From: gavan@UCT_elc.mth.uct.ac.za (Gavan Tredoux)
Subject: Re: Conscription of Whites into the SADF
Date: Sun, 26 Jul 92 17:03:09 GMT
Organization: University of Cape Town
X-Newsreader: Tin 1.1 PL4

scott@concave.cs.wits.ac.za (Scott Hazelhurst) writes:
: In <1992Jul26.151449.19302@ucthpx.uct.ac.za> gavan@UCT_elc.mth.uct.ac.za (Gavan Tredoux) writes:
: >Thanks to our inheritance of English public law, parliament is in theory
: >supreme. However, that doesn't mean the courts can't challenge acts.
: >After all, there is the question of whether the act was, in fact,
: >constitutionally passed, whether the clauses are contradictory, and
: >all sorts of other administrative law issues. There are cases where sections
: >of acts have been nullified by judging that they were so vague and broad that
: >Parliament could not possibly have intended them to be law. 
: 
: I don't think you are right here. It may be that the Supreme Court
: can rule on whther it was passed constitutionally (whether
: all the technical requirements were met, but that's about all)

Read John Dugard's well known study, called something like
Human Rights and SA Law(1980?). The current constitution cannot be ammended
without the consent of all three houses of parliament, for one, and
of course there are the language laws you mentioned. But acts of parliament
certainly can be nullified under special conditions. Assume they legislate
p and (not p). Contradiction. Assume they legislate something clearly
preposterous in some clause, granting arbitrary powers to police
constables. A judge could easily argue that the clause is so preposterous
that parliament could not possibly have intended it, didn't apply their
minds to it, and that is therefore invalid. Remeber that judges can in 
deliver any judgement they like in practice. This can spark a constitutional
crisis, parliament vs. the courts, as we had in the 1950s here. The
Appeal court determines its own jurisdiction. Even when an act of
parliament delineates that jurisdiction, the court may still declare
parliament's act ulra vires. Consider the Mines and Works Act
of (1913?) declared ultra vires in paret in the 1920s by the Transvaal Supreme
court. They could end up settling the matter by
physical force -lock the judges up, pack the court, etc. Parliament could
pass a new act and the courts could back down, as in the case of the
Mines and Works Ammendment Act of (1922?). 

: >Many liberal
: >judges built up a whole lot of cases arguing like that. Could they do the
: >same for the Defence Act? 
: 
: I don't think you're right here. What many judges did in the
: Emergency was to throw lots of emergency regulations out.
: But these regulations are delegated to the State President,
: and so do not have the same status as Ats of Parliament

This cetainly wasn't limited to emergency promulgations. Again, read
Dugard. Again, read about the constitutional crisis of the 50s. Consider
the attempted incorporation of part of South Africa (ethnic Swazis)
into Swaziland in
the early 80s, thrown out by the Appeal court. There are lots of these
cases. More often, the cases revolved around interpreting clauses so
narrowly that they became useless in practice - clauses of acts
and not only promulgations of regulations issued in terms of an act.

But certainly, the thrust of English public law is that parliament is
sovereign, it's just that the courts can always decide just how
sovereign they wish to regard it, depending on how brave and confident
they feel, how their peers will back them up, and whether they'll 
survive car bombings. The Nats packed the courts with their own people,
who were mostly strict legal positivists, which is why the courts were
so docile for long periods; the Nats controlled both through their
*personel*.

Gavan Tredoux
UCT
Newsgroups: soc.culture.african,sanet.fun
From: leveret@warren.demon.co.uk (Nick Leverton)