Chapter III: Constitution of the South African Republic

The South African Republic, or Transvaal State as it is popularly called, is ruled by a much longer, much less clear, and much less systematically arranged document than that established by its sister commonwealth[198]. A considerable part of the contents of this constitution is indeed unfit, as too minute, for a fundamental instrument of government; and, whatever the intention of its framers may have been, it has not in fact been treated as a fundamental instrument. Whether it is really such, in strict contemplation of law, is a question often discussed in professional circles in Pretoria and Johannesburg. I shall summarize the more important of its provisions—they occupy two hundred and thirty-two articles—and endeavour therewith to present an outline of the frame of government which they establish.

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Footnote 198:

I have to thank my friend Mr. J. G. Kotzé, late Chief Justice of the
South African Republic, for information kindly supplied to me
regarding certain points in this Constitution.

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The Grondwet (Ground-law) or Constitution was drafted by a committee of an assembly of delegates and approved by the assembly itself in February, 1858. It is in Dutch, but has been translated into English more than once.

Article 6 declares the territory of the republic open to every stranger who submits himself to the laws—a provision noteworthy in view of recent events—and declares all persons within the territory equally entitled to the protection of person and property.

Article 8 states, _inter alia_, that the people ‘permit the spread of the Gospel among the heathen, subject to prescribed provisions against the practice of fraud and deception’; a provision upon whose intention light is thrown by the suspicions felt by the Boers of the English missionaries.

Article 9 declares that ‘the people will not tolerate equality between coloured and white inhabitants either in church or in state[199].’

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Footnote 199:

The Boers are a genuinely religious people, and read their Bibles. But
they have shown little regard to 1 Corinthians xii. 13; Galatians iii.
28; and Colossians iii. 11. The same may be said of the people of the
Southern States of America; and is indeed also true of the less
religious English both in South Africa and in the West Indies.

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Article 10 forbids slavery or dealing in slaves.

Article 19 grants the liberty of the press.

Articles 20 to 23 formerly declared that the people would maintain the principles of the doctrine of the Dutch Reformed Church, as fixed by the Synod of Dort in 1618 and 1619, that the Dutch Reformed Church shall be the Church of the State, that no persons shall be elected to the Volksraad who are not members of that Church, that no ecclesiastical authority shall be acknowledged save that of the consistories of that Church, and that no Roman Catholic Churches, nor any Protestant Churches save those which teach the doctrine of the Heidelberg Catechism, shall be permitted within the republic. But these archaic provisions were in the revised Grondwet of 1889 reduced to a declaration that only members of a Protestant Church should be elected to the Volksraad[200].

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Footnote 200:

I am informed that even this restriction was abolished subsequently to
1895.

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After these general provisions we come to the frame of government. Legislation is committed to a Volksraad, ‘the highest authority of the state.’ It is to consist of at least twelve members (the number is at present twenty-four) who must be over thirty years of age and possess landed property. Each district returns an equal number of members. Residence within the district is not required of a candidate. The members were formerly elected for two years, and one-half retired annually. Their term was afterwards extended to four years. Every citizen who has reached the age of twenty-one enjoys the suffrage[201] (persons of colour are of course incapable of voting or of being elected). The unworkable provision of the old Grondwet that ‘any matter discussed shall be decided by three-fourths of the votes’ was subsequently repealed.

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Footnote 201:

The suffrage was by subsequent enactments restricted as respects
immigrants and the sons of immigrants; and in 1895 a person coming
into the country could not obtain full electoral rights till after a
period of twelve years. In July 1899, three months before the war
which broke out in that year, the period was shortened to seven years
owing to pressure by the British Government.

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Three months are to be given to the people for intimating to the Volksraad their opinion on any proposed law, ‘except laws which admit of no delay’ (§ 12), but laws may be discussed whether published three months before their introduction or introduced during the session of the Volksraad (§ 43). The sittings are to open and close with prayer, and are to be public, unless the chairman or the President of the Executive Council deems secrecy necessary.

If the high court of justice declares the President, or any member of the Executive Council, or the Commandant-General, unfit to fill his office, the Volksraad shall remove from office the person so declared unfit and shall provide for filling the vacant office.

The administration, as well as the proposal, of laws was by the old Grondwet given to an Executive Council (§ 13). The revised instrument vests it in the State President. The President is elected for five years by the citizens voting all over the country. He must have attained the age of thirty and be a member of a Protestant (formerly of the Dutch Reformed) Church (§ 56). He is the highest officer of the state, and appoints all officials. All public servants, except those who administer justice, are subordinate to him and under his supervision. In case of his death, dismissal, or inability to act, his functions devolve on the oldest member of the Executive Council till a new appointment is made. The Volksraad shall dismiss him on conviction of any serious offence. He is to propose laws to the Volksraad—‘whether emanating from himself or sent in to him by the people’—and support them in that body either personally or through a member of the Executive Council. He has, however, no right to vote in the Volksraad. He recommends to the Volksraad persons for appointment to public posts; and may suspend public servants, saving his responsibility to the Volksraad. He submits an estimate of revenue and expenditure, reports on his own action during the past year and on the condition of the republic, visits annually all towns and villages where any public office exists to give due opportunity to the inhabitants of stating their wishes.

The Executive Council consists of four official members besides the President, namely, the State Secretary, the Commandant-General, the Superintendent of Native Affairs, and the Keeper of Minutes (_Notulenhouder_), and of two other members. All except the Commandant-General are elected by the Volksraad; the Secretary for four years, the two other members for three years. The Commandant-General is elected by the burghers of the whole republic for ten years. All, including the President, are entitled to sit, but not to vote, in the Volksraad, The President and Council carry on correspondence with foreign powers, and may commute or remit a penal sentence. A sentence of death requires the unanimous confirmation of the Council. The President may, with the unanimous consent of the Council, proclaim war and publish a war ordinance summoning all persons to serve (§§ 23, 66, 84).

The provisions relating to the military organization (§§ 93-114) are interesting chiefly as indicating the highly militant character of the republic. Express provision is made not only for foreign war and for the maintenance of order at home, but also for the cases of native insurrection and of disaffection or civil war among the whites. The officers are all elected by the burghers, the Commandant-General by the whole body of burghers for ten years, the commandants in each district for five years, the field cornets and assistant field cornets in the wards for three years.

The judiciary (§§ 115-135) consists of landrosts (magistrates who also discharge administrative duties), heemraden (local councillors or assessors), and jurors. The provisions regarding the exercise of judicial power are minute and curious in their way, but have no great interest for constitutional purposes. Two landrosts are proposed to the people of the judicial district by the Executive Council, and the people vote between these two. Minute provisions regarding the oaths to be taken by these officials and by jurymen, and regarding the penalties they may inflict, fill the remaining articles. A guarantee for the independence of the courts is to be found in the general statement in article 15 that ‘the judicial power is vested in landrosts, heemraden, and jurors,’ and in the declaration (§ 57) that the judicial officers are ‘left altogether free and independent in the exercise of their judicial power.’ A High Court and a Circuit Court, not provided for in the old Grondwet, appear in that of 1889, and are appointed for life. The High Court consists of a chief justice and four puisne judges.

The old Grondwet also contained some curious details relating to civil administration (which was primarily entrusted to the judicial officers, supported by the commandants and field cornets), and the revenue of the State, which was intended to be drawn chiefly from fees and licences, the people having little disposition to be directly taxed. The farm tax was not to exceed forty dollars, and the poll-tax, payable by persons without or with only one farm, was fixed at five dollars annually. Five dollars was the payment allowed to each member of the Volksraad for each day’s attendance. Most of these provisions have disappeared from the instrument of 1889. The salary of the President of the Council, which had been fixed at 5,333 dollars, 2 schellings, and 4 stuivers, to be increased as the revenue increased, now amounts to £7,000 sterling ($35,000) per annum, besides allowances.

The most considerable change made since 1889 was the establishment, in 1890, of a chamber called the Second Volksraad, which is elected on a more liberal basis than the First Volksraad, persons who have resided in the country for two years, have taken an oath of allegiance and have complied with divers other requirements, being admissible as voters. This assembly, however, enjoys little real power, for its competency is confined to some specified matters, and to such others as the First Volksraad may refer to it; and its acts may be overruled by the First Raad, whereas the Second Raad has no power of passing upon the resolutions or laws enacted by the First Raad. The Second Volksraad is, therefore, not a second chamber in the ordinary sense of the term, such as the Senate in American States or the House of Lords in England, but an appendage to the old popular House. It was never intended to exercise much power, and was, in fact, nothing more than a concession, more apparent than real, to the demands of the Uitlanders, or recent immigrants excluded from citizenship.

A few general observations may be made on this Constitution before we proceed to examine its legal character and effect.

It was in its older form a crude, untechnical document, showing little trace on the part of those who drafted it either of legal skill or of a knowledge of other constitutions. The language was often vague, and many of the provisions went into details ill-fitted for a fundamental law.

Although enacted by and for a pure democracy, it was based on inequality—inequality of whites and blacks, inequality of religious creeds. Not only was the Dutch Reformed Church declared to be established and endowed by the State, but Roman Catholic churches were forbidden to exist, and no Roman Catholic nor Jew nor Protestant of any other than the Dutch Reformed Church was eligible to the presidency, or to membership of the legislature or executive council. In its improved shape (1889) some of these faults have been corrected, and in particular the religious restrictions were reduced to a requirement that the President, the Secretary of State, the Landrosts and the members of the Volksraad should belong to a Protestant Church. The door, however, remained barred against persons of colour.

It contained and still contains little in the nature of a Bill of Rights, partly perhaps from an oversight on the part of its draftsmen, but partly also owing to the assumption—which the early history of the republic amply verified—that the government would be a weak one, unable to encroach upon the rights of private citizens.

The first legal question which arises upon an examination of this Constitution relates to its stability and permanence. Is it a Rigid or a Flexible Constitution? That is to say, can it, like the constitution of the Orange Free State and that of the United States, be altered only in some specially prescribed fashion? Or may it be altered by the ordinary legislature in the ordinary way, like any other part of the law?

In favour of the former alternative, that the constitution is a Rigid one, appeal has been made not only to the name Grondwet (Ground-law), but, which is of more consequence, to some of its language. The general declarations of the power of the people, the form in which they entrust power to the legislature, to the Executive Council, and to the judiciary respectively (as well as to the military authority), look as if meant to constitute a triad of authorities, similar to that created by the constitutions of American States, no one of which authorities may trespass on the province of the others. Some things seem intended to be secured against any alteration by the legislature, _e.g._, article 9 declares that ‘the people will not allow of any equality between coloured and white inhabitants’; article 11 declares that ‘the people reserve to themselves the exclusive right of protecting and defending the independence and inviolability of Church and State, according to the laws.’

On the other hand, it is argued that the constitution must be deemed to be a Flexible one, because it did not in its original form, and does not now, contain any provision whereby it may be altered, otherwise than by the regular legislature of the country acting according to its ordinary legislative methods. One cannot suppose that no change was intended ever to be made in the Grondwet. That supposition would be absurd in view of the very minute provisions on some trivial subjects which it contains. No distinction is drawn, by the terms of the instrument, between these minutiae and the provisions of a more general and apparently permanent nature. _Ergo_, all must be alterable, and alterable by the only legislative authority, that is to say, the Volksraad. This view, moreover, is the view which the legislature has in fact taken, and in which the people have certainly acquiesced. Some changes have been made—such as the admission to the electoral franchise of persons not belonging to the Dutch Reformed Church, the creation of a new supreme court, and the establishment of a Second Volksraad—which are not consistent with the Grondwet, but whose validity has not been contested.

The difficulty which arises from the fact that, whereas the framers of the Grondwet appear to have desired to make parts of their work fundamental and unchangeable, they have nevertheless drawn no distinction between those parts and the rest, and have provided no specific security against the heedless change of the weightiest parts, may be explained by noting that they were not skilled jurists or politicians, alive to the delicacy of the task they had undertaken. They expected that the Volksraad would continue to be of the same mind as they were then, and would respect what they considered fundamental; they relied on the general opinion of the nation. They had, moreover, provided a method whereby the nation should always have an opportunity of expressing its opinion upon legislation, namely, the provision (§ 12) that the people should have a period of three months within which to ‘intimate to the Volksraad their views on any proposed law,’ it being assumed that the Volksraad would obey any such intimation, although no means is provided for securing that it will do so.

This provision has given rise to a curious question. It excepts ‘those laws which admit of no delay.’ Now the Volksraad has in fact neglected the general provision, and, instead of allowing the three months’ period, has frequently hastily passed enactments upon which the people have had no opportunity of expressing their opinion. Such enactments, which have in some instances purported to alter parts of the Grondwet itself, are called ‘resolutions’ (_besluite_) as opposed to laws; and when objection has been taken to this mode of legislation, these resolutions seem to have been usually justified on the ground of urgency, although in fact many of them, if important, could hardly be called urgent. They have been treated as equally binding with laws passed in accordance with the provisions of the Grondwet (for up to 1895 article 12 seems not to have been formally altered); and it is only recently that their validity has been seriously questioned in the courts. Those who support their validity argue that in passing such resolutions as laws, the Volksraad must be taken to have implicitly, but decisively, repealed the provision of article 12; or that, if this be not so, still the Volksraad is under article 12 the sole judge of urgency, and can legally treat things as urgent which are, in fact, not so; a view affirmed by the Chief Justice in a case (_State_ v. _Hess_) which arose in 1895. They add that even apart from both these arguments the unbroken usage of the Volksraad during a number of years, tacitly approved by the people, must be deemed to have established the true construction of the Constitution, especially as according to Roman-Dutch law, usage, whether affirmative or negative, can alter written enactments and could thus annul the directions of article 12. So it is written in the Digest of Justinian (I. 3. 32): ‘Inveterata consuetudo pro lege custoditur ... nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis? Quare rectissime etiam illud receptum est ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.’ To this, however, it is answered that the principle of obsolescence by contrary practice cannot fitly be applied where a statute is recent and express.

Until 1897, the High Court of the Transvaal had held that the resolutions as well as the laws passed by the Volksraad were fully valid, whether or no they had been submitted to the people for the period of three months, nor had the question of their being really urgent been raised. It had thus declared the Grondwet to be alterable by the Legislature, and so not a Rigid Constitution. In that year, however, in the case of _Brown_ v. _Leyds_, the Court held, by a majority, that a law which had been passed without having been submitted to the people during the period prescribed by the Grondwet was unconstitutional and therefore void, thus appearing to assert (for the language of the judgement is not very clear) the view that the Grondwet was a Rigid Constitution, not alterable by the Legislature. This action was warmly resented by the Executive and Legislature: and the latter passed a resolution directing the President to require from every judge on pain of dismissal a declaration that he would in future recognize as valid every law passed by the Volksraad, and not again assert the so-called ‘testing power’ of inquiring whether a law conformed to the provisions of the Grondwet. The Chief Justice refused to make this declaration, and was accordingly dismissed, much to the regret of those who remembered his past services to the State.

On a review of the whole matter, apart from the political passion which has been brought into it, the true view would appear to be the following, though I state it with the diffidence becoming a stranger who is also imperfectly informed as to the constitutional history of the republic.

The Grondwet of the South African Republic, though possibly intended by its framers to be treated, in respect of its most important provisions, as a fundamental law not to be altered by the Volksraad in the exercise of its ordinary powers, is not really a Rigid constitution but a Flexible one. We have to look not so much at what the framers may have wished as at what the language employed actually conveys and imports; and the absence of any provision, such as that contained in the Constitution of the Orange Free State, for a special and peculiar method of change, is decisive upon this point. An American lawyer, accustomed to construe strictly documents which contain or modify powers, might be inclined to argue that the validity of laws (not dealing with matters which ‘admit of no delay’) which had been passed as mere resolutions, ignoring article 12, may have been doubtful until the Volksraad modified that article by legislation. But the Transvaal High Court had held that the question of urgency was a question for the discretion of the Volksraad; and it must be added that persons accustomed to other legal systems do not necessarily proceed upon American principles. The Swiss, for instance, make their legislature the interpreter of the Constitution for the purpose of determining the extent of legislative power[202]. Allowing for this, and remembering that both the law courts and the whole people had until 1897 treated the Volksraad as an absolutely sovereign body, the action it took in asserting its sovereignty need excite no surprise. It was claiming nothing more than the powers actually enjoyed by the British Parliament. However, although the Volksraad was merely enforcing the rights which it reasonably (and I think correctly) conceived itself to possess, and could not have permitted the majority of the High Court to assert a power previously unknown, a wiser course would have been to amend the Constitution in some way which would have given to the judiciary a more assured position than that which had been secured to them by a confessedly crude and imperfect instrument. It was through the confused language of the Grondwet that the whole difficulty arose, and while formally declaring that the Grondwet was not—as it certainly was not—a Rigid Constitution, the Volksraad ought to have endeavoured to render it more suited to the needs of a society which had grown to be different from that for which it had been originally enacted.

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Footnote 202:

See Essay III, p. 231.

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