com-
mission has reported assign from time to time to each province
such officers as may be necessary for the proper discnarge of
the services reserved or del^ated to it, and such officers on
being so assigned shall become officers of the province.
Pending the assignment of such officers, the Governor-General



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SOUTH AFRICA ACT, 1909 553

in Council may place at the disposal of the provinces the
services of such omcers of the Union as may be necessary.

(3) The provisions of this section shall not apply to any
service or department under the control of the Railway and Har-
bour Board, or to any person holding oihce under the Board.

142. After the establishment of the Union the Governor-
General in Council shall appoint a permanent public service
commission with such powers and duties renting to the
appointment, discipline, retirement, and superannuation of
public officers as Parliament shall determine.

143. Any officer of the public service of any of the Colonies
at the establishment of the Union who is not retained in the
service of the Union or assigned to that of a province shall be
entitled to receive such pension, gratuity, or other compensation
as he would have received in lUce circumstances if tiie Union
had not been established.

144. Any officer of the public service of any of the Colonies
at the establishment of the Union who is retained in the
service of the Union or assigned to that of a province shall
retain all his existing and accruing rights, and shall be entitled
to retire from the service at the time at which he would have
been entitled by law to retire, and on the pension or retiring
allowance to which he would have been entitled by law in
like circumstances if the Union had not been established.

145. The SCTvices of officers in the public service of any
of the Colonies at the establidiment of tne Union shall not be
dispensed with by reason of their want of knowledge of either
the English or Dutch language.

146. Any permanent officer of the Legislature of any of the
Colonies who is not retained in the service of the Union, or as-
signed to that of any province, and for whom no provision shall
have been made by such Legislature, shall be entitled to such
pension, gratuity, or compensation as Parliament may determine.

147. The control and administration of native affairs and
of matters specially or differentially affecting Asiatics through-
out the Umon shall vest in the Gfovemor-General in Council,
who shall exercise all special powers in regard to native
administration hitherto vested in the Governors of the Colonies
or exercised by them as supreme chiefs, and any lands vested
in the Governor or Governor and Executive Council of any
colony for the purpose of reserves for native locations shall
vest in the Governor-General in Coimcil, who shall exercise all
special powers in relation to such reserves as may hitherto have
been exerciseableby any such Govonor or Governor and Execu-
tive Council, and no lands set aside for the occupation of natives
which cannot at the establishment of the Union be alienated ex-
cept by an Act of the Colonial Legislature shall be alienated or

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554 THE UNION

in any way div^ed from the purposes for vrbich they are set
apart except under the authority of an Act of Parliament.

148. (i) All rights and obligations under any conventions
or agreements which are binding on any of tibe G>lonies shall
devolve upon the Union at its establishment.

(2) The provisions of the railway agreement betwe^i the
Governments of the Transvaal, the Cape of Good Hope and
Natal, dated the second of February, nineteen hundred and
nine, shall, as far as practicable, be given effect to by the
Government of the Union.

IX. New Provinces and TERRrroRiES.

149. Parliament may alta: the boundaries of any province,
divide a province into two or more provinces, or form a new
province out of provinces within the Union, on the petition of
the provincial council of every province whose boundaries are
affected thereby.

150. The lung, with the advice of the Privy G>uncil, may
on addresses from the Houses of Parliament of the Union
admit into the Union the territories administered by the
British South Africa Company on such terms and conchtions
as to representation and otherwise in each case as are expressed
in the addresses and approved by the King, and the provisions
of any Order in Council in that behalf shall have dSect as if
they had been enacted by the Parliament of the United
Kingdom of Great Britain and Ireland.

151. The King, with the advice of the Privy Council, may,
on addresses from the Houses of Parliament of the Union,
transfer to the Union the ^vemment of any territories, other
than the territories administered by the British South Africa
Company, belonging to or under the protection of His Majesty,
and inhabited wholly or in part by natives, and upon sudi
transfer the Governor-General in Council may und^take the
government of such territory upon the terms and conditions
embodied in the Schedule to this Act.

X. Amendment of Act.

152. Parliament may by law repeal or alter any of the

f>rovisions of this Act : Provided that no provision thereof,
or the operation of which a definite period of time is pre-
scribed, shall during such period be repealed or altered : And
provided further that no repeal or alteration of the provisions
contained in this section, or in sections thirty-three and thirty-
four (until the number of members of the House of Assembly has
reached the limit therein prescribed, or until a period of ten
years has elapsed after the establishment of the Union, wfaicheva:
IS the longer period), or in sections thirty-five and one hundred



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SOUTH AFRICA ACT. 1909 555

and thirty-seven, shall be valid unless the Bill embodying such
repeal or alteration shall be passed by both Houses of Parlia-
ment sitting together, and at the third reading be agreed to by



Online LibraryG.W. EybersSelect constitutional documents illustrating South African history, 1795-1910 → online text (page 66 of 70)