# South Africa Act 1909 (Brand)

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In the aftermath of the Anglo-Boer War (1899-1902), the United Kingdom annexed the South African Republic and the Orange Free State to the British Empire. These new provinces, renamed the Transvaal and the Orange River Colony respectively, were added to Britain's existing South African territories—the Cape Colony and Natal. It was British government policy to encourage these four colonies to come together in closer union; after the grant of self-government to the Transvaal and Orange River Colony in 1907, this aspiration was one that was also increasingly held by the Afrikaner population.
These political forces resulted in the 1908 National Convention where delegates settled on the terms of a executive, legislative, and economic Union. These proposals were transmitted to the British government, who duly prepared a Bill to give effect to these wishes. The Bill was passed by Parliament on 20 September 1909 and on the same day King Edward VII formally proclaimed that the Union of South Africa would be established on 31 May 1910.
This Act, which brought into being the South African state as it is known today, served as the South African constitution until 1961, when South Africa became a republic and left the Commonwealth. Although repealed, the basic structure of the 1909 Act continued to live on in its replacement, the Republic of South Africa Constitution Act, 1961. The last vestiges of the 1909 Act finally disappeared in 1983 when the apartheid-era government enacted a new constitution, the Republic of South Africa Constitution Act, 1983.
This version of the text of the Act is drawn from RH Brand's 1909 book, The Union of South Africa. There are some minor textual differences between this version and the version published in the official Statutes of the Union of South Africa.
[9 Edw. 7. Ch. 9]

## Arrangement of Sections

I.—Preliminary.
    1. Short title.
    2. Definitions.
    3. Application of Act to King's successors.
II.—The Union.
    4. Proclamation of Union.
    5. Commencement of Act.
    6. Incorporation of Colonies into the Union.
    7. Application of Colonial Boundaries Act, &c.
III.—Executive Government.
    8. Executive power.
    9. Governor-General.
    10. Salary of Governor-General.
    11. 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.
    Senate.
       24. Original constitution of Senate.
       25. Subsequent 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 Assembly.
       32. Constitution of House of Assembly.
       33. Original number of members.
       34. Increase of number of members.
       35. Qualifications of voters.
       36. 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 the House of Assembly.
    Both Houses of Parliament.
       51. Oath of affirmation or allegiance.
       52. Members of either House disqualified from 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 Parliament.
       58. Rules of procedure.
    Powers of Parliament.
       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 Bills.
       66. Reservation of Bills.
       67. Signature and enrolment of Acts.
V.—The Provinces.
    Administrators.
       68. Appointment and tenure of office of provincial administrators.
       69. Salaries of administrators.
    Provincial Councils.
       70. Constitution of provincial councils.
       71. Qualification of provincial councillors.
       72. Application of sections 53 to 55 to provincial councillors.
       73. Tenure of office by provincial councillors.
       74. Sessions of provincial councils.
       75. Chairmen of provincial councils.
       76. Allowances of provincial councillors.
       77. Freedom of speech in provincial councils.
    Executive Committees.
       78. Provincial executive committees.
       79. Right of administrator, &c. to take part in proceedings of provincial council.
       80. Powers of provincial executive committees.
       81. Transfer of powers to provincial executive committees.
       82. Voting in executive committees.
       83. 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 legislation.
       89. Constitution of provincial revenue fund.
       90. Assent to provincial ordinances.
       91. Effect and enrolment of ordinances.
    Miscellaneous.
       92. Audit of provincial 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. Filling of temporary vacancies in Appellate Division.
    98. Constitution of provincial and local divisions of the Supreme Court.
    99. Continuation in office of existing judges.
    100. Appointment and remuneration of judges.
    101. Tenure of office by judges.
    102. Reduction in number of judges.
    103. Appeals to Appellate Division.
    104. Existing appeals.
    105. Appeals from inferior courts to provincial divisions.
    106. Provisions as to appeals to the King in Council. 53 & 54 Vict. c. 27.
    107. Rules of procedure in Appellate Division.
    108. Rules of procedure in provincial and local divisions.
    109. Place of sittings of Appellate Division.
    110. Quorum for hearing appeals.
    111. Jurisdiction of Appellate Division.
    112. Execution of processes of provincial divisions.
    113. Transfer of suits from one provincial or local division to another.
    114. Registration and officers of Appellate Division.
    115. Advocates and attorneys.
    116. Pending suits.
VII.—Finance and Railways.
    117. Constitution of Consolidated Revenue Fund and Railway and Harbour Fund.
    118. Commission of inquiry into financial relations between Union and provinces.
    119. Security for existing public debts.
    120. Requirements for withdrawal of money from funds.
    121. Transfer of Colonial property to the Union.
    122. Crown lands, &c.
    123. Mines and minerals.
    124. Assumption by Union of colonial debts.
    125. Ports, harbours, and railways.
    126. Constitution of Harbour and Railway Board.
    127. Administration of railways, ports, and harbours.
    128. Establishment of a 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. Controller and Auditor-General.
    133. Compensation of colonial capitals for diminution of prosperity.
VIII.—General.
    134. Method of voting for senators, &c.
    135. Continuation of existing colonial laws.
    136. Free trade throughout Union.
    137. Equality of English and Dutch languages.
    138. Naturalisation.
    139. Administration of justice.
    140. Existing officers.
    141. Reorganisation of public departments.
    142. Public service commission.
    143. Pensions of existing officers.
    144. Tenure of office of existing officers.
    145. Existing officers not to be dismissed for ignorance of English or Dutch.
    146. Compensation to existing officers who are not retained.
    147. Administration of native affairs, &c.
    148. Devolution on Union of rights and obligations under conventions.
IX.—New Provinces and Territories.
    149. Alteration of boundaries of provinces.
    150. Power to admit into Union territories administered by the 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.
[20 September 1909.]
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 union 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 conditions 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 administration:
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 therefore enacted by the King’s most Excellent Majesty, by and with the advice and 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. |
| Short title. | 1. | This Act may be cited as the South Africa Act, 1909. |
| Definitions. | 2. | In this Act, unless it is otherwise expressed or implied, the words “the Union” shall be taken to mean the Union of South Africa as constituted under this Act, and the words “Houses of Parliament,” “House of Parliament,” or “Parliament,” shall be taken to mean the Parliament of the Union. |
| Application of Act to King's successors. | 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. |
| | | II.—The Union. |
| Proclamation of Union. | 4. | It shall be lawful 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 year after the passing of this Act, the Colonies of the Cape of Good Hope, Natal, the Transvaal, and the Orange River Colony, hereinafter called the Colonies, shall be united in a Legislative Union under one Government under the name of the Union of South Africa. On and after the day appointed by such proclamation 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. |
| Commencement of Act. | 5. | The provisions of this Act shall, unless it is otherwise expressed or implied, take effect on and after the day so appointed. |
| Incorporation of Colonies into the Union. | 6. | The colonies mentioned in section four shall become original provinces of the Union under the names of Cape of Good Hope, Natal, Transvaal, and Orange Free State, as the case may be. The original provinces shall have the same limits as the respective colonies at the establishment of the Union. |
| Application of Colonial Boundaries Act, &c. | 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. |
| | | III.—Executive Government. |
| Executive power. | 8. | The Executive Government of the Union is vested in the King, and shall be administered by His Majesty in person or by a governor-general as His representative. |
| Governor-General. | 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. |
| Salary of Governor-General. | 10. | There shall be payable to the King out of the Consolidated Revenue Fund of the Union for the salary of the Governor-General an annual sum of ten thousand pounds. The salary of the Governor-General shall not be altered during his continuance in office. |
| Application of Act to Governor-General. | 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 administer the government of the Union. The King may authorise the Governor-General to appoint any person to be his deputy within the Union during his 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 expressed 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. |
| Executive Council. | 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. |
| Meaning of Governor-General in Council. | 13. | The provisions of this Act referring to the Governor General in Council shall be construed as referring to the Governor-General acting with the advice of the Executive Council. |
| Appointment of ministers. | 14. | The Governor-General may appoint officers not exceeding ten in number to administer such departments of State of the Union as the Governor-General in Council may establish; 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. |
| Appointment and removal of officers. | 15. | The appointment and removal of all officers of the public service of the Union shall be vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by this Act or by a law of Parliament to some other authority. |
| Transfer of executive powers to Governor-General in Council. | 16. | All 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 establishment of the Union, be vested in the 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. |
| Command of naval and military forces. | 17. | The command in chief of the naval and military forces within the Union is vested in the King or in the Governor-General as His representative. |
| Seat of Government. | 18. | Save as in section twenty-three excepted, Pretoria shall be the seat of Government of the Union. |
| | | IV.—Parliament. |
| Legislative power. | 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. |
| Sessions of Parliament. | 20. | The Governor-General may appoint such times for holding the sessions of Parliament as he 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 dissolved within a period of ten years after the establishment of the Union, and provided further that the dissolution of the Senate shall not affect any senators nominated by the Governor-General in Council. |
| Summoning of first Parliament. | 21. | Parliament shall be summoned to meet not later than six months after the establishment of the Union. |
| Annual session of Parliament. | 22. | There shall be a session of Parliament once at least in every year so that a period of twelve months shall not intervene between the last sitting of Parliament in one session and its first sitting in the next session. |
| Seat of Legislature. | 23. | Cape Town shall be the seat of the Legislature of the Union. |
| | | SENATE. |
| Original constitution of 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 each original province eight senators shall be elected in the manner hereinafter provided: (ii) The senators to he nominated by the Governor-General in Council 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 experience 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, the Governor of each of the Colonies shall summon a special sitting of both Houses of the Legislature, and the two Houses sitting together as one body and presided over by the Speaker of the Legislative 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 shall 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. |
| Subsequent constitution of Senate. | 25. | Parliament may provide for the manner in which the Senate shall be constituted after the expiration of ten years, and unless and until such provision shall have been made— (i) the provisions of the last preceding section with regard 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 shall 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 the 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. |
| Qualifications of senators. | 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 election 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; (d) 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 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 before its incorporation in the Union shall be treated as residence in and property situated within the Union. |
| Appointment and tenure of office of President. | 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 shall again choose a senator to be the President. The President shall cease to hold office if he ceases to be a senator. He may be removed from office by vote of the Senate, or he may resign his office by writing under his hand addressed to the Governor-General. |
| Deputy President. | 28. | Prior to or during any absence of the President the Senate may choose a senator to perform his duties in his absence. |
| Resignation of senators. | 29. | A senator may, by writing under his hand addressed to the Governor-General, resign his seat, which thereupon shall become vacant. The Governor-General shall as soon as practicable cause steps to be taken to have the vacancy filled. |
| Quorum. | 30. | The presence of at least twelve senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers. |
| Voting in the Senate. | 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. |
| Constitution of 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 hereinafter provided. |
| Original number of members. | 33. | The number of members to be elected in the original provinces at the first election and until the number is altered in accordance with the provisions of this Act shall be as follows :— Cape of Good HopeFifty-one. NatalSeventeen. TransvaalThirty-six. Orange Free StateSeventeen. These numbers may be increased as provided in the next succeeding section, but shall not, in the case of any original province, be diminished until the total number of members of the House of Assembly in respect of the provinces herein provided for reaches one hundred and fifty, or until a period of ten years has elapsed after the establishment of the Union, whichever is the longer period. |
| Increase of number of members. | 34. | The number of members to be elected in each province, as provided in section thirty-three, shall be increased from time to time as may be necessary in accordance with the following provisions :— (i) The quota of the Union shall be obtained by dividing the total number of European male adults in the Union, as ascertained at the census of nineteen hundred and four, by the total number of members of the House of Assembly as constituted at the establishment of the Union: (ii) In nineteen hundred and eleven, and every five years thereafter, a census of the European population of the Union shall be taken for the purposes of this Act: (iii) After any such census the number of European male adults in each province shall be compared with the number of European male adults as ascertained at the census of nineteen hundred and four, and, in the case of any province where an increase is shown, as compared with the census of nineteen hundred and four, equal to the quota of the Union or any multiple thereof, the number of members allotted to such province in the last preceding section shall be increased by an additional member or an additional number of members equal to such multiple, as the case may be: (iv) Notwithstanding anything herein contained, no additional member shall be allotted to any province until the total number of European male adults in such province exceeds the quota of the Union multiplied by the number of members allotted to such province for the time being, and thereupon additional members shall he allotted to such province in respect only of such excess: (v) As soon as the number of members of the House of Assembly to be elected in the original provinces in accordance with the preceding subsections reaches the total of one hundred and fifty, such total shall not be further increased unless and until Parliament otherwise provides; and subject to the provisions of the last preceding section the distribution of members among the provinces shall be such that the proportion between the number of members to be elected at any time in each province and the number of European male adults in such province, as ascertained at the last preceding census, shall as far as possible he identical throughout the Union: (vi) “Male adults” in this Act shall be taken to mean males of twenty-one years of age or upwards not being members of His Majesty’s regular forces on full pay: (vii) For the purposes of this Act the number of European male adults, as ascertained at the census of nineteen hundred and four, shall be taken to be— For the Cape of Good Hope167,546 For Natal34,784 For the Transvaal106,493 For the Orange Free State41,014 |
| Qualifications of voters. | 35. | (1) Parliament may by law prescribe the qualifications which shall be necessary to entitle persons to vote at the election of members of the House of Assembly, but no such law shall disqualify any person in the province of the Cape of Good Hope who, under the laws existing in the Colony of the Cape of Good Hope at the establishment of the Union, is or may become capable of being registered as a voter from being so registered in the province of the Cape of Good Hope by reason of his race or colour only, unless the Bill be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. A Bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of Parliament. (2) No person who at the passing of any such law is registered as a voter in any province shall be removed from the register by reason only of any disqualification based on race or colour. |
| Application of existing qualifications. | 36. | Subject to the provisions of the last preceding section, the qualifications of parliamentary voters, as existing in the several Colonies at the establishment of the Union, shall be the qualifications necessary to entitle persons in the corresponding provinces to vote for the election of members of the House of Assembly: Provided that no member of His Majesty’s regular forces on full pay shall be entitled to be registered as a voter. |
| Elections. | 37. | (1) Subject to the provisions of this Act, the laws in force in the Colonies at the establishment of the Union relating to elections for the more numerous Houses of Parliament in such Colonies respectively, the registration of voters, the oaths or declarations to be taken by voters, returning officers, the powers and duties of such officers, the proceedings in connection with elections, election expenses, corrupt and illegal practices, the hearing of election petitions and the proceedings incident thereto, the vacating of seats of members, and the proceedings necessary for filling such vacancies, shall, mutatis mutandis, apply to the elections in the respective provinces of members of the House of Assembly. (2) Notwithstanding anything to the contrary in any of the said laws contained, at any general election of members of the House of Assembly, all polls shall be taken on one and the same day in all the electoral divisions throughout the Union, such day to be appointed by the Governor-General in Council. |
| Commission for delimitation of electoral divisions. | 38. | Between the date of the passing of this Act and the date fixed for the establishment of the Union, the Governor in Council of each of the Colonies shall nominate a judge of any of the Supreme or High Courts of the Colonies, and the judges so nominated shall, upon acceptance by them respectively of such nomination, form a joint commission, without any further appointment, for the purpose of the first division of the provinces into electoral divisions. The High Commissioner for South Africa shall forthwith convene a meeting of such commission at such time and place in one of the Colonies as he shall fix and determine. At such meeting the Commissioners shall elect one of their number as chairman of such commission. They shall there upon proceed with the discharge of their duties under this Act, and may appoint persons in any province to assist them or to act as assessors to the commission or with individual members thereof for the purpose of inquiring into matters connected with the duties of the commission. The commission may regulate their own procedure and may act by a majority of their number. All moneys required for the payment of the expenses of such commission before the establishment of the Union in any of the Colonies shall be provided by the Governor in Council of such colony. In case of the death, resignation, or other disability of any of the Commissioners before the establishment of the Union, the Governor in Council of the Colony in respect of which he was nominated shall forthwith nominate another judge to fill the vacancy. After the establishment of the Union the expenses of the commission shall be defrayed by the Governor-General in Council, and any vacancies shall he filled by him. |
| Electoral divisions. | 39. | The commission shall divide each province into electoral divisions, each returning one member. |
| Method of dividing provinces into electoral divisions. | 40. | (1) For the purpose of such division as is in the last preceding section mentioned, the quota of each province shall be obtained by dividing the total number of voters in the province, as ascertained at the last registration of voters, by the number of members of the House of Assembly to be elected therein. (2) Each province shall be divided into electoral divisions in such a manner that each such division shall, subject to the provisions of subsection (3) of this section, contain a number of voters, as nearly as may be, equal to the quota of the province. (3) The Commissioners shall give due consideration to— (a) community or diversity of interests; (b) means of communication; (c) physical features (d) existing electoral boundaries; (e) sparsity or density of population; in such manner that, while taking the quota of voters as the basis of division, the Commissioners may, whenever they deem it necessary, depart therefrom, but in no case to any greater extent than fifteen per centum more or fifteen per centum less than the quota. |
| Alteration of electoral divisions. | 41. | As soon as may be after every quinquennial census, the Governor-General in Council shall appoint a commission consisting of three judges of the Supreme Court of South Africa to carry out any re-division which may have become necessary as between the different electoral divisions in each province, and to provide for the allocation of the number of members to which such province may have become entitled under the provisions of this Act. In carrying out such re-division and allocation the commission shall have the same powers and proceed upon the same principles as are by this Act provided in regard to the original division. |
| Powers and duties of commission for delimiting electoral divisions. | 42. | (1) The joint commission constituted under section thirty-eight, and any subsequent commission appointed under the provisions of the last preceding section, shall submit to the Governor-General in Council— (a) a list of electoral divisions, with the names given to them by the commission and a description of the boundaries of every such division: (b) a map or maps showing the electoral divisions into which the provinces have been divided: (c) such further particulars as they consider necessary. (2) The Governor-General in Council may refer to the commission for its consideration any matter relating to such list or arising out of the powers or duties of the commission. (3) The Governor-General in Council shall proclaim the names and boundaries of the electoral divisions as finally settled and certified by the commission, or a majority thereof, and thereafter, until there shall be a re-division, the electoral divisions as named and defined shall be the electoral divisions of the Union in the provinces. (4) If any discrepancy shall arise between the description of the divisions and the aforesaid map or maps, the description shall prevail. |
| Date from which alteration of electoral divisions to take effect. | 43. | Any alteration in the number of members of the House of Assembly to be elected in the several provinces, and any re-division of the provinces into electoral divisions, shall, in respect of the election of members of the House of Assembly, come into operation at the next general election held after the completion of the re-division or of any allocation consequent upon such alteration, and not earlier. |
| Qualifications of members of House of Assembly. | 44. | The qualifications of a member of the House of Assembly shall be as follows :— He must— (a) be qualified to be registered as a voter for the election of members of the House of Assembly in one of the provinces; (b) have resided for five years within the limits of the Union as existing at the time when he is elected; (c) be a British subject of European descent. For the purposes of this section, residence in a colony before its incorporation in the Union shall be treated as residence in the Union. |
| Duration. | 45. | Every House of Assembly shall continue for five years from the first meeting thereof and no longer, hut may be sooner dissolved by the Governor-General. |
| Appointment and tenure of office of Speaker. | 46. | The House of Assembly shall, before proceeding to the despatch of any other business, choose a member to be the Speaker of the House, and, as often as the office of Speaker becomes vacant, the House shall again choose a member to be the Speaker. The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing under his hand addressed to the Governor-General. |
| Deputy Speaker. | 47. | Prior to or during the absence of the Speaker, the House of Assembly may choose a member to perform his duties in his absence. |
| Resignation of members. | 48. | A member may, by writing under his hand addressed to the Speaker, or, if there is no Speaker, or if the Speaker is absent from the Union, to the Governor-General, resign his seat, which shall thereupon become vacant. |
| Quorum. | 49. | The presence of at least thirty members of the House of Assembly shall be necessary to constitute a meeting of the House for the exercise of its powers. |
| Voting in the House of Assembly. | 50. | All questions in the House of Assembly shall be determined by a majority of votes of members present other than the Speaker or the presiding member, who shall, however, have and exercise a casting vote in the case of an equality of votes. |
| | | BOTH HOUSES OF PARLIAMENT. |
| Oath of affirmation or allegiance. | 51. | Every senator and every member of the House of Assembly shall, before taking his seat, make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the following form :- Oath. I, A.B., do swear that I will be faithful and bear true allegiance to His Majesty [here insert the name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being] His [or Her] heirs and successors according to law. So help me God. Affirmation. I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to His Majesty [here insert the name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being] His [or Her] heirs and successors according to law. |
| Members of either House disqualified from being member of the other House. | 52. | A member of either House of Parliament shall be incapable of being chosen or of sitting as a member of the other House: Provided that every minister of State who is a member of either House of Parliament shall have the right to sit and speak in the Senate and the House of Assembly, but shall vote only in the House of which he is a member. |
| Disqualifications for being a member of either House. | 53. | No person shall he capable of being chosen or of sitting as a senator or as a member of the House of Assembly who— (a) has been at any time convicted of any crime or offence for which he shall have been sentenced to imprisonment without the option of a fine for a term of not less than twelve months, unless he shall have received a grant of amnesty or a free pardon, or unless such imprisonment shall have expired at least five years before the date of his election; or (b) is an unrehabilitated insolvent; or (c) is of unsound mind, and has been so declared by a competent court; or (d) holds any office of profit under the Crown within the Union: Provided that the following persons shall not be deemed to hold an office of profit under the Crown for the purposes of this sub-section: (1) a minister of State for the Union; (2) a person in receipt of a pension from the Crown; (3) an officer or member of His Majesty’s naval or military forces on retired or half pay, or an officer or member of the naval or military forces of the Union whose services are not wholly employed by the Union. |
| Vacation of seats. | 54. | If a senator or member of the House of Assembly— (a) becomes subject to any of the disabilities mentioned in the last preceding section; or (b) ceases to be qualified as required by law; or (c) fails for a whole ordinary session to attend without the special leave of the Senate or the House of Assembly, as the case may be; his seat shall thereupon become vacant. |
| Penalty for sitting or voting when disqualified. | 55. | If any person who is by law incapable of sitting as a senator or member of the House of Assembly shall, while so disqualified and knowing or having reasonable grounds for knowing that he is so disqualified, sit or vote as a member of the Senate or the House of Assembly, he shall be liable to a penalty of one hundred pounds for each day on which he shall so sit or vote, to be recovered on behalf of the Treasury of the Union by action in any Superior Court of the Union. |
| Allowances of members. | 56. | Each senator and each member of the House of Assembly shall, under such rules as shall be framed by Parliament, receive an allowance of four hundred pounds a year, to be reckoned from the date on which he takes his seat: Provided that for every day of the session on which he is absent there shall be deducted from such allowance the sum of three pounds: Provided further that no such allowance shall be paid to a Minister receiving a salary under the Crown or to the President of the Senate or the Speaker of the House of Assembly. A day of the session shall mean in respect of a member any day during a session on which the House of which he is a member or any committee of which he is a member meets. |
| Privileges of Houses of Parliament. | 57. | The powers, privileges, and immunities of the Senate and of the House of Assembly and of the members and committees of each House shall, subject to the provisions of this Act, be such as are declared by Parliament, and until declared shall be those of the House of Assembly of the Cape of Good Hope and of its members and committees at the establishment of the Union. |
| Rules of procedure. | 58. | Each House of Parliament may make rules and orders with respect to the order and conduct of its business and proceedings. Until such rules and orders shall have been made the rules and orders of the Legislative Council and House of Assembly of the Cape of Good Hope at the establishment of the Union shall mutatis mutandis apply to the Senate and House of Assembly respectively. If a joint sitting of both Houses of Parliament is required under the provisions of this Act, it shall be convened by the Governor-General by message to both Houses. At any such joint sitting the Speaker of the House of Assembly shall preside and the rules of the House of Assembly shall, as far as practicable, apply. |
| | | POWERS OF PARLIAMENT. |
| Powers of Parliament. | 59. | Parliament shall have full power to make laws for the peace, order, and good government of the Union. |
| Money Bills. | 60. | (1) Bills appropriating revenue or moneys or imposing taxation shall originate only in the House of Assembly. But a Bill shall not be taken to appropriate revenue or moneys or to impose taxation by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties. (2) The Senate may not amend any Bills so far as they impose taxation or appropriate revenue or moneys for the services of the Government. (3) The Senate may not amend any Bill so as to increase any proposed charges or burden on the people. |
| Appropriation Bills. | 61. | Any Bill which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation. |
| Recommendation of money votes. | 62. | The House of Assembly shall not originate or pass any vote, resolution, address, or Bill for the appropriation of any part of the public revenue or of any tax or impost to any purpose unless such appropriation has been recommended by message from the Governor-General during the Session in which such vote, resolution, address, or Bill is proposed. |
| Disagreements between the two Houses. | 63. | If the House of Assembly passes any Bill and the Senate rejects or fails to pass it or passes it with amendments to which the House of Assembly will not agree, and if the House of Assembly in the next session again passes the Bill with or without any amendments which have been made or agreed to by the Senate and the Senate rejects or fails to pass it or passes it with amendments to which the House of Assembly will not agree, the Governor-General may during that session convene a joint sitting of the members of the Senate and House of Assembly. The members present at any such joint sitting may deliberate and shall vote together upon the Bill as last proposed by the House of Assembly and upon amendments, if any, which have been made therein by one House of Parliament and not agreed to by the other; and any such amendments which are affirmed by a majority of the total number of members of the Senate and House of Assembly present at such sitting shall be taken to have been carried, and if the Bill with the amendments, if any, is affirmed by a majority of the members of the Senate and House of Assembly present at such sitting, it shall be taken to have been duly passed by both Houses of Parliament: Provided that, if the Senate shall reject or fail to pass any Bill dealing with the appropriation of revenue or moneys for the public service, such joint sitting may be convened during the same session in which the Senate so rejects or fails to pass such Bill. |
| Royal Assent to Bills. | 64. | When a Bill is presented to the Governor-General for the King’s Assent, he shall declare according to his discretion, but subject to the provisions of this Act, and to such instructions as may from time to time be given in that behalf by the King, that he assents in the King’s name, or that he withholds assent, or that he reserves the Bill for the signification of the King’s pleasure. All Bills repealing or amending this section or any of the provisions of Chapter IV. under the heading “House of Assembly,” and all Bills abolishing provincial councils or abridging the powers conferred on provincial councils under section eighty-five, otherwise than in accordance with the provisions of that section, shall be so reserved. The Governor-General may return to the House in which it originated any Bill so presented to him, and may transmit therewith any amendments which he may recommend, and the House may deal with the recommendation. |
| Disallowance of Bills. | 65. | The King may disallow any law within one year after it has been assented to by the Governor-General, and such disallowance, on being made known by the Governor-General by speech or message to each of the Houses of Parliament or by proclamation, shall annul the law from the day when the disallowance is so made known. |
| Reservation of Bills. | 66. | A Bill reserved for the King’s pleasure shall not have any force unless and until, within one year from the day on which it was presented to the Governor-General for the King’s Assent, the Governor-General makes known by speech or message to each of the Houses of Parliament or by proclamation that it has received the King’s Assent. |
| Signature and enrolment of Acts. | 67. | As soon as may be after any law shall have been assented to in the King’s name by the Governor-General, or having been reserved for the King’s pleasure shall have received his assent, the Clerk of the House of Assembly shall cause two fair copies of such law, one being in the English and the other in the Dutch language (one of which copies shall be signed by the Governor-General), 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 every such law, and in ease of conflict between the two copies thus deposited that signed by the Governor-General shall prevail. |
| | | V.—The Provinces. |
| | | ADMINISTRATORS. |
| Appointment and tenure of office of provincial administrators. | 68. | (1) In each province there shall be a chief executive officer appointed by the Governor-General in Council, who shall be styled the administrator of the province, and in whose name all executive acts relating to provincial affairs therein shall be done. (2) In the appointment of the administrator of any province, the Governor-General in Council shall, as far as practicable, give preference to persons resident in such province. (3) Such administrator shall hold office for a term of five years and shall not be removed before the expiration thereof 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. (4) The Governor-General in Council may from time to time appoint a deputy administrator to execute the office and functions of the administrator during his absence, illness, or other inability. |
| Salaries of administrators. | 69. | The salaries of the administrators shall he fixed and provided by Parliament, and shall not be reduced during their respective terms of office. |
| | | PROVINCIAL COUNCILS. |
| Constitution of provincial councils. | 70. | (1) 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 Assembly: Provided that, in any province whose representatives in the House of Assembly shall be 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 council. |
| Qualification of provincial councillors. | 71. | (1) 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 election 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 elections, shall be effected by the same commission 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 provincial 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. |
| Application of sections 53 to 55 to provincial councillors. | 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 thereupon cease to be a member of such provincial council. |
| Tenure of office by provincial councillors. | 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. |
| Sessions of provincial councils. | 74. | The administrator of each province shall by proclamation fix such times for holding the sessions of the provincial council as he may think fit, and may from time to time prorogue such council: Provided that there 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. |
| Chairmen of provincial councils. | 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 administrator 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 addressed to the administrator. |
| Allowances of provincial councillors. | 76. | The members of the provincial council shall receive such allowances as shall be determined by the Governor-General in Council. |
| Freedom of speech in provincial councils. | 77. | There shall be freedom of speech in the provincial council, and no member shall be liable to any action or proceeding in any court by reason of his speech or vote in such council. |
| | | EXECUTIVE COMMITTEES. |
| Provincial executive committees. | 78. | (1) 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, who shall be chairman, an executive committee for the province. The members of the executive committee other than the administrator shall hold office until the election of their successors in the same manner. (2) Such members shall receive such remuneration as the provincial council, with the approval of the Governor-General in Council, shall determine. (3) A member of the provincial council shall not be disqualified from sitting as a member by reason of his having been elected as a member of the executive committee. (4) Any casual vacancy arising in the executive committee shall he 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 committee to hold office temporarily pending an election by the council. |
| Right of administrator, &c. to take part in proceedings of provincial council. | 79. | The administrator and any other member of the executive committee 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. |
| Powers of provincial executive committees. | 80. | The executive committee shall on behalf of the provincial 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 fill the vacancies, and until such election the administrator shall early on the administration of provincial affairs. |
| Transfer of powers to provincial executive committees. | 81. | Subject to the provisions of this Act, all powers, authorities, and functions which at the establishment of the Union are in any of the Colonies vested in or exercised by the Governor or the Governor in Council, or any minister of the Colony, shall after such establishment 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. |
| Voting in executive committees. | 82. | Questions arising in the executive committee shall be determined by a majority of votes of the members present, and in case of an equality of votes, the administrator shall have also a casting vote. Subject to the approval of the Governor-General in Council, the executive committee may make rules for the conduct of its proceedings. |
| Tenure of office by members of executive committees. | 83. | Subject to the provisions of any law passed by Parliament regulating the conditions of appointment, tenure of office, retirement and superannuation of public officers, the executive committee 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. |
| Power of administrator to act on behalf of Governor-General in Council. | 84. | In regard to all matters in respect of which no powers are reserved or delegated to the provincial council, the administrator 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 committee. |
| | | POWERS OF PROVINCIAL COUNCILS. |
| 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 relation 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 Parliament otherwise provides: (iv) Agriculture to the extent and subject to the conditions 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 railways 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 provide 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 ordinance 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 Parliament shall by any law delegate the power of making ordinances to the provincial council. |
| Effect of provincial ordinances. | 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. |
| Recommendations to 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. |
| Power to deal with matters proper to be dealt with by private Bill legislation. | 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. |
| Constitution of provincial revenue fund. | 89. | A provincial revenue fund shall be formed in every province, into 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 provincial administration generally, or, in the case of moneys paid over by the Governor-General in Council for particular purposes, then for such purposes, 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 under warrant signed by the administrator: Provided that, until the expiration of one month after the first meeting of the provincial council, the administrator may expend such moneys as may be necessary for the services of the province. |
| Assent to provincial ordinances. | 90. | When a proposed ordinance has been passed by a provincial council it shall be presented by the administrator to the Governor-General in Council 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 unless and until, within one year from the day on which it was presented to the Governor-General in Council, he makes known by proclamation that it has received his assent. |
| Effect and enrolment of ordinances. | 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 province. 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 Governor-General), 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. |
| Audit of provincial accounts. | 92. | (1) 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 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, 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 salary as the Governor-General in Council, with the 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 regulations 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. |
| Continuation of powers of divisional and municipal councils. | 93. | Notwithstanding anything in this Act contained, all powers, authorities, and functions lawfully exercised at the 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. |
| Seats of provincial government. | 94. | The seats of provincial government shall be— For the Cape of Good HopeCape Town. For NatalPietermaritzburg. For the TransvaalPretoria. For the Orange Free StateBloemfontein. |
| | | VI.—The Supreme Court of South Africa. |
| Constitution of Supreme Court. | 95. | There shall be a Supreme Court of South Africa consisting 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. |
| Appellate Division of Supreme Court. | 96. | There shall be an Appellate Division of the Supreme Court of South Africa, consisting 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 the Appellate 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 their attendance is not required in the Appellate Division. |
| Filling of temporary vacancies in Appellate Division. | 97. | The Governor-General in Council may, during the absence, illness, or other incapacity of the Chief Justice of South Africa, or of any ordinary or additional judge of appeal, appoint any other judge of the Supreme Court of South Africa to act temporarily as such chief justice, ordinary judge of appeal, or additional judge of appeal, as the case may be. |
| Constitution of provincial and local divisions of the Supreme Court. | 98. | (1) 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 Witwatersrand, 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 establishment 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— (a) in which the Government of the Union or a person suing or being sued on behalf of such Government is a party: (b) in which the validity 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 councils as the corresponding courts of the Colonies have at the establishment of the Union in regard to parliamentary elections in such Colonies respectively. |
| Continuation in office of existing judges. | 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 establishment 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 establishment of the Union shall on such establishment become the Judges-President of 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. |
| Appointment and remuneration of judges. | 100. | The Chief Justice of South Africa, the ordinary judges of appeal, and all other judges of the Supreme Court of South Africa to be appointed after the establishment of the Union shall he appointed by the Governor-General in Council, and shall receive such remuneration as Parliament shall prescribe, and their remuneration shall not he diminished during their continuance in office. |
| Tenure of office by judges. | 101. | The Chief Justice of South Africa and other judges of the Supreme Court of South Africa shall not he 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 incapacity. |
| Reduction in number of judges. | 102. | Upon any vacancy occurring in any division of the Supreme Court of South Africa, other than the Appellate Division, the Governor-General 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 the vacancy until Parliament shall have determined whether such reduction shall take place. |
| Appeals to Appellate Division. | 103. | In every civil case in which, according to the law in force at the establishment of the Union, an appeal might have 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 the Appellate Division, except in cases of orders or judgments given by a single judge, upon applications by way of motion or petition or on summons for provisional sentence or judgments as to costs only, which by law are left to the discretion of the court. The appeal from any such orders or judgments, as well as any appeal in criminal cases from any such Superior Court, or the special reference 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 judgment given on appeal by such provincial division except to the Appellate Division, and then only if the Appellate Division shall have given special leave to appeal. |
| Existing appeals. | 104. | In every case, civil or criminal, in which at the establishment of the Union an appeal might have been made from the 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 the value of the matter in dispute or the amount claimed or awarded in such suit. |
| Appeals from inferior courts to provincial divisions. | 105. | In every case, civil or criminal, in which at the establishment 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 shall have given special leave to appeal. |
| Provisions as to appeals to the King in Council. 53 & 54 Vict. c. 27. | 106. | There shall be no appeal from the Supreme Court of South Africa or from any division thereof to the King in Council, but nothing herein 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 Council. Parliament 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 Governor-General for the signification 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 Court under or in virtue of the Colonial Courts of Admiralty Act, 1890. |
| Rules of procedure in Appellate Division. | 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 proceedings of the Appellate Division and prescribing the time and manner of making 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 mutatis mutandis apply. |
| Rules of procedure in provincial and local divisions. | 108. | The chief justice and other judges of the Supreme Court of South Africa may, subject to the approval of the Governor-General in Council, 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. |
| Place of sittings of Appellate Division. | 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. |
| Quorum for hearing appeals. | 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. |
| Jurisdiction of Appellate Division. | 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. |
| Execution of processes of provincial divisions. | 112. | The registrar of every provincial division of the Supreme Court of South Africa, if thereto requested by any party in whose favour any judgment or order has 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 remains unsatisfied, issue a writ or other process for the execution of such judgment or order, and thereupon 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. |
| Transfer of suits from one provincial or local division to another. | 113. | Any provincial or local division of the Supreme Court of South Africa to which it may be made to appear that any civil suit pending therein may be more conveniently or fitly 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 suit in like manner as if it had been originally commenced therein. |
| Registration and officers of Appellate Division. | 114. | The Governor-General in Council may appoint a registrar of the Appellate Division and such other officers thereof as shall be required for the proper dispatch of the business thereof. |
| Advocates and attorneys. | 115. | (1) The laws regulating the admission of advocates and attorneys 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) All advocates and attorneys entitled at the establishment of the Union to practise in any superior court of any of the Colonies shall be entitled to practise as such in the corresponding division of the Supreme Court of South Africa. (3) All advocates and attorneys entitled to practise before any provincial division of the Supreme Court of South Africa shall he entitled to practise before the Appellate Division. |
| Pending suits. | 116. | All suits, civil or criminal, pending 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 hear and determine the same, and all judgments 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. |
| Constitution of Consolidated Revenue Fund and Railway and Harbour Fund. | 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 in Council from the administration of the railways, ports, and harbours, and such fund shall be appropriated by Parliament to the purposes of the railways, 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 Governor-General in Council, and such fund shall be appropriated by Parliament for the purposes of the Union in the manner prescribed by this Act, and subject to the charges imposed thereby. |
| Commission of inquiry into financial relations between Union and provinces. | 118. | The Governor-General in Council shall, as soon as may be after the establishment of the Union, appoint a commission, 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 completion of that inquiry and until Parliament otherwise provides, there shall be paid annually out of the Consolidated Revenue Fund to the administrator of each province— (a) an amount equal to the sum provided in the estimates 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 Council may consider necessary for the due performance of the services and duties assigned to the provinces respectively. Until such inquiry shall be completed and Parliament 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 Council, and no expenditure shall be incurred by any executive committee which is not provided for in such approved estimates. |
| Security for existing public debts. | 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. |
| Requirements for withdrawal of money from funds. | 120. | No money shall be withdrawn from the Consolidated Revenue Fund 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 respectively. |
| Transfer of Colonial property to the Union. | 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 funds 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 they have been provided. |
| Crown lands, &c. | 122. | Crown lands, public works, and all property throughout the Union, movable or immovable, and all rights of whatever description belonging to the several Colonies at the establishment of the Union, shall vest in the Governor-General in Council subject to any debt or liability specifically charged thereon. |
| Mines and minerals. | 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. |
| Assumption by Union of colonial debts. | 124. | The Union shall assume all debts and liabilities of the Colonies existing at its establishment, subject, notwithstanding 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 priority in respect of the payment of principal, interest, sinking 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. |
| Ports, harbours, and railways. | 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 Council. No railway for the conveyance of public traffic, and no port, harbour, or similar work, shall be constructed without the sanction of Parliament. |
| Constitution of Harbour and Railway Board. | 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 through 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 re-appointed. 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. |
| Administration of railways, ports, and harbours. | 127. | The railways, ports, and harbours of the Union shall he administered on business principles, due regard being had to agricultural and industrial development within the 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 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 being capital contributed out of railway or harbour revenue, and not including any sums payable out of the Consolidated Revenue Fund in accordance with the provisions of sections one hundred and thirty and one hundred 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 arrangements 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 Fund are insufficient to provide for the general service of the Union, and if the earnings accruing to the Railway and Harbour Fund are in excess of the outlays specified herein, Parliament may by law appropriate such excess 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. |
| Establishment of a fund for maintaining uniformity of railway rates. | 128. | Notwithstanding anything 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. |
| Management of railway and harbour balances. | 129. | All balances standing to the credit of any fund established in any of the Colonies for railway or harbour purposes at the establishment 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. |
| Construction of harbour and railway works. | 130. | Every proposal for the construction of any port or harbour works or of any line of railway, before being submitted to Parliament, shall 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 shall be examined by the Controller and Auditor-General, and when approved by him the amount thereof shall be paid over annually from the Consolidated Revenue Fund to the Railway and Harbour Fund: Provided that, if in any year the actual loss incurred, as calculated 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 calculating the loss arising from the operation of any such work or line, the Board shall have regard 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. |
| Making good of deficiencies in Railway Fund in certain cases. | 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, showing, 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. |
| Controller and Auditor-General. | 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 commencement of its next session; and, if an address 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 he 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 Parliament shall otherwise provide, the Controller and Auditor-General shall exercise such powers and functions and undertake such duties as may be assigned to him by the Governor-General in Council by regulations framed in that behalf. |
| Compensation of colonial capitals for diminution of prosperity. | 133. | In order to compensate Pietermaritzburg and Bloemfontein for any loss sustained by them in the form of diminution of prosperity or decreased rateable value by reason of 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-first day of January nineteen hundred and nine, and as ascertained by the Controller and Auditor-General. The Commission 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 shall be paid out of the Consolidated Revenue Fund for a period 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 ascertained by the Controller and Auditor-General. For the purposes 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 respectively. 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 withdraw or reduce the grant to such town. |
| | | VIII.—General. |
| Method of voting for senators, &c. | 134. | The election of senators and of members of the executive committees of the provincial councils as provided in this Act shall, whenever such election is contested, be according to the principle of proportional representation, each voter having one transferable vote. The Governor-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 prescribing the method of voting and of transferring and counting votes and the duties of returning officers in connection therewith, and such regulations or any amendments thereof after being duly promulgated shall have full force and effect unless and until Parliament shall otherwise provide. |
| Continuation of existing colonial laws. | 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 or delegated to them. All legal commissions in the several Colonies at the establishment of the Union shall continue as if the Union had not been established. |
| Free trade throughout Union. | 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 the establishment of the Union shall remain in force. |
| Equality of English and Dutch languages. | 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; all records, journals, and proceedings of Parliament shall 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. |
| Naturalisation. | 138. | All persons who have been naturalised in any of the Colonies shall be deemed to be naturalised throughout the Union. |
| Administration of justice. | 139. | The administration of justice throughout the Union shall be under the control of a minister of State, in whom shall be vested all powers, authorities, and functions which shall at the establishment of the 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 Attorney-General of the province, who shall also discharge such other 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 respectively continue to exercise the powers and duties by law vested in them at the time of the establishment of the Union. |
| Existing officers. | 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. |
| Reorganisation of public departments. | 141. | (1) 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 public service as may be necessary. The commission shall also make recommendations in regard to the assignment of officers to the several provinces. (2) The Governor-General in Council may after such commission has reported assign from time to time to each province such officers as may be necessary for the proper discharge of the services reserved or delegated to it, and such officers on being so assigned shall become officers of the province. Pending the assignment of such officers, the Governor-General in Council may place at the disposal of the provinces the services of such officers 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 Harbour Board, or to any person holding office under the Board. |
| Public service commission. | 142. | After the establishment of the Union the Governor-General in Council shall appoint a permanent public service commission with such powers and duties relating to the appointment, discipline, retirement, and superannuation of public officers as Parliament shall determine. |
| Pensions of existing officers. | 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 like circumstances if the Union had not been established. |
| Tenure of office of existing officers. | 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. |
| Existing officers not to be dismissed for ignorance of English or Dutch. | 145. | The services of officers in the public service of any of the Colonies at the establishment of the Union shall not be dispensed with by reason of their want of knowledge of either the English or Dutch language. |
| Compensation to existing officers who are not retained. | 146. | Any permanent officer of the Legislature of any of the Colonies who is not retained in the service of the Union, or assigned 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. |
| Administration of native affairs, &c. | 147. | The control and administration of native affairs and of matters specially or differentially affecting Asiatics throughout the Union shall vest in the Governor-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 Council, who shall exercise all special powers in relation to such reserves as may hitherto have been exerciseable by any such Governor or Governor and Executive Council, and no lands set aside for the occupation of natives which cannot at the establishment of the Union be alienated except by an Act of the Colonial Legislature shall be alienated or in any way diverted from the purposes for which they are set apart except under the authority of an Act of Parliament. |
| Devolution on Union of rights and obligations under conventions. | 148. | (1) All rights and obligations under any conventions or agreements which are binding on any of the Colonies shall devolve upon the Union at its establishment. (2) The provisions of the railway agreement between 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 Territories. |
| Alteration of boundaries of provinces. | 149. | Parliament may alter 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. |
| Power to admit into Union territories administered by the British South Africa Company. | 150. | The King, with the advice of the Privy Council, 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 conditions 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 effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. |
| Power to transfer to Union government of native territories. | 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 government 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 such transfer the Governor-General in Council may undertake the government of such territory upon the terms and conditions embodied in the Schedule to this Act. |
| | | X.—Amendment of Act. |
| Amendment of Act. | 152. | Parliament may by law repeal or alter any of the provisions of this Act: Provided that no provision thereof, for the operation of which a definite period of time is prescribed, 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, whichever is the longer period), or in sections thirty-five and one hundred and thirty-seven, shall be valid unless the Bill embodying such repeal or alteration shall be passed by both Houses of Parliament sitting together, and at the third reading be agreed to by not less than two-thirds of the total number of members of both Houses. A Bill so passed at such joint sitting shall be taken to have been duly passed by both Houses of Parliament. |
| | | Schedule. |
| Section 151 | | 1. After the transfer of the government of any territory belonging to or under the protection of His Majesty, the Governor-General in Council shall be the legislative authority, and may by proclamation make laws for the peace, order, and good government of such territory: Provided that all such laws shall be laid before both Houses of Parliament within seven days after the issue of the proclamation or, if Parliament be not then sitting, within seven days after the beginning of the next session, and shall be effectual unless and until both Houses of Parliament shall by resolutions passed in the same session request the Governor-General in Council to repeal the same, in which case they shall be repealed by proclamation. 2. The Prime Minister shall be charged with the administration of any territory thus transferred, and he shall be advised in the general conduct of such administration by a commission consisting of not fewer than three members with a secretary, to be appointed by the Governor-General in Council, who shall take the instructions of the Prime Minister in conducting all correspondence relating to the territories, and shall also under the like control have custody of all official papers relating to the territories. 3. The members of the commission shall be appointed by the Governor-General in Council, and shall be entitled to hold office for a period of ten years, but such period may be extended to successive further terms of five years. They shall each be entitled to a fixed annual salary, which shall not be reduced during the continuance of their term of office, and they shall not be removed from office except upon addresses from both Houses of Parliament passed in the same session praying for such removal. They shall not be qualified to become, or to be, members of either House of Parliament. One of the members of the commission shall be appointed by the Governor-General in Council as vice-chairman thereof. In ease of the absence, illness, or other incapacity of any member of the commission, the Governor-General in Council may appoint some other fit and proper person to act during such absence, illness, or other incapacity. 4. It shall be the duty of the members of the commission to advise the Prime Minister upon all matters relating to the general conduct of the administration of, or the legislation for, the said territories. The Prime Minister, or another minister of State nominated by the Prime Minister to be his deputy for a fixed period, or, failing such nomination, the vice-chairman, shall preside at all meetings of the commission, and in case of an equality of votes shall have a casting vote. Two members of the commission shall form a quorum. In case the commission shall consist of four or more members, three of them shall form a quorum. 5. Any member of the commission who dissents from the decision of a majority shall be entitled to have the reasons for his dissent recorded in the minutes of the commission. 6. The members of the commission shall have access to all official papers concerning the territories, and they may deliberate on any matter relating thereto and tender their advice thereon to the Prime Minister. 7. Before coming to a decision on any matter relating either to the administration, other than routine, of the territories or to legislation therefor, the Prime Minister shall cause the papers relating to such matter to be deposited with the secretary to the commission, and shall convene a meeting of the commission for the purpose of obtaining its opinion on such matter. 8. Where it appears to the Prime Minister that the despatch of any communication or the making of any order is urgently required, the communication may be sent or order made, although it has not been submitted to a meeting of the commission or deposited for the perusal of the members thereof. In any such case the Prime Minister shall record the reasons for sending the communication or making the order and give notice thereof to every member. 9. If the Prime Minister does not accept a recommendation of the commission or proposes to take some action contrary to their advice, he shall state his views to the commission, who shall be at liberty to place on record the reasons in support of their recommendation or advice. This record shall be laid by the Prime Minister before the Governor-General in Council, whose decision in the matter shall he final. 10. When the recommendations of the commission have not been accepted by the Governor-General in Council, or action not in accordance with their advice has been taken by the Governor-General in Council, the Prime Minister, if thereto requested by the commission, shall lay the record of their dissent from the decision or action taken and of the reasons therefor before both Houses of Parliament, unless in any case the Governor-General in Council shall transmit to the commission a minute recording his opinion that the publication of such record and reasons would be gravely detrimental to the public interest. 11. The Governor-General in Council shall appoint a resident commissioner for each territory, who shall, in addition to such other duties as shall be imposed on him, prepare the annual estimates of revenue and expenditure for such territory, and forward the same to the secretary to the commission for the consideration of the commission and of the Prime Minister. A proclamation shall be issued by the Governor-General in Council, giving to the provisions for revenue and expenditure made in the estimates as finally approved by the Governor-General in Council the force of law. 12. There shall be paid into the Treasury of the Union all duties of customs levied on dutiable articles imported into and consumed in the territories, and there shall be paid out of the Treasury annually towards the cost of administration of each territory a sum in respect of such duties which shall bear to the total customs revenue of the Union in respect of each financial year the same proportion as the average amount of the customs revenue of such territory for the three completed financial years last preceding the taking effect of this Act bore to the average amount of the whole customs revenue for all the Colonies and territories included in the Union received during the same period. 13. If the revenue of any territory for any financial year shall be insufficient to meet the expenditure thereof, any amount required to make good the deficiency may, with the approval of the Governor-General in Council, and on such terms and conditions and in such manner as with the like approval may be directed or prescribed, be advanced from the funds of any other territory. In default of any such arrangement, the amount required to make good any such deficiency shall be advanced by the Government of the Union. In case there shall be a surplus for any territory, such surplus shall in the first instance be devoted to the repayment of any sums previously advanced by any other territory or by the Union Government to make good any deficiency in the revenue of such territory. 14. It shall not be lawful to alienate any land in Basutoland or any land forming part of the native reserves in the Bechuanaland protectorate and Swaziland from the native tribes inhabiting those territories. 15. The sale of intoxicating liquor to natives shall be prohibited in the territories, and no provision giving facilities for introducing, obtaining, or possessing such liquor in any part of the territories less stringent than those existing at the time of transfer shall be allowed. 16. The custom, where it exists, of holding pitsos or other recognised forms of native assembly shall be maintained in the territories. 17. No differential duties or imposts on the produce of the territories shall be levied. The laws of the Union relating to customs and excise shall be made to apply to the territories. 18. There shall be free intercourse for the inhabitants of the territories with the rest of South Africa subject to the laws, including the pass laws, of the Union. 19. Subject to the provisions of this Schedule, all revenues derived from any territory shall be expended for and on behalf of such territory: Provided that the Governor-General in Council may make special provision for the appropriation of a portion of such revenue as contribution towards the cost of defence and other services performed by the Union for the benefit of the whole of South Africa, so, however, that that contribution shall not bear a higher proportion to the total cost of such services than that which the amount payable under paragraph 12 of this Schedule from the Treasury of the Union towards the cost of the administration of the territory bears to the total customs revenue of the Union on the average of the three years immediately preceding the year for which the contribution is made. 20. The King may disallow any law made by the Governor-General in Council by proclamation for any territory within one year from the date of the proclamation, and such disallowance on being made known by the Governor-General by proclamation shall annul the law from the day when the disallowance is so made known. 21. The members of the commission shall be entitled to such pensions or superannuation allowances as the Governor-General in Council shall by proclamation provide, and the salaries and pensions of such members and all other expenses of the commission shall be borne by the territories in the proportion of their respective revenues. 22. The rights as existing at the date of transfer of officers of the public service employed in any territory shall remain in force. 23. Where any appeal may by law be made to the King in Council from any court of the territories, such appeal shall, subject to the provisions of this Act, be made to the Appellate Division of the Supreme Court of South Africa. 24. The Commission shall prepare an annual report on the territories, which shall, when approved by the Governor-General in Council, be laid before both Houses of Parliament. 25. All bills to amend or alter the provisions of this Schedule shall be reserved for the signification of His Majesty’s pleasure. |
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