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ocmi AnucAJc VATIOITAL conranoy 







THE aim of this book is to give a short sketeh 
<>t the leading feature* 01 in Con- 

>titutim. In order to make the subject intelli- 
gible, it has been necessary to refer also to th< 
history of the movement towards Union. But 
t)i< chapter dealing with this aspect of the ques- 
tion has been made intentionally brief. Those 
who wish for more details are referred to Lord 
Selborne's memorandum, entitled A Review of 
the Present Mutual Relations of the British South 
African Colonies, published in England as a Blue 
Book in 1907, and to The Government of South 
<*a, an anonymous work in two volumes, pub- 
lished by the Cape Times, Limited, Cape Town, 
in 1908. For the purposes of reference the South 
ica Act is printed as an append 

The sketch of the Constitution might have been 
more interesting to the layman, had it been 
possible to supplement it by some account of 
the proceedings of the National Convention itself. 
But the Convention sat with closed doors, and 
secrecy is still maintained as to its proceedings. 
No reference to them could therefore be made 
without a breach of confidence. 

As I have held an official position in the public 
service of the Transvaal and Orange River Colony 
during the past seven years, first under Crown 
Colony and then under Responsible Government, 
it may be as well to state that the opinions ex- 
pressed in the following pages are purely personal 
to myself 


London, Oct. 1909. 


Praidenl Sir John Brand 











. . . 55 





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SOUTH AFRICA ACT, 1909 .137 


SHORTLY after the draft Constitution of South 
published in February last, Sir Percy 
, one of the Transvaal delegates, in u 
speech at Johannesburg, delivered a panegyric upon 
it as being the finest constitution in the world. 
A few days later General Smuts, in the course of 
a speech at Pretoria, remarked that to him imu h 
more wonderful than the Constitution itself were 
the signatures at the end of it. General Smuts 
was right. South African politics have always 
been kaleidoscopic, but no political whirligig has 
been so astonishing or so complete as that of 
the last tut -l\e months. What would President 

_cer have said in 1899 if he had been told 
that in less than seven years after the com- 
plete destruction of the Republics and t 
tmu xation to the British Empire, a Constitution 
tin bodying all that the Uitlanders had struggled 
for would have been enthusiastically accepted by 
all parties and races in South Africa? Would 
he have believed his eyes had he seen appended 
to that document, side by side, the names of 

lameson, who raided the independent Republic- 
<>t the Transvaal in order to overthrow its govern- 
ment, and General Botha, who, then a leading 
of that Republic, is said to have demanded 


that Dr. Jameson should be shot as a freebooter ; 
of Sir Percy Fitzpatrick, the author of a violent 
attack on Krugerism, and Mr. Abraham Fischer, 
who in his capacity as interpreter at the Bloem- 
fontein Conference of 1898 between President 
Kruger and Lord Milner, is credited with having 
been by no means the least important actor in 
that drama ; of Sir George Farrar, who, as one of 
the leading reformers on the Rand, was, in com- 
pany with Lionel Phillips, Frank Rhodes, and 
Hayes Hammond, condemned to death by Mr. 
Gregorowski, then a judge of the Republic, now 
a barrister and a member of the Transvaal Parlia- 
ment, and Mr. Steyn, then president of a republic 
on close terms of alliance with the government to 
which the reformers had been so bitterly hostile ; 
of Dr. Smartt, the ardent supporter of the British 
cause in the Cape Colony and the strenuous advo- 
cate, after the war, of the suspension of the con- 
stitution in that colony, and Mr. Merriman and 
Mr. Sauer, who were bitter opponents of that 
policy, and who have never ceased since to express 
t heir detestation of Lord Milner and all his works; 
of General Smuts and Mr. Hull, now Ministers 
of the Crown in the same government, the one 
a leading member of Kruger's government at the 
outbreak of the war, the other one of the most 
prominent of the reformers ? But, strange though 
so sudden a reconciliation of such diverse elements 
appears on the surface, to those who know South 
Africa it is a natural outcome of her history. In 


no country is the growth of a common national it \ 
more certain, and the creation of one controlling 
government more imperative. The country, vast 
as it is in area, it destined by nature to be one. 
Its physical characteristics are uniform, and there 
are no natural barriers between one part and 
another. The population forms, and in reality 
formed even before the war, one body politie. 
Not only is a Boer of the Cape Peninsula identical 
in all essentials of character and ideas with a Boer 
of the Zoutpansberg, but, as Mr. Bryce long ago 
remarked, the inhabitants of the towns, whether 
of Cape Town or Johannesburg, Durban or 
Pretoria, are connected by the closest ties of 
blood and friendship and form to a large extent 
one society. With modern facilities of communi- 
cation all this made political union in some form 
or other, and either sooner or later, inevitable. 

South Africa throws a spell not only over those 
who have been born and bred in her, but even over 
the immigrant who has known her but for a few 
years. Apart from their passionate attachment 
to the soil itself, South Africans of both races love 
country for her varied and romantic history, 
and both English and Dutch cherish a common 
patriotism which springs from a pride in the many 
deeds of courage record. <i in her annals. Hitherto 
the existence of two conflicting ideals, the spirit 
of Dutch AfriMttfansm on th.- one hand and of 
-h dominance on the other, has caused the 
curnnt ol ial feeling to Hoi 


hanneb. But since the war has eradicated this 
profound cause of conflict, the barrier between the 
channels has been thrown down and the last 
obstacle to the formation of a common patriot! 
it-moved. It i>. t herefore, no paradox to assert 
that out of war has come harmony. Without the 
war South Africa might have found in time a 
common nationality and a common aim, but \vln 
can tell after what vicissitudes and struggles, and 
under what flag, the union would have been con- 
summated ? Some politicians in England, while 
they hail the advent of union, continue to denounce 
t he policy which alone has made it possible. They 
condemn the war, and yet claim its results as 

triumph of Liberal policy. The grant of self- 
jjovernment to the two new colonies in 1906 has 
indeed hastened the attainment of union, and for 
this the Liberal party may justly take credit, but 
the impartial historian of the future, weighing the 

lions of British statesmen in the cause of union, 
will undoubtedly give the first place, not to Sir 
iry Campbell-Bannerman, but to Lord Milner 
and Mr. Chamberlain. 

Hopeful, however, as is the future, it is use- 
less to suppose that racialism will never trouble 
South Africa again. The new spirit animating 
the leaders of both sides has been generously 
welcomed by both the British and Dutch 
communities. But in the working out of the 
constitution the differing ideals of the two races 
cannot fail to clash. Bi-lingualism, whether 


in education <>i m the public net vice, will cause 

many yean. Recent events are a 

sufficient proof. The education law of the Orange 

i < . -I- >i i \ . whatever iu merits or demerits, has 
certainly been read by the British population as 

an attempt to depn\< thm < -Inhlren of any proper 
in t he KnL'lish tongue. Efforts have been 
made to found private schools where English can 
be properly taught. The government has dismissed 
English and Scotch inspectors for their alleged 
unsympathetic administration of the law. Adepu- 

n has been sent to England to represent the 
grievances of the l'.riti>h people. There is every 
sign of strong feeling. Lees is heard of the difti- 
eulties in the Transvaal, where the law is less rigid. 

iiny one who has any knowledge of the subject 
is a ware that there, too, administration is hampered 
by const tion arising from local quarrels and 

jealousies over language. Nevertheless one cannot 
doubt that these difficulties will in time disappear. 
There are influences at work too strong to be cou- 
1 1 oiled by legislation. As a general rule English 
parents an.- prepared that thrir ehildren shall learn 
Dutch; while Dutch parents see how essential is 
a knowledge of English. A story which well illus- 
trates this tendency is told of a small dor]) in 
the Orange River Colony. A Scotch parent com- 
plained to the Education Department that his 
small daughter had been submitted in the play- 
ground of the school to the indignity of having 
a wooden collar placed round her neck. On 


inquiry it was found that the parents, most of 
whom were Dutch, thinking that too little English 
was taught in school hours, had asked that that 
hmizu.-i.L'e mi^'ht be used during the play hours. 
There had been invented, in consequence, a mode 
of punishment which consisted in fastening a 
wooden collar round the neck of any child who 
used a Dutch word in the playground. 

A conflict is also possible in the comparatively 
near future over the policy of encouraging immi- 
gration on lines which the British party will con- 
sider of the utmost importance, but which a large 
section of the Dutch will probably resist. Immi- 
gration as free as that into perhaps more favoured 
countries is indeed out of the question, since at 
present practically all unskilled labour, whether in- 
dustrial or agricultural, is restricted to Kaffirs. But 
there is a great need of enterprising and progressive 
farmers with a small capital. The encourage- 
ment of this kind of immigrant would do much 
to quicken the country's progress. It is, too, at 
the moment the best and easiest way of strengthen- 
ing the white population against the black. But 
there is a very general prejudice, particularly 
strong among the Dutch, against the newcomer 
with which the advocates of immigration will 
have to reckon. 

In any forecast of the future it must not be 
forgotten that the new ideas, freely absorbed by 
the urban communities, are not likely to have so 
thoroughly permeated the back veld. The national 


sentiment* and feelings of the Dutch have bean 
forged by blood and in MI. and for many yean 
their patriotism will take what to an ardent 
imperialist may seem a narrow form. But its 
development, though gradual, will be sure. It 
will be enormously accelerated if the Dutch leaders 
rontmiio to be imbued with that spirit of tolera- 
1 1"! i i', ,r all parties which has been so conspicuously 
displayed by General Botha, General Smuts, and 
President Steyn. 

But, in addition to the all-powerful force of 
>nal sentiment, there are other strong causes 
disposing the peoples of the different colonies to 
sink their different t>. inter-colonial relations 
6 the war have been far from harmonious. 
Indeed, men had begun to see that the parting of 
the ways had been reached, and that if thedifft 
states were not soon welded firmly together they 
would inevitably fly asunder. Some knowledge of 
the causes of inter-colonial conflict is an essential 
preliminary to a study of the Constitution. 


MORE than one attempt has been made in South 
Africa's history to make her one nation. A short 
but admirable sketch of the subject is given in 
Lord Selborne's well-known memorandum upon 
union. The disunion of the South African people 
and the want of understanding between the Brit ish 
Government and the South African Governments 
caused all such attempts to fail, and the trials and 
tnities which have fallen upon South Africa in 
the last fifty years have been the result. The 
failure of the last attempt, made by Lord Car- 
narvon in 1876, was decisive. From that moment 
the people of the north entered upon a path 
which led them further and further apart from 
their southern and eastern neighbours. This was 
inevitable. The Boers had sought their indepen- 
dence through dislike of the British rule. It was 
their chief object to guard it by becoming strong 
and self-sufficient. In Delagoa Bay they found 
in outlet, which freed them from economic 
dependence on the Cape Colony and Natal, and as 
their strength grew, so did their national patriotism 
and their determination never willingly to accept 
the British flag. Thus their object waa to have 
as little real connexion as was possible with their 
neighbours. As time passed, the true effect of 


i, the growth of national ideals not merely 
rmitii ting but contradictory, became apparent; 
i IK! dl other meana had failed, the issue 

was set finally at reet by the arbitfament of the 
sword. With the resumption of government 

there reappeared economic rivalries between the 
colonies which, while always existing, had formerly 
been overshadowed by the racial conflict. These 
rivalries, which centred round the questions of 
<>ms dues and rai rates, the adoption of 

a common flag had done nothing to exorcise. It 
is difficult for those who live in a united and long 
tittled country like Great Britain, where economic 
activities are left mainly to individual enterprise, 
to understand the immense part which econ< 
que>t inns play in the relations between the 
n i ments of n \\ < ountries such as Australia and 
South Africa. In a community whose main object 
is to develop resources hitherto untouched, and 
w&ere the government's main \\nrk is to foster such 
development, freedom to adapt customs dues and 
railway rates to the rapidly changing needs of th< 
community is a matter of life and death. It is, 
therefore, no cause for surprise that politics should 
focus themselves round such questions. 

Questions of customs dues had always led to 
bad feeling. In old days the Cape Colony and 
Natal, controlling all the means of ingress into the 
inland colonies, had used their power in a manner 
which can only be termed unscrupulous. Like 
robber barons of the Rhine, they forced all 


who passed by to pay toll. For years their 
treasuries simply took all the produce of the 
duties paid on goods consigned to the Transvaal 
and Orange Free State. Later they were content 
with a fee of 25 per cent., which was supposed to 
represent the cost of collecting the duties, a cost 
which now certainly does not exceed 5 per cent. 
The extortions of the coast colonies led to a result 
which soon made them repent of their rapacity, 
but not before much bad blood had been created. 
The Transvaal turned to Delagoa Bay. To 
this day, as a consequence, the Boers of the 
Transvaal look upon Delagoa Bay as peculiarly 
their own port, whose interests must be defended 
in opposition to those of the harbours in British 
territory. The coast colonies came to terms, and 
an attempt, partially successful, was made to form 
a Customs Union, though before the war it never 
included every South African state. 

Soon after the war, Lord Milner, who saw the 
urgent necessity for a common fiscal policy, sum- 
moned a conference at Bloemfontein, and succeeded 
in persuading all the colonies to join a Customs 
Union. The arrangement, though carried to com- 
pletion, was not popular, and was indeed only 
ratified in the Cape Parliament by a majority of 
one vote. Nevertheless, it has been maintained 
to this day. But its life has been a precarious one. 
Twice since, once in 1906 and again in 1908, it has 
been denounced by one or other colony. Con- 
ferences have met to patch up an agreement. No 


ny has been satisfied. One has had too much 
revenue from customs; another too little; one 
has wished for higher protective duties for 

j'lu pose of stimulating South African production ; 
anot hrr has demanded lower duties in order to 
cheapen the cost of living. The Transvaal, with 
its large industrial centre in Johannesburg, and 
without any great need for customs revenue, has 
wished to revise the tariff in the direction of free 
trade, while the coast colonies, believing that, if 
manufactures were protected, they would spring 
up, not in the interior, but at the coast, owing to 
t lir lower cost of living and lower wages there, were 
in favour of hi^h.-r protection, particularly as that 
policy coincided with their desire for more revenue. 
(>n tin- other hand, a union of any kind was 
mgered by the very strong desire of the agri- 
cultural population of the Transvaal for protection 
against the farmers of the Cape Colony. Transvaal 
i era regarded the great m a r k et of Johannesburg 
as peculiarly their own preserve, and were clamor- 
ous for protection a^.tm-t the successful competi- 
tion from the Cape. During the year 1908 General 
tia had no little difficulty in stemming this 
<ind, to yield to which meant the complete 
iption of the Customs Union. For another 
reason the Union was bound to be unpopular. I 
was a treaty between different states, and it was 
^ecret. Being a treaty it could not be 
altered by any of the parliaments. It had to be 
accepted or rejected, as it stood. Its terms were 


not, therefore, subject to popular control. Its 
maintenance has indrrd been due rather to the 
fact that South African statesmen have shrunk 
from the consequences of its disruption than t<> 
any general wish to continue it. 

Railway rates have been an even more constant 
and potent source of inter-colonial conflict. The 
railways throughout South Africa are state rail- 
ways, and railway revenues have an extremely 
important bearing on the financial stability of the 
ral colonies. The traffic to the Witwatersrand 
is the most profitable of all, and it is for this prize 
that all governments and ports in South Africa 
have long contended. The railway from the Cape 
ports was first in the field, and till about 1894 
the Cape, in consequence, secured all the traffic. 
On the completion of the Natal line Durban also 
quickly obtained a substantial share. Last of all 
came Delagoa Bay, but until after the war no 
very serious competition was met with from that 
port, where there were at that time few facilities 
for handling traffic. 

The Witwatersrand may thus be compared to 
the hub of a wheel from which radiate lines to 
Delagoa Bay, Durban, and the Cape ports. It 
follows that the government which controlled the 
railways of the Transvaal was in a commanding 
position, and could play off the different lines 
and ports against one another. For years this 
has been a dominant issue in inter-colonial poli- 
tics. Any one who cared to read the reports of 

ii EffiTORK \1 i< 

the endless railway conferences held since 1806 

1 find the same story in every one of them. 

Thomas Price, the general manager of the 

Central South African Railways, was, in 1008, in 
exact 1\ th<- NMM ptMttOfl s Mr. Middelburg, the 
general manager of the Netherlands Railway 
Company, occupied in 1805. He was, in short, 
able for all practical purposes to dictate his own 
terms. Important as it was to each port to secure 
as much of the Rand traffic as it could, it \\.t- 
doubly important to the Governments of the Cape 
Colony and Natal, for tiny were accustomed to 
in ak linanrial stability largely dependen 

railway earnings, and these earnings again 
were to a great extent dependent on the trade to 
nsvaal. Unfortunately for the cause of 
harmony, the interests of the Transvaal in thi> 
:or were diametrically oppos< < <>f the 

r colonies. The revenue earned by the Trans- 
Vaal l&BWSys on every ton carried from Delagoa 
Bay was, owing to the greater mileage within the 
isvaal frontiers, much larger than that earned 
n < very ton carried from Durban or the Tape ports . 
The Transvaal Government could hardly be ex- 
pected to be so altruistic as to prefer the welfare of 
the ports of the Cape Colony and Natal to that of 
its own people and di iffic from the Delagoa 

Bay line to the Cape and Natal lines. In any case 
it could hardly have done so, even had it had the 
desire. 1m it was bound to the Portuguese 
Government, and could not act without its con- 

B 2 


sent. In 1901, impelled by the urgent necessity 
that the mines should recommence working, Lord 
Milner. without consultation with the Cape Colony or 
Natal, concluded an agreement with the Portuguese 
Government. That Government gave certain f acil i - 
ties for the recruitment of native labour for the 
mines, while Delagoa Bay obtained the security that 
railway rates would not be altered to its detriment . 
As Delagoa Bay was put in no better position than 
it had been in 1 >ef ore t lie war, no one could have fore- 
seen the result which has actually occurred. Owing 
mainly to the great improvements made in the har- 
bour itself, there has been, ever since 1901, a gradual 
but sure transference of traffic to Delagoa Bay. 
That port gets now about 67 per cent, of the whole 
Rand traffic ; the Cape ports, which in 1894 got 
80 per cent., now get about 11 per cent. Durban's 
share has also been steadily falling. 

The Cape and Natal Governments have ever 
since its conclusion continued to express them- 
selves in terms of great hostility to this agreement , 
and the British ports have watched with dismay 
and resentment the gradual diversion of their 
trade. On the other hand, the more the traffic 
went to Delagoa Bay, the larger grew the revenues 
of the Transvaal. The government and people 
of the Transvaal were not, therefore, inclined to 
pay much attention to the lamentations of their 
neighbours. Recently a new treaty has taken the 
place of Lord Milner's agreement. Its reception 
in South Africa, to which reference will be made 


later, in a good indication of the difficulty of the 

\vay question. 

But the situation, bad as it was, would have 
been worse had it not been for the wise action of 

Lord MiliuT in another direction. H\ tin- 
gamation of the railways of the Transvaal and 
IT Colony, he had at least secured that 
the latter colony should share in the prosperity of 
the I cvitable dev< 

t of Delagoa Bay should not be detrinn 
to its interests. United to the Transvaal, the 

- Kiver Colony shared in the profits of 
Delagoa Bay line. Separated, she would not only 
have lost this advantage, but would have add* <1 
double strength to the Transvaal's inclination t<> 
turn to Delagoa Bay, for the latter colony would 
tin -ii h nothing at all on traffic coming 

the Cape ports until it reached Vereeniging, 
only titty miles distant from Johannesburg, 
whereas by the amalgamation it shared in the 
l>r<>tits upon the whole line from the Orange Hi 
a distance of between three and four hundred 
miles. It was this geographical difficulty whieh 
led to an open rupture in 1895 between the Cape 
Colony and the South African Republic, when the 
latter was forced to yield only by the intervention 
of the Imperial Government. 

But this has been by no means the only quarrel 
railways. The construction of new 

with the consequent alteration 
from the ports, has been since the war the signal 


for an immediate struggle bet worn ihr colonies 
one seeking to gain the trade, the other to retain 
IE Rate wars between the governments have not 
hern avoided, and public opinion has on several 
occasions been inflamed. Th< following is one 
instance out of many. The Orange River Colony 
Government wished to build a line from Bloemfon- 
tein to Kimberley. This meant that some of the 
Kimberley traffic, which was the most profitable 
traffic of the Cape Government railways, might be 
transferred from the Cape ports to Durban. The 
Cape Government accordingly refused to allow any 
junction to be made with its lines at Kimberley. 
The Orange River Colony threatened to build to 
the border, only three miles from Kimberley, and 
transport the goods by waggon. The Cape Go vcr 1 1 - 
inent replied that it would erect a wire fence along 
the border and refuse ingress to any goods. 
Eventually an agreement was reached by which 
the interests of the Cape ports were protected for 
a term of years, and Durban prevented from com- 
peting, but this was only at the cost of absurdly 
high rates along the line itself, which go far to 
hamper its utility. 

Numerous attempts have been made to compose 
these inter-colonial differences, but they have all 
necessarily failed, since the differences arose from 
the very fact of disunion. Frequent conferences 
have been held, but without avail. In 1905, 
shortly before Lord Milner left South Africa, 
a conference was held in Johannesburg under his 


presidency. At its conclusion he made a moving 
appeal in words which well illustrate the .iitliculties 

\\hich . MMtiMMtrd him. He said : 

4 1 do not see how the policy of railway develop- 

in. nt tliroughout South A trie* can be otherwise 
than greatly retarded by the fact that the 

present system of four separate administrations 
the benefit to the country generally of any new 
line is constantly obscured and thrown into the 
.jr. .in, .I by considerations of its effect upon 
the comparative profits from the railways of tin- 
several states. 

1 1 may be established on the most conclusive 

evidence that a particular line U m th- general 

interest and would develop commerce and increase 

prosperity. Yet that line may be indefinitely 

I pecause it is going to take m< it of 

the pocket of a particular adm ion. If 

ly one pocket this obstacle would 

Vou may to-morrow find that the abandonment 
of a particular through line in favour of another 
would involve an enormous saving to the country, 
yet you may be absolutely debarred from the 
consideration of the matter, because of the 
e of state revenues which it would 

>lve. I might give scores of instances to p 

drawbacks of the present system. We have 
got into a rut, and we shall never get out of that 
rut until there is community of interest in all the 
main railways of South Africa. When that is 
achieved, we shall be able to have a real railway 
policy for the best development of the country 
as a whole, which can also be in the interests of 
the consumer. 

1 should like to record, as a parting word, my 
ion of the supreme importance of trying to 


get over that conflict of State interests in the 
matter of railways. I know it would be very 
ditVicult to adjust all interests, but even if it 
took six months to arrive at an adjustment, it 
\\ould be made for all time. What impresses m<> 
is that almost every railway question which is 
brought forward, however trivial it may be, raises 
the whole controversy, and the battle between 
irt ing interests has to be fought out over 
and over again on each occasion. You bad far 
it once for all. Would it not be 
'possible to sit down, and even if it occupied 
six months settle the basis on which all the rail- 
ways could be worked as one concern, and so end 
once for all this continual controversy ? 

' I do not wish to urge the Conference to adopt 
any platonic resolutions to-day if they do not 
wish to, but I am glad to have the opportunity, 
which will probably be my last, of expressing 
the strong feeling I have on the subject. What 
I wish is to see the principle which has been applied 
to the railways of the Transvaal and Orange River 
Colony extended to all the State railways of 
South Africa. I am certain that, whatever may 
be the prevalent opinion about pooling the rail- 
ways of the two colonies to-day, when the matter 
comes to be looked at by the historian, when the 
subject is seen in all its aspects and consequences, 
it will be regarded as a good step forward. What- 
else, to which I have been a party in South 
Africa in the last few years, may be condemned, 
I am sure that this step will not be condemned in 
the judgement of the future. I am glad to have 
had the opportunity of expressing my opinion 
that it is in the highest interests of South Africa 
to go further in that direction, and I hope that 
future conferences will succeed in finding, on 
these lines, a way out of the very great difficulties 
that at present exist.' 


Since thru the dangers whi< h Ixxd Milner so 
clearly saw have impressed themselves on the 

popular imagination. Responsible statesmen m 

1 1 Africa, who are not accustomed to talk 
lightly, have expressed on that, n 

some way out were not soon found. South Africa 
might, before many years, b<> plunged once more 
into internecine strife. Failing the attainment 
of a complete Union the Transvaal would un- 
doubtedly have gone its own wa\ . 1 1 would have 
uith the Customs Union and framed 
nl' suited purely to its own need*- ould 

have protected its nascent manufactures and it- 
agriculture against the other colonies, and 
its eyes away from tin liritish ports to Delagoa 
Bay. ^IK h a policy had great at us, and 

it might well have been that tor some years the 

svaal would have been more prosperous than 
she is likely to be in the Union. But its su 
would have been secured at tin upsnse ol ite 
neighbours' prosperity and of South 
peac< ; and : Mirts the end of which it is im- 

ihle to foresee would have arisen. Neverthe- 
less, it speaks well for the patriotism of the people 
of the Transvaal that they have paid so little 
attention to selfish hut attractive arguments of 
this nature. 

The economic conflict hctwccn thr rolomcs 
culminated last year i dlock. Immediately 

on tin- inception of respohatBrBKSrinnent the 

i. svaal Government gave notice to the <> 


Governments of its intention to terminate the 
present Customs Union. The tariff, which had 
been agreed upon in 1906 at a Conference in 
Hantzburg, had been framed with the object 
of providing more revenue for the Cape Colony 
and Natal, both of whom were then urgently in 
need of money. It had been strongly opposed 
in the Transvaal as needlessly high and as increas- 
ing the already excessive cost of living. The 
Crown Colony Government had defended their 
action on the ground that they were not prepared 
so shortly before responsible government to take 
the momentous step of breaking away from the 
Customs Union. It was with the intention of 
securing a readjustment of the tariff to suit the 
needs of the Transvaal, and also such alterations 
in railway rates as in the opinion of the new 
Transvaal Government were needed in the interests 
both of the coast and the interior, that a Con- 
ference was summoned at Pretoria in May, 1908. 
But in fact all the governments knew that any 
satisfactory settlement of the problems with which 
they were confronted was out of the question. 
The Conference, therefore, with great wisdom, 
commenced its proceedings by discussing and 
passing unanimously resolutions pledging the 
governments to summon a National Convention 
for the purpose of drafting a constitution for 
South Africa. It is true that a serious attempt 
was then made, both in Pretoria and later at 
Cape Town, to come to some settlement of the 


question* for the discussion of which the Con- 
ference had ostensibly met. But a deadlock 
soon reached The Transvaal refused to 
to an ih<nast in the customs duties over the 
Hcale of 1906; the Cape Colony and Natal 
refused to accept the Transvaal's proposals for 
tin adjustment of railway rates. Nothing what- 
ever was settled except to continue the settlement 
1 to postpone an open rupture until it 
was known whetlMF UUmphjUj political union could 
be seen i 

Apart, too, from economic questions which have 
been more immediately in the public eye, thought- 
tul men have long seen in the native question also 
a peril which menaces the future. The enlightened 
handling it would be looking too far into the 
future to say the solution of this intractable 
problem will demand the united efforts of the whole 
South African people under the leadership of the 
wisest statesmen they can choose. No other 
n is faced with a future so perilous. There 
are, it is true, twice as many negroes in the Southern 
States as there are in South Africa, but in the 
United States as a whole the white population 
vastly outnumbers the black. The white men of 
the south have behind them the enormous white 
reservoir of the north. Fn South Africa there are 
five Kaffirs to every white man, and they are 
Basing faster. Already they have a monopoly 
of all the unskilled labour of the count: 
they are beginning t<> compote in the skilled 


trades also. Will the white man be able to hold 
his own ? The growth of a poor white class which 
is too ignorant for any skilled trade and yet 
-es to do * Kaffir work ' is an ominous sign. 
The future relations between races and their 
reaction one upon the other are obscure, but it is 
raanifot that the white man, far from improving, 
can only maintain his position by demonstrating 
that, man for man, he is a better and more efficient 
instrument of labour than the Kaffir. Some com- 
petent observers believe he will do so ; others, 
more pessimistic, predict the gradual submerge n< < 
of the white population, or in the alternative the 
adoption of methods of repression leading to a 
war of extermination. Whatever the differences 
of opinion may be, most men recognize that the 
problem must be treated as one throughout South 
Africa. Hitherto the opposite policy has been 
pursued, and must ultimately have led to disaster. 
The Cape Colony had one native policy ; Natal 
another entirely different ; the Transvaal and 
Orange River Colony a third. No one who knows 
the different stages of development among the 
different tribes would advocate absolute uni- 
formity of administration. But it is at least 
necessary that the problem should be viewed as 
a whole, and that different remedies should not 
be applied to the same disease. The natives of 
Pondoland are not very different from those in 
southern Natal ; but they are living under an 
entirely different system of government. As it is 


the ever-widening gulf between the native policies 
of the different states not only endangered the 

vement of union, but has left to the Union 
a thiv.itemng problem \\hnh mu-t 
be tackled in tin . In another gei 

tinn tli, gulf would probably have been too wide 

f bridged. Apart, too, from the more subtle, 
though infinitely more dangerous, effect* of the 
interaction between race and race in everyday 

there is the risk of a native war with which 
one or other of the colonies may not be able to 
cope. There is little doubt that the white popula- 
n united under one government rong 

^enough to deal with any danger of the kind. But 
tin- .Linger of the existing situation and thr need 
for some Uniterm scheme of local defence were 
recently illustrated by the Zulu Rebellion in Natal. 
Disunion not only brought with it many 
1 1 meant also that government was 
iumbrous, and expensive. Four separ- 
ate systems were needed for the control of one 
million white inhabitants. There were four Parlia- 
iling identical problems by means of 
differing laws ; there were four Courts interpreting 

" laws in diverse manners; there were four 

ernors with their accompaniment of Go\ 
nirnt Houses, retinues, and staffs ; there were four 
Governments, driven in every sphere of their 
activity to recognize the necessity of unity and 

latitude of action and yet failing to achieve 
either ; th n treasuries, each borrowing 


money \\ ithout regard to the needs of the others ; 
e confusing differences in many of the laws, 
especially in such matters as patents, marriage, 
inheritance, and naturalization. A man might be 
a British subject in the Cape Cokmybut not in the 
Transvaal. Taken alone, all these elements of waste 
and confusion were a potent argument for Union. 

Those also, perhaps few in number, who were 
capable of grasping the necessities not only of 
South Africa but of the British Empire, recognizing 
the rapid development of the imperial situation, 
and that the empire's fate may well depend on the 
creation of some form of imperial union within 
the next twenty or thirty years, foresaw how 
greatly the difficulties of any action would be 
increased if no single government were responsible 
for the affairs of South Africa. South African 
union is in itself a great step forward in the 
direction of imperial consolidation. It simplifies 
at once all imperial problems and particularly 
that of defence, which for the safety of the empire 
and its component parts must be grappled with 
at once. 

During the last two years an active work of 
propaganda in favour of union has been carried 
on. The necessity of educating public opinion was 
recognized by Lord Selborne, whose work on 
behalf of Union during his tenure of the offices 
of High Commissioner and Governor of the 
Transvaal is recognized throughout South 
Africa, His well-known Review of the Mutual 


Relation* of the British South African Colonies, 
published in 1007, is admitted to have had a 
marked effect on public <|>im<>n. The educative 
progress was continued and carried a step further 
by the anonymous publi. .it ion of a work entitled 
The Government of South Africa. The 
.timed at giving an epitome of all the activities of 
government in South Africa, with tin- ot 
\ plaining defects in the existing systems, so far 
as they were due to the absence of a central 
government, and providing the materials of a 
sound judgement on all those questions which 
.Id arise in the formation of a new constitu- 
tion. The book disavowed any intention of 
id -mul at ing a definite scheme of union, but it 
is noticeable that the authors found themselves 
driven to recommend the unitary form of go\ 

- Later, closer union societies wore formed 
tin. )ughout South Africa. They served the double 
purpose of centres of propaganda and of an 
organized force in case an active campaign in 
favour of the movement were found necessary. 
Undoubtedly this active work of education not 
only did mm -h to mould public opinion, but has 
also been not without its effect on the actual 
form of the constitution itself. 
It was in these circumstances, and with the 
\vledge of the responsibilities resting upon 
them, that the members of the Convention ap- 
pointed by the four Colonial Parliaments met in 
1 irban in October, 1908. 



I r is interesting to compare this body, which is 
likely to become famous in South African history, 
with that renowned assembly, the Federal Con- 
vention of the United States, and the Conventions 
of Canada and Australia. We are told by John 
Fiske, the author of The Critical Period of American 
History, that in its composition the Federal 
Convention of the United States left ' nothing to 
be desired. In its strength and in its weakness 
it was an ideally perfect assembly. There were 
fifty-five men, all of them respectable for family 
and for personal qualities men who had been 
well educated, and had done something whereby 
to earn recognition in these troubled times. 
Twenty-nine were university men, graduates of 
Harvard, Yale, Columbia, Princetown, William 
and Mary, Oxford, Glasgow, Edinburgh. Twenty- 
six were not university men'. The thirty-three 
delegates of the Quebec Convention of 1864, 
curiously enough the exact number of the South 
African Convention, are stated by Sir John 
Bourinot, not perhaps a very critical judge, to 
have been ' all men of large experience in the work 
of administration or legislation ' ; but the names 
of few of them, with the notable exception of 
Sir John MacDonald, are known beyond the con- 


fines of il. -11 11 ative land. The Australian Con- 
H were conspicuous for their large proportion 
ble lawyers, possessed of great oonstitutional 
learning. The South African Convention was prob- 
ably different in its character from them all ; 
certainly it was unlike tin* American Convention. 
Its outstanding characteristic was the preponder- 
ance of the farming element. \\lu> h is everywhere 
supposed to be essentially conservative in its 
ire. Out of the thirty-three delegates, about 
one-third were farmers pure and simple ; the 
interests of several of the remainder, such as 
Dr. Smartt and Sir Percy Fitzpatrick, lie largely 
in farming ; and still others, such as General 
Smuts, Mr. Hull, Sir Henry de Villiere, and a few 
<>, though not themselves actually engaged in 
farming, are directly interested in it. There 
were, in addition, about ten lawyers, two or three 
men connected with commerce and mining, two 
journalists, and three ex-officials. In contrast to 
the United States Convention there was a con- 
nous absence of university men. A few had 
been trained at the Cape University, but the 
famous Universities of Oxford and Cambridge 
claimed only a single representative in the person 
of General Smuts. It was not so much for educa- 
t ion as for a practical knowledge of the world and 
of politics that the Convention was conspicuous. 
South Africa has passed through troubled years, 
and those men who have played a great part in 
her affairs have been tried and tested in the 



furnace of experience. War itself is a supreme 
test of character, and no man can successfully 
pass such a trial without some conspicuous qualii iai 
for leadership. Botha, Steyn, Smuts, De la Rey, 
and De Wet, recognized leaders of the Dutch, 
have, by their conduct in the struggle for indepen- 
(!! ice, fully earned the confidence and trust of their 
people ; and the qualities that sustained them in 
war have now been displayed for their country's 
benefit in the peaceful campaign for union. On 
the British side, too, the delegates present at the 
Convention were men whose natural capacities had 
brought them to the front in the struggles of the 
last ten or fifteen years. As examples it is only 
necessary to mention the names of Dr. Jameson, 
Sir George Farrar, and Sir Percy Fitzpatrick. 
Then there were others, ' elder statesmen ' and 
men of South African reputation, whose long and 
bitter political struggles, whether in the Cape 
Colony or elsewhere, might well have warped their 
judgements, but upon whom the events of the last 
three or four years appear to have had a mellowing 

The Convention took time over its task. It 
met first on October 12 in Durban ; it completed 
its work at the end of the first week in February 
at Cape Town. But it did not sit continuously 
during these four months. There were two inter- 
ludes, the first of a fortnight or so between the end 
of the Durban session and the beginning of that at 
Cape Town, and the second of nearly three weeks 


mtmaa holidays. Nevertheless, the 

k was never interrupted. Much was done 

during the intervals between the regular sittingH 

'ittmjj the ( 'on\ention's resolutions into the 
shape of a bill, and in preparing new ground. 
During tin- \\h<le of October the 
remained in Durban. Much progress was made 
.UK! man\ diHirultio overcome. Then, partly 
because of the increasing heat, but partly, also, 
because it was felt necessary that the delegates 
should ; me in the calm of their own homes 

to reflect on certain very debatable matters 
under consider, it ion, an adjournment was made 
to Cape Town. Moreover, the Cape delegates were 

i rally anxious that the Convention should have 
an opportunity of seeing for themselves the 
beauties of the parent city. The Convention 
remained at Cape Town until it had completed 
ming a constitution. Some months 
later there was a short but critical session at 
Bloemfontoin to consider the amendments sug- 
gested by the various parliaments. 

As this sketch does not pretend to be a history 

he movement towards union, it is unnecessary 

lo more than refer briefly to the proceedings 
in the respective Parliaments, and the nature of 
the amendments recommended by them. In the 
Transvaal there was no opposition at any stage. 
The leaders of both parties wisely insisted upon the 
great danger of any tampering with the Constitu- 
tion signed by the Convention at Cape Town. 


They impressed upon their followers the fact that 
the document was the result of compromises by 
all parties. It was thus a delicately -balanced 
equipoise, all parts of which were interdependent, 
and no alteration could be made without the risk 
of a total collapse. Their advice was taken, and 
the draft was agreed to by the Transvaal Parlia- 
ment without a single amendment being recom- 
mended to the Convention. 

The delegates in the other colonies also laid 
stress in their Parliaments on the danger of altera- 
tion, but with less success. In the Orange River 
Colony only one or two amendments were sug- 
gested, but they were of vital importance. They 
related to the burning question of * equal rights ' 
and * one vote, one value '. Every one knew that 
the Convention had had great difficulty in coming 
to any agreement at all on this matter, and that 
to re-open it again might wreck everything. The 
amendments recommended by the Parliament of 
the Orange River Colony were practically identical 
both in form and substance with those soon after 
adopted in the Cape Parliament. The Dutch 
leaders in the Orange River Colony were clearly 
in sympathy on this point with those leaders of 
the Bond to whom this part of the Constitution 
was so objectionable. 

In the Cape Parliament, against the advice of 
all the delegates from that colony, amendments 
were passed involving the practical abandonment 
of proportional representation, and the re-opening 


bhfl \\liole question of 'equal rights'. But, 

igh their reluctance was obvious, the delegates 

the Government side found themselves 

obliged to follow the rank and Hie of their party, 

and vote for fundamental alterations in the docu- 

ment \\hirh they had signed but a few weeks 

before. Other amendments, of greater or less 

importance, most of them of an un controversial 

were also recommended by the Cape 


In Natal countless amendments were brought 

ard. Most of th<>m were merely obstructive; 

some were ridiculous. Several amendments were, 

however, carried, and the Convention found it 

necessary, in order to placate Natal, to go as far 

as possible in accepting them. But none of them 

did anything to improve either the form or tin- 

stance of the Constitution. 

In reality, however, the only amendments 

\\lihh proved at the Bloemfontein session of tilt- 

Convention to be a serious danger were those 

passed in the Parliaments of the Cape and Orange 

r Colony. Fortunately, as is explained in 

< 'h.ipter VI, the Convention managed, in the end, 

to discover a solution of the ditti* -ul 

After the Convention had dealt with the amend- 
ments recommended by the Parliaments, the final 
approval of the different colonies had to be ob- 
t uned. In none of them except Natal was it 
considered necessary to adopt any special means 
(sting the popular feeling. It was contvtly 


supposed that the Parliaments sufficiently repre- 
sented the will of the people. In one or two 
colonies, indeed, there was some agitation for 
a direct popular vote by means of a referendum, 
but it soon collapsed. The Dutch leaders \\rn- 
-tnuigly opposed to it, and stigmatized it as 
a new-fangled idea to which their people u (re- 
quite unaccustomed. So long indeed as the Boers 
are content to abide by the opinions of their 
leaders, what was the use of going to the trouble 
of taking a referendum ? There was everything 
to lose and nothing to gain by so doing. Nor did 
the British population ask for it. They were satis- 
fied with the Constitution, and wished to avoid 
anything which might cause a delay in carrying 
the change into effect as soon as possible. 

In Natal, on the other hand, there was much 
less enthusiasm for union, and much more sus- 
picion of the motives of those who were bringing 
it about. The people of Natal, cut off as they are 
by the great wall of the Drakensberg from the 
rest of South Africa, have always lived a life of 
their own. They have prided themselves on being 
almost purely British, and on their maintenance 
of British methods and ideals. It was natural 
that they should hesitate to abandon their inde- 
pendence and cast in their lot without reserve 
with the rest of South Africa. To them it seemed 
equivalent to accepting Dutch dominance. The 
Natal press was throughout, until almost the very 
last week or so, wholly opposed to union, and it 

in Mil CONVENTION :t-.i 

aeemed very doubtful to which side public opinion 
leaned. In these circumstances it waa deairable 
to teat the feeling of the colony by the moat direct 

means possible. A r*/,nn<lum wa.s then-fun- taken. 

Contrary to general expectation it revealed an 

overwhelming majority for union, a good teati- 
mon\ to the sound aenae of the people of the 
OOlony. ' r sooner or later Natal muat have 
d the union. She would have discovered 
that no other course waa possible. There waa 
every reason, therefore, why she should come in 
uillingly at once. 

Thus, almost within t \selve months of the tirat 
being the project had been carried to 

I lft ion. jn May, 1908, the Pretoria Con- 
nee resolved to recommend the summoning of 
a National Convention : hy June, 1909, a South 
African Constitution had been accepted by every 

Unlike its Australian predecessors, the Con 

sat in secret, and therefore no reference to 
its proceedings can be made \\ithout a breach of 
:<!( -m -e. It is impossible to doubt the wisdom 
of this procedure. The questions handled were so 
delicate, and the feeling upon them throughout 
the country so divided and so acute, that it is not 
conceivable that an agreement could have been 
reached in public. It is well known that, on more 
occasions than out . feeling in the Convention itself 
ran high. Its work was only brought to a success- 
ful issue because no apj ia possible to the 


gallery. The public was brought to recognize 
that the result must in any case be a delicately- 
balanced equipoise, and, instead of being daily 
inflamed, was content to wait and pass a final 
judgement on the completed work. Thus the 
men who represented it were emboldened to act 
calmly and with courage, and with a due sense, 
not only of the immediate present, but of their 
responsibility towards future generations. As it 
was, and as must no doubt always be the case in 
such matters, much was settled outside the Con- 
vention itself. Compromises that seemed impos- 
sible in the formal atmosphere of the Convention 
room, settled themselves sooner or later through 
the medium of personal influences. This process of 
gradual solution, which was incessant throughout 
the Convention, would have been impossible in 
the glare of publicity. 

The Convention took its work seriously, and is 
admitted to have done it well. The Transvaal 
delegates and no doubt the representatives of 
the other colonies as well prepared themselves 
thoroughly for their task. The former, indeed, 
spent some weeks before the Convention on 
the work of preparation. All important matters 
were thoroughly discussed by the delegation 
as a whole, and as a consequence it arrived 
on the scene of action united. The Transvaal 
delegation alone was assisted throughout the 
Convention by a staff of legal advisers and experts. 
The solid front presented by the Transvaal 


delegate*, both British and Dutch, throughout 
the Convention wan of Ant-rate importance on 
the result. 

It is an ill wind that blows nobody good. All 
classes in South Africa, politicians and people alike, 
ud tired of disunion. Tiny knou tin 
disasters which come from it, and they have 
experienced the calamities of war, and the leaden 
it all better than any one else. They met, 
t hrrcfore, in the determination to have no more of 
it and to make one big effort for union, so 
South Africa might henceforth live in peace. It 
was this spirit of enthusiasm which alone carried 
the Convention through its work at Durban and 
Cape Town. Later events, and particularly tl it- 
strong opposition of a certain section of the Bond 
in Cape Colony to provisions which to the British 
section were fundamental, revealed the thinness 
of the ice over which the Convention had skated. 
The proceedings in the Cape Parliament, indeed, 
Completely damped the generous spirit shown 
at the first two sessions of the Convention. Hut 
tins, after all, was only a temporary eclipse. 
It remains true that all sides have been ready 
t<> make great concessions to attain union. They 
had learnt the trouble which mine of preferring 
the interests of the part to those of the whole, 
anl they were determined not to repeat the 
mistakes of the past. It was this spirit of 
tolerance, born of a profound conviction that the 
continuance of racial and inter-colonial struggles 


would be fatal to South Africa, which led the 
Convention, although representing two races who 
for many years have opposed each other so 
bitterly, to display in their work a mutual trust 
far greater than that shown by the French in 
Canada or by the representatives of the different 
States, although of the same nationality, in the 
United States and Australia. Thus was achieved 
in a few months a work which, as Mr. Balfour 
said in the House of Commons, is without parallel 
in history. 



IN form, the draft Constitution in not unlike 
those of Canada and Australia, or even the United 

States; in spirit, tin- difference is profound. Tin- 
three latter are federal constitutions. There are 
important differences between them, but they all 

orm to what Professor Dicey, in his work on 
The Law of the Constitution, has stated to be the 
three leading characteristics of federalism the 
supremacy of the constitution, the distribution 

ng bodies with limited and coordinate authority 
of the different powers of government, and the 
authority of the courts to act as the interpreters of 
the constitution. The South African Constitution 
possesooo none of these characteristics. The Par- 
liament of the 1'iiion, and not the Constitution, is 
supreme; power i> not distributed among bodies 
with limited and co-ordinate authority, but resides 
ultimately in the Parliament ; the Courts will have 
no more authority than they have in Great Britain 
to act as interpreters of the Constitution. It is 
from the principle of the supremacy of Parliament 
that flow all the fundamental differences between 
a federal constitution and a unitary constitution 
sin -h as that framed for South Africa, The South 
an Parliament is not, it is true, supreme in 
manner in which the British Parliament is 


supreme, because it is subject to the limitations 
which the British Constitution imposes upon all 
Colonial parliaments, and further because in the 
case of certain sections of the Constitution its 
plenary power of amendment is qualified. But 
in fact and in essence within South Africa it is 
all-powerful. In the case of the British Constitu- 
tion the supremacy of Parliament has been called 
by Professor Dicey ' the clue to guide the inquirer 
through the mazes of a perplexed topic'. It is 
no less the first principle of the South African 
Constitution. It is easy to establish the truth of 
this statement from the terms of the Act itself. 
In the first place, Parliament is expressly stated 
to have full power to make laws for the peace, 
order, and good government of South Africa. Again, 
any ordinance (as the legislative acts of the 
Provincial Councils are named) is valid so long and 
so far only as it is not repugnant to any Act of 
Parliament ; and, finally, Parliament may amend 
the Constitution by a simple act of legislation 
just in the same way as it may amend any other 
law. There is, therefore, no such legal sanctity 
about the Constitution as there is in the cases of 
the United States, Canada, and Australia. Par- 
liament's power of amendment is, however, qualified 
in two ways. Certain provisions relating particu- 
larly to the legislature cannot be amended at all 
for a definite, though short, period ; certain 
other provisions, i.e. those relating to the native 
franchise in the Cape Colony, to the equal treat- 


ment accorded to the English and Dutch language*, 

and to what are known a* * equal right* \ can 

only be altered by a two-third* majority of both 

ises of Parliament Hitting together, and in the 

case of Mill oihn |>i<vi*ion* v including the section* 
providing for 'equal right* ', and for the existence 
of provincial council*, every amending bill i* 
reserved for the King's pleasure. The section 
of the Act, however, uhich define* the various 
methods of amending the Constitution can itself 
be amended by a similar majority of tun-third*. 
Legally, therefore, the only limitation on the 
complete power of Parliament over the Const it u- 
tin is the requirement of a two-thirds majority 
in certain particular cases. If the South African 
Parliament, in the exercise of its legislative power* 
ignored this requirement, any law so passed, being 
in conflict with t he Constitution, or, in other words, 
with an Imperial Act of Parliament, must be de- 
clared by the Courts to be null and void. 

Professor Dicey has charged the framers of the 

iah North America Act with 4 diplon 
inaccuracy ' because they asserted in its preamble 
the Dominion is to possess 'a constitution 
similar in principle to that of the United Kingdom '. 
Canadian critics, looking rather at the system of 
parliamentary government in force in Canada 
than at its essentially federal nature, have denied 
the justice of the charge. Whatever the merit* 
of the controversy as applied to Canada, there i* 
no doubt that the terms of the Canadian preamble 


would have been entirely applicable to the South 
Africa Act. 

In South Africa this fundamental principle of the 
supremacy of Parliament has in three colonies 
been greeted as the great achievement of the Act, 
and in the fourth has been condemned as a 
disastrous error. But, notwithstanding the hot 
opposition of critics in Natal, which the history 
and ( ire u instances of that colony render natural, 
there is little doubt that opinion in South Afri< ;i 
is overwhelmingly in favour of the unitary as 
opposed to the federal principle. The panegyrics 
which American writers have been accustomed to 
lavish on the Constitution of the United States, 
and the imitation of that Constitution by Canada 
and Australia, probably explain the widespread 
opinion that federalism is a form of government to 
be sought as an end in itself, and not one which 
should be accepted only when nothing better can 
be obtained. But federalism is, after all, a pis 
otter, a concession to human weakness. Alexander 
Hamilton saw its dangers and only acquiesced 
because by no other means was union possible. 
In Canada Sir John MacDonald strongly favoured 
a legislative union, but was obliged to bow to the 
intense provincialism of Quebec. In Australia the 
narrow patriotism of the different states has im- 
posed upon the Federal Government limitations 
which are generally admitted to be checking that 
country's advance. Federalism must be accepted 
where nothing better can be got, but its dis- 



advantages are patent. It means division of 
power and consequent irritation and weakness in 
the organs of government, and it tends to stereo- 
type and limit tin* development of a new country. 
South African statesmen have been wise to take 
advantage of the general sentiment in fa von 
;i < loser form <>f union. It is remarkable that South 
Africans should have succeeded where almost all 
othrr unions have failed, in subordinating local 
to national feeling, and that the people of each 
colony should have been ready to merge the 
identity of their state, of whose history and 
lions they are in every case intensely proud, 
in a wider national union, which is still but a name 
to thrni The truth, as has already been stated, 
is that bitter experience has taught them the 
evils of disunion. The lesson is confirmed for 
thnn by the difficulties in which Australian 
federalism is floundering. They u^ree with (ieneral 
Smuts in his emphatic expression of the immense 
advantages of a strong government, especially in 
a country faced, as South Africa is, with problems 
\\hirh may well appal the stoutest and most 
heart. Thr racial question between 
British and Dutch, the economic and social 
questions of capital against labour and town 
against country, administrative questions such as 
the elimination of animal diseases which nature 
has lavished on the country with such abundance, 
all require uniform treatment and firm handling. 
ill these are of minor importance when com- 


pared with the black shadow of the native problem. 
* The white people of South Africa,' as Lord 
Selborne has truly said, ' are committed to such 
a path as few nations have trod before them, 
and scarcely one trod with success.' The darkness 
which surrounds the future of the white and black 
races is impenetrable, and opinions as to the path 
which leads through to the light are as far apart 
as the poles. Men agree only in resolving that 
a great effort must soon be made to reach a com- 
mon opinion, so that the united strength of the 
whole community, centred in one government, may 
be directed towards the solution of this great pro- 
blem. Failing this, disaster awaits South Africa. 

The supreme power given to the Parliament of 
the Union has been criticized in some quarters as 
excessive and dangerous to liberty. The criticism 
is not well founded. There is no more curious 
phenomenon in modern politics than the distrust 
of representative government which some forms 
of democracy have engendered. In the United 
States this feeling has gone to extreme lengths, 
and in the newest constitutions the legislature is 
hedged about by innumerable restrictions, and 
in some cases may not meet oftener than once 
in two years surely a strange commentary on 
the power of public opinion to control the people's 
representatives under a form of government where 
responsibility is not centred in some one authority. 
The unfortunate experiences of the American 
democracy are probably due to the fundamental 


error of all American coiiMitutiMii- m separating 
legislative from executive p<> Where, a* in 

tish self-governing countries, there is no such 
separation, and where in consequence the exe< 
tive and legislative authorities, the cabinets and 
parliaments, react upon and mutually control 
each ..ih. -I, both being subject in the Im.jj run to 
public opinion, no harm has come from trusting 
t lie legislature completely. In countries where the 
people are more accustomed to revolutions than 
to constitutional government, to grant complete 
freedom to the legislative body might be really 
dangerous. But both British and Dutch in South 

rica are essentially law-abiding. What reas< 
indeed, is there to suppose that the Parliament of 
the TH ion will be more revolutionary than the 
parliaments of the colonies T According to the 
well-established practice of the British Constitu- 
tion. these latter have always possessed full power 
to amend their own constitutions. That power 
they have never abused. They have now agreed 
to transfer it in its fullness and entirety to the 
Government of the Union. It is to be expected 
that tii<- moral sanctions which were sufficient in 
the past will be sufficient in the future. Custom 
is at least as strong as law, and while the Const 
tut ion will certainly be amended, since it must 
harmonize with the rapid growth and changing 
(. ire u instances of a young nation, every parliament 
will be in honour bound not to violate its spirit 
for any selfish ends. 


But although ultimate authority is thus con- 
centrated, instead of being distributed as in 
a federal system, the framers of the Constitution 
recognized the dangers of too great centralization. 
Indeed, the area to be governed is so large that 
the grant of some fairly wide powers of local 
government was essential. The problem was com- 
plicated first by the determination to abolish the 
existing colonial constitutions, a step which could 
not be avoided, and secondly by the absence in 
South Africa, except in the Cape Colony, of any 
indigenous system of local government. It was 
necessary, therefore, to create afresh within the 
provinces some new framework of government. 
The provincial constitutions thus framed give 
rise to several interesting questions which will 
be touched upon later. For immediate purposes 
reference need only be made to the matters 
upon which legislative power is delegated to the 
Provincial Councils. The list is to a large degree 
copied from the Canadian Constitution, but it 
covers less ground. The provinces may raise 
local taxation, provided it is direct, may borrow 
money with the consent of the Union Govern- 
ment, may legislate upon all such local matters as 
municipalities, hospitals, and local undertakings, 
and upon all other matters which the Central 
Government may consider to be of a local or 
private nature, or which Parliament may delegate 
to them. They have also legislative, and conse- 
quently administrative, power over education, 


exclusive of higher education, for five yean 
after union, and thereafter until Parliament 
decides otherwise, and over agriculture * to the 
extent and subject to tin- condition^ to b- drtinrd 
by Parliament '. There are evident signs of 

promise in these arrangements. It is in- 
consistent, for instance, with the whole spirit 
of the Act that so important a subject as educa- 
tion, doubly important in a country where the 
language question raises such fierce controversies, 
should be left to the tender mercies of bodies 
\\hich are generally expected to be the haven of 
mediocrity. It was earnestly to be hoped for the 
sake of future peace that the education question 
would have been treated upon broad and uniform 
lines. But this cannot now be expected. If the 
past may point a way to the future, the question 
will, at any rate in the Orange Free State, be 

Hod in a spirit which will supply fuel to the fires 

icialism. This concession to provincial feeling 
is limited, it is true, to five years, but those who 
obtained it must obviously hope that, once the 
provinces have enjoyed it, they will not lightly 
give it up. The future will show whether they are 
right. Meanwhile the provision is certainly one 

he least satisfactory in the Constitution. 
As to agriculture the terms of the Act are more 
ambiguous. Parliament may interpret it literally 
and keep much of the control in its own hands. 
Indeed, when the matters dealt with by the 
different agricultural departments are examined, 

i> -2 


the importance of some central control in almost 
all cases becomes manifest. In the case of cattle 
disease, the greatest scourge of the country, and 
of locusts such control is indispensable. The 
negligence of one provincial government might 
otherwise render abortive the vigilance of the 
others. It is useless to destroy every swarm of 
locusts in the Transvaal if they are allowed to 
breed with impunity in the Cape Colony. More- 
over, in questions of research and scientific work, 
which occupies so large a sphere in a modern 
agricultural department, it seems a useless waste 
to multiply laboratories throughout the country. 
It may, therefore, be anticipated that Parliament 
will show itself loth to part with any powers which 
it can with reason retain. 

Compromise again is written large over the pro- 
vision surely a strange one that the provinces 
may legislate upon ' all matters which in the opinion 
of the Governor-General-in-Council are of a merely 
local or private nature in the province'. There is 
probably no other instance in a British Constitution 
of a provision by means of which the legislative 
power of Parliament may be indefinitely dimi- 
nished without any reference to Parliament itself. 
The Governor-General-in-Council may change his 
opinion from day to day ; certainly from year to 
year. May he, therefore, withdraw a power he 
has once granted ? Apparently he may treat any 
question, even the native question, as private and 
local, and no one may gainsay him. The provision 


IB a blot upon the Constitution. While, however, 
it may make con ual lawyers shudder, it* 

practical effect will probably be small. No govern- 
ment in likely to fly in the face of Parliament, and 
no Parliament ^ likely to acquiesce in a diminution 
of its authority. Moreover, if governments are 
found to abuh discretionary power, Parlia- 

innit can as a last resort amend the provision. 

<> brief survey given of the division of power 
between the Union and Provincial Governments is 
snHieient to show the immensely preponderating 
authority of the former. With the exception of 
education and agriculture, the Provincial Govern- 
ments are restricted to purely local affairs, and 
their power even here is not exclusive. Indeed, 
r nliament may, \\ith the consent of the Imperial 
Government, entirely abolish the Provinces. South 
African statesmen have thus proceeded on an 
entirely different plan from that followed either 
in America or Australia or Canada. In the two 
former countries the federal constitution was 
super i in | >osrd on the existing state constitutions, 
the latter remaining in force except where they 
were inconsistent with the federal constitution; 
only rcrtain matters of national importance were 
transferred to the central government, the residual 
power remaining with the states. In Canada, on 
the other hand, the separation of Quebec from 
Ontario made it necessary to frame a new constitu- 
tion for each of these provinces, but the remaining 
ial constitutions were left in force except 


in so far as they were repealed by the Constitution. 
An exhaustive division of power between the Cen- 
tral and Provincial Governments was attempted, 
the powers given to the latter being large and in their 
nature exclusive. In South Africa a bolder course 
has been pursued. Existing colonial constitutions 
are swept away, and the Act sets up a new frame- 
work of government, not only for the Union but for 
the provinces as well. Moreover, the Union takes 
over at once every important function of govern- 
ment, and there is none which legally it may 
not assume. On the appointed day all existing 
governments will disappear, to be replaced at first 
by a national government alone. A few months 
later the Provincial Governments will be formed. 
It is easy to realize, therefore, the immense responsi- 
bilities which will devolve upon the Union Govern- 
ment, and the boldness of an experiment which 
proposes wholly to demolish the existing framework 
of government over so vast an area. It is now 
necessary to see what are the organs of government 
which are to take its place. 



I i is characteristic of South Afn< i that, con- 
trary to Australian example, the portion of the 
Act dealing with the Executive should precede 
that uhirh deals with Parliament. The power of 
Parliament over the Executive is probably not so 
great in practice in South Africa as in other parts 
of the British Kmpire. The causes are various. 
In the first place, except in the Cape Colony, there 
is no parliamentary tradition. It may be difficult 
now to foster. For even in Great Britain the 
decay of Parliament is noticeable, and everywhere 
ents seem to be failing to cope efficiently 
\sitli the burdens imposed on them by the growth 
of state socialism, and the complexity of modern 

Perhaps, however, the chief reason is the ten- 
dency of the Dutch to give their confidence to the 
government of the day. There is a strong feeling 
among them that it is disloyal to criticize the 
Government. They have not arrived at the stage 
of believing that it is the business of an opposition 
to oppose. K at In T they look upon any such action 
as unpatriotic. K\m immediately after the war 
many of them refrained, owing to this sentiment, 
11 opposing the Crown Colony Government. 


They argued, like the Duke of Wellington, that 
His Majesty's Government must be carried on. 

A further consequence of this tendency is that if 
a leader has once proved himself he may reckon 
with confidence on the implicit trust of his fol- 
lowers. All this tends to place great power in the 
hands of the government of the day, certainly if 
it be a Dutch government. A good example of 
this is to be found in the very success of union. 
The entire lack of opposition to union among the 
Boers in the Transvaal and Orange River Colony 
is quite as much due to their faith in their leaders 
as to their liking for so revolutionary a change. 

The provisions relating to the Executive require 
little comment. They do not depart from British 
precedent. There are to be not more than ten Minis- 
ters of State administering Departments of State, 
all of whom must be members of Parliament; but 
as these clauses have been interpreted in Australia, 
there seems nothing to prevent Ministers without 
portfolio being added to the Ministers of State to 
form the Cabinet. The Government is clothed 
with all the powers and authorities formerly vested 
in the governments of the Colonies, except such 
as are in the Act vested in some other authority, 
such as the administrator of a province. The exe- 
cutive will be installed in office before the election 
of Parliament. 

In this chapter of the Act, also, Pretoria is fixed 
as the seat of government. This shows that its 
framers intended that ' Government ' should here 

v THI-: I-:\K' i 1 1\ i. 57 

denote merely Executive Government, and not 
Legislative Government also, Gape Town ha 
been fixed aa the aeat of 

The choice of a capital was bound to be a matter 
xtreme difficulty. There IB nothing elae win* h 
brings home BO directly to the popular imagination 
thr sacrifices which union entails. Where the 
results of a great political change are incalculable, 
men may believe that they will be great, and 
-nil be ready to trust the future. But here is a 
sacrifice of which there can be no doubt. The 
losses which may follow to individuals may be 
exaggerated, but tin- tran^tnvnee of the auth< 
of government to a centre, perhaps hundreds of 
miles away, and the exaltation of a rival city are 
mat ters which come home to every citizen. Luckily, 
in South Africa there was no difficulty so great as 
the irreconcilable rivalry of the great Australian 
< 1 1 1 cs of Melbourne and Sydney. None the less, the 
obstacles to any settlement were formidable. Cape 
Town had always held that it possessed the 
prescriptive right to be the capital of a united 
South Africa, and until a few yean ago it would 
have had the support of the mass of South African 
opinion. Indeed, until the meeting of the Con- 
"ii the people of Cape Town had hardly con- 
ceived it possible that the capital should be 
elsewhere. (\ij)e Town is the most ancient eity of 
South Africa. It is the place at which its history 
begins. In 1508, Almeida, the Portuguese navi- 
gator, landed on the shores of Table Bay, only to 


meet his death at the hands of t hr Hottentots ; 
in 1652, Van Riebook founded the first Dutch 
settlement, and established a port of call for ships 
bound for the east. 

The struggles of the small community against 
man and beast are a fitting prelude to South 
Africa's strenuous history. The Hottentots were 
a dangerous enemy, and the old block-house, 
\\liirh was used to watch for their coming, still 
stands high on the slopes of Table Mountain. 
Wild beasts were numerous, and it is recorded that 
a man was actually carried off by a lion from the 
Castle. It was from Cape Town that the Dutch 
farmers ventured forth into the wilderness and 
began those wanderings which form the romance 
of their nation. Nor is its history its only claim. 
For the Cape peninsula is one of the most beautiful 
spots on earth, and its inhabitants may be excused 
for believing that no one who had come under 
the influence of its charm could wholly ignore its 
claims to be the capital. The great uplands and 
vast plains of the high veld have a fascination of 
their own, from which few escape. But to those 
who have been nurtured on England's sea-breezes 
there comes at times a longing for the sight and 
sounds of the sea. To one who has dwelt long 
in the dry and parched interior there can be few 
pleasures more intense than to stand on the 
glittering sands of Muizenburg, and to breathe 
the moist and refreshing wind blowing over the 
waters of False Bay straight from the South Pole. 

v mi: i:\ECUTIVE .v.i 

As be gaze* over the blue sea there rise before him 
on one side the majestic mountains of Hottentot's 
Holland, while on the other he sees the soft out- 
Inn of the high hill* above Simonstown, stretch- 
ing doun to the bay, until they end m the htl- 
t t he Cape of Good Hope. H^hW him is spread 
the beautiful panorama of the peninsula itself, 
\\ nli its mountains and pleasant streams, its vine- 
yards and forests, its splendid Dutch farmhouses 
great avenues of oaks and firs, built and 
planted by the Dutch governors of old. Over all 
towers Table Mountain. For beauty and amenity 
of life the Cape peninsula is without a rival in 
South A 

Pretoria, the other chief claimant for the 
honour, has neither Cape Town's history nor its 
beauty. It is a pretty town nestling in the bosom 
of Magaliesberg, well wooded and well watered. 
But its streets are mean, and it is yet hardly more 
than an overgrown dorp. The inhabitants of Cape 
Town are thought by the population of the inland 
to be out of sympathy with the veld, but it is no 
less true that the people of Pretoria are apt to be 
parochial and selfish in their views. They find it 
ditlicult to look beyond the hills which surround 
them. In this respect they suffer by contrast 
with the population of Johannesburg. But Pre- 
toria has this great advantage, that it is central in 
position, while Cape Town is at the extreme end 
he continent. It is what Cape Town is not, 
a part of the true South Africa. The Cape 


peninsula is a land of vineyards and streams, not 
of karroo, and kopje, and veld. Its climate even 
is quite different. South Africa is a land of summer 
rains and winter drought, but at Cape Town it is 
the winter that is the rainy season. Pretoria, too, 
is in close proximity to the great industrial centre 
of the country, and likely to be some day the seat 
of industry itself, for it is surrounded by vast 
deposits of coal and iron ore. But, while its near- 
ness to the Rand is truly an advantage, the 
domination of Johannesburg is so much of a bogie 
to the rest of South Africa that this very fact was 
the chief obstacle to its success. 

Johannesburg itself, though it possessed many 
advantages, was out of the running. There is 
a general fear throughout South Africa of the 
influence of the mining industry. This sentiment 
is largely the outcome of ignorance and prejudice, 
but whether ill or well-founded it was strong 
enough to make any idea of Johannesburg as the 
capital out of the question. 

The only other possible rival among existing 
towns was Bloemfontein. It is central in position, 
but has nothing else to commend it. It is the 
most unattractive of South African capitals. If 
there was a danger of its being chosen, it was solely 
due to the difficulty of reconciling the conflicting 
claims of Cape Town and Pretoria. 

The Convention might have determined to ignore 
all existing capitals and choose a new site on the 
Vaal River, or in some other favourable position. 


But even bad such a ooune bean acceptable to 
the public, the expense of creating a new capital 
and the difficulties of con<lu< tmg the government 
in the meantime were strong arguments again*' u. 
The ditlii -ulties in the way of a settlement were 
therefore great it her Cape Town or Pretoria 

gained the prize at the expense of the <>ther f or if 
neither gained it at all. it was equally likely that 
ii i not i would be wrecked. When it became known 

that a deadlock had hern readied, thr nru>- 
papers advocated the Australian plan of leaving 
the matter to the decision of the future Parlia- 
ment. But to this course many delegates had 
rightly the strongest objection. It possessed 
every disadvantage, and Australia was a warning 
of the probable consequences. Compromise was 
necessary, and in the art of compromise Afrikanders 
are past-masters. The spoil was divided. Pre- 
toria cried out that it was betrayed, but its 
lamentations were unheeded, since most reasonable 
men thought it had got as much as it deserved. 

This curious arrangement by which the execu- 
tive government has its seat in Pretoria, while 
Parliament sits a thousand miles away at Cape 
Town, has its advantages and disadvantages. It 
must add to the expense of conducting the govern- 
ment, and it must tend to make efficiency more 
ditlicult. At t he same time, in so large and varied 
a country as South Africa, there is something to 
be said in favour of bringing the government and 
the members of Parliament into contact with two 


great centres, Pretoria and Cape Town, the one 
typifying the continental nature of the Union, the 
other its ultimate dependence on sea-power, a fact 
which it is all-important to bring home to South 
African legislators. And, while it is essential that 
the government should be in touch with the great 
inland districts, it may be fortunate that Parlia- 
ment will meet in a city where political traditions 
are more settled and perhaps sounder than in the 
youthful north. Lord Curzon has pointed to the 
example of Simla and Calcutta as a proof that the 
compromise is quite workable. While one may be 
inclined to doubt the aptness of a parallel drawn 
from such widely differing conditions, there need 
be no insuperable difficulty in carrying on the 
government efficiently. It is merely a question of 
organization. The compromise may last for years, 
and in any case it is useless to attempt to probe the 
future. All that may be said with safety is that, 
whatever direction South Africa's development 
may take, Cape Town will never be its centre of 



THE Legislature is to consist as usual of two 
Houses a Senate and a House of Assembly. 
But although to this extent the Act follows prece- 
dent not, we have been told by some delegates, 
\Mthout opposition it has several novel features. 
In the first place the constitution of the two 
Houses of Parliament is for the first few yean 
of their existence even more federal in character 
than that of the corresponding Houses in federally 
governed countries. In the latter it is the rule that 
\vhile the Upper House represents the principle 
of state rights, the Lower is elected by the whole 
population without respect to state boundaries. 
In South Africa both Houses of Parliament will for 
the first period of their existence be constituted 
on what may be termed a provincial basis. I* 
was found necessary to make large concessions 
to provincial feeling in order to secure the accept- 
ance of a constitution unitary in its nature al- 
though apparently federal in some of its aspects. 

The constitution of the Senate is somewhat 
complex. It is to consist of eight members 
linated by the Governor-General-in-Council, 
four of whom must be well versed in native 
affairs, and, in addition to these, of eight elected 
for each province. Thus, except in the case 
i'i tiu nominated members, the principle of equal 


representation among the provinces, common to 
strictly federal constitutions, is followed. This 
principle is secured for ten years ; thereafter it 
is retained only until Parliament decides to make 
other arrangements. The nominated members 
will, it is hoped, add to the strength of the Senate, 
by including men prominent in the life of the 
nation who would otherwise be lost to politics. 
The elected members of the first Senate are chosen 
in a novel manner. The two Houses of the 
present colonial Legislatures, which will disappear 
with union, are before that date to meet together 
and elect the eight senators for their province. 
These senators hold their seats for ten years, and 
vacancies among them are filled by election by the 
Provincial Councils. If at the end of ten years 
no other provision has been made by Parliament, 
the elected senators will be chosen jointly by the 
members of the Provincial Council and the mem- 
bers of the House of Assembly representing the 
province concerned, and any vacancy will be filled 
in a similar manner. It will be seen, therefore, 
that there are actually four methods of choosing 
senators nomination by the Governor-General- 
in-Council, election by the present Houses of 
Parliament, election by the Provincial Councils, 
and election jointly by the Provincial Councils and 
certain members of the House of Assembly. All 
this complexity does not appear to be very 
satisfactory. The election of senators is to be 
by means of proportional representation, and it 


is probable, therefore, that the complexion of the 
existing Parliaments will be reflected in the first 
Senate. I n other words, the existing majorities will 
perpetuate themselves in it for a period of ten years, 
sinoe during that period the Senate cannot be dis- 
solved. Thus the method of constituting the first 
Senate appears to be favourable to the parties now in 
power and correspondingly unfair to the minorities. 

The delegates who were sent to England from 
the different colonies were entrusted with the 
task of framing regulations for the election of 
senators by proportional representation. The rules 
\\lm-h they drew up have now been published in 
South Africa. They are an adaptation of the 
system of the single transferable vote, which is 
advocated by the English Proportional Repre- 
sentation Society. The delegates had before them 
the Act in force in Tasmania, and also the .Muni- 
1 Representation Bill introduced by Lord 
Courtney into the House of Lords in 1907 and 
passed. The regulations for the election of senators 
are to a large extent founded on the rules contained 
in those Acts, but it was found necessary to modify 
them in some important respects. It is not so simple 
to apply the system of the single transferable vote 
to quite a small election, where the electors number 
leas than one hundred, as it is to a large election. 
The modifications are therefore in the direction of 
securing absolute accuracy in the result. 

Critics of proportional representation will no 
doubt complain of the complication of the rules. 


For the voter, however, the system is simplicity 
itself. The Returning Officer must, it is true, 
make himself acquainted with the rules for count- 
ing and transferring the votes, but if he is a man 
of ordinary intelligence he should have no diffi- 
culty. It is fair also to remind critics that it is 
only by means of proportional representation that 
the Senate has been able to be constituted as it is. 
There is no other known way by which senators 
can be elected, and yet each party be represented 
according to its strength. The abandonment of 
proportional representation would, in fact, have 
meant that the whole constitution of the Senate 
must be entirely recast. 

Nothing seems more difficult in constitution- 
making than the composition of an Upper House. 
The Convention might have followed Canada and 
adopted nomination pure and simple, or Australia 
and caused the Senate to be elected directly by 
the people. There were arguments against both 
courses. Nomination has been shown in Canada 
to possess many objectionable features. It gives 
too much power to the Government of the day, 
and the patronage which it places in its hands 
may be used in a form in which it is hardly to 
be distinguished from bribery. Sir Wilfrid Laurier 
has himself dwelt on the evils of nomination and 
advocates rather the plan adopted in the United 
States of election by the State legislatures. 

The objection to direct election by the people was 
that the Senate might then become a dangerous 


rival to the Lower Home. If Senators 

elected in the saim- di.strirts and l,\ th- 
electors, might they not claim to be as 

' of the people aa members of the Lower 
House ? The Australian constitution attempt* to 
impart a different complexion to the Upper House 
by making each state a single electoral area for the 
election of Senators. Hut as Senators an- Irrtrd 
by ' general ticket ', a system which gives each 
voter as many vote* as there are seats to be filled, 
the result is that the party in the majority in any 
state can sweep the board. In most states tin- 
Labour party has been in the past better organized 
than its 1 1\ iU, and the Senate in consequence has 
been said to be more like a National Labour 
Convention than an Upper House. The Chamber, 
\\hirh is usually supposed to act as a drag on 
revolutionary legislation has largely occupied itself 
in passing academic resolutions in favour of the 
lization of all means employed in the pro- 
duction and distribution of wealth and other 
projects of a socialistic character. 

The South African constitution entirely eschews 
lection for the Senate. It is rather a com- 
pound of the principles of the Canadian and 
American constitutions. Its provisions in this 
respect might have been simpler without losing 
any of their virtues, but it is quite possible that 
in practice they may be satisfactory. 

1 t has been shown that equality of representation 
in the Senate among the provinces is safeguarded 



in the Constitution only for ten years. Those who 
insisted on this limitation doubtless hoped that 
provincial feeling would have so far given way to 
national feeling that it might be possible at the 
end of that time to make a nearer approach to 
the unitary principle. But prophecy on such 
a matter is dangerous. Threatened institutions 
live long, and the Senate has first to be got to 
agree to its own reconstruction. 

In the composition of the House of Assembly 
the same principle of provincial representation is 
observed. The members are not distributed on 
a uniform basis throughout the Union, but a certain 
arbitrary number is allotted to each province. 
The ultimate basis on which the allocation rests 
is the number of the European male adults in 
each province. But the Cape and Transvaal have 
both taken a smaller representation than they are 
strictly entitled to, in order to allow a larger 
representation to the two smaller provinces of 
Natal and the Orange Free State. No province 
can have its representation reduced until the 
number of members of the House reaches 150 or 
until the expiration of ten years after the estab- 
lishment of union, whichever is the longer. In 
this way the separate identity of the provinces is 
recognized, the vote of a Natal citizen, for instance, 
simply by virtue of his residence in Natal, being 
of much more value than the vote of a citizen of 
the Cape Colony or the Transvaal. Complicated 
and ingenious provisions determine the increased 


representation to be allotted to any province in 

the caae of an increase in its white population. 

The process goes on until the number of member* 

ie House reaches 150. The number of members 

is then to remain at 150, and they are to be distri- 

1 without reference to provincial boundaries, 

so that throughout the Union the proportion 

j>eaii male adults to each member may be 

as far as possible the same in each province. 

Thus it is contemplated, a* in the case of th- 

Senate, that after a short and limited period of time 

the constitution of the Assembly will be framed 

on a national instead of a provincial basis. 

Although an arbitrary number is adopted for 
the representation of each province as such, the 
(listril)ution within the provinces of members so 
allotted follows a definite principle. Members 
will be distributed m electoral divisions based on 
the number of registered voters in each, and each 
1>< r will, so far as possible, represent an equal 
number of votes. Each electoral division is to 
return one member. Constituencies are to be 
delimited by a commission of judges and the com- 
mission may depart from th strict quota to the 
extent of 15 per cent., either above or below, if they 
think it necessary owing to the sparsity or density 
of the population, or for other reasons, An auto- 
matic redivision of the constituencies by a com- 
mission of three judges is to take place after every 
quinquennial census. 

By these provisions the question of 'equal 


rights ' is once and for all settled in the Constitution 
in a manner satisfactory to the British population. 
But, as the world knows, it was on this rock that 
the ship of union was almost wrecked. In the 
Cape Colony the country population have always 
had a decided advantage over the towns, two 
voters in the country being equal in voting value to 
three in the towns. The Progressive party in the 
Cape have always talked of drastic redistribution, 
but every one knew that a reform so sweeping 
as that now embodied in the Constitution had no 
chance whatever of passing the Cape Parliament 
as a local measure. Not only were the Bond 
strenuously opposed to any change which would 
weaken their party, but the Progressive farmers 
also looked askance at increasing the political 
power of the towns. Thus the knowledge that the 
Cape delegates had been induced not only to 
agree to equality of representation between town 
and country, but to adopt a system of proportional 
representation which might have the effect of 
diminishing the overwhelming power of the Bond 
in the country districts, came as a shock to the 
politicians of that party. To the rank and file 
of the Bond, who were no doubt prepared to look 
at the matter in a broader light than the party 
wire-pullers, the change was also distasteful for 
the reason that proportional representation meant, 
especially in the Cape Colony, very large electoral 
areas. The farmers on both sides were naturally 
(1 of increasing the cost of elections and the 


ditli. ultien of canvassing. An organized ittaok 
was accordingly made on these two point*. Lurid 

ures were placed before the Bond members 
Parliament of the disastrous effect of these 
provisions on the party's fortunes, with the result 
that when the Capo Parliament met to consider the 
nstitution the I'M me Minister and the other 
delegates on the Government side were compelled 
to throw over the compact arrived at by the 
Convention and to vote for amendments involving 
its entire abandonment. Thus a most critical 
>it nation was created It was impossible that the 
Transvaal Progressives should give way upon 
tin- prim iple of "equal rights'. They had with 
the utmost reluctance consented at Cape Town 
to include denseness or spaneness of population 
among the reasons of which the Commissioners 
might take account in differentiating between 
area and area. This provision already meant that 
a thinly populated country area might number 
30 per cent, less voters than an urban area. 
Beyond this concession they could not go. The 
fate of union rested in the hands of General Botha 

his colleagues, since the Cape delegates could 
not hope to carry their amendments through 
against the Transvaal Government. That Govern- 
ment remained linn to their honourable compact 
with the Progressives, and a compromise was 
finally reached by which the retention of the 
4 equal rights ' clauses as they stood was balanced 
against the abandonment of proportional ropre- 


sentation for the election of the House of Assembly 
and the Provincial Councils. The question, there- 
fore, of equal voting power for all sections of the 
community, which led to the war, which has been 
for years a subject of party strife in the Cape, and 
which after the war formed the main bone of 
contention between the opposing parties in the 
Transvaal, is now settled, let us hope, for ever. 

Those who had advocated proportional repre- 
sentation had seen in it a valuable means of 
softening racial antagonisms. It is unfortunate 
that the British minority scattered throughout 
the country districts, and to a less extent the Dutch 
minority in the towns, will now be deprived of all 
hope of proper representation. As before, and 
particularly in the Transvaal and Orange Free 
State, the towns will return British members and 
the country Dutch. The line between town and 
country is in itself too strongly marked ; it is 
intensified by race prejudice. Proportional repre- 
sentation might gradually have broken down these 
barriers with the most fortunate results to the 
country. To those who held this view the com- 
promise was most distasteful. It was accepted 
only as the price of union. The Transvaal Govern- 
ment have since vindicated their faith in pro- 
portional representation by applying it to the 
election of the town councillors of Johannesburg 
and Pretoria. These elections take place almost 
immediately, and the results of the experiment 
will be watched with interest. 

vi i m: LHBL.V] 

In South Africa* aa in Canada, one important 
question haa been left to the future. No attempt 
has been made to establish a uniform franchise 
throughout the Union. It m a task of the most 
serious cliiMViilt \. and as the Convention's object 
was to build the framework of a national govern* 
ment, not to settle all the problems of the country, 
it was wise in deciding to let alone a matter any 
settlement of which would have wrecked the whole 
scheme. It was impossible to extend the coloured 

ohise of the Cape Colony to the rest of the 
Union. It was equally impossible to extend the 
manhood -mirage of the Transvaal to the Cape 
Colony. It was impossible to deprive the Cape 
coloured voters of the rights which they now 
possess. It was therefore decided to maintain 
the present laws, to safeguard by special means t h<> 
native franchise where it now exists, and to leave 
the whole question to be dealt with by the Union 
Parliament. The violent criticism with which even 
this compromise has been received, on the one side 

he coloured voters and by their friends in the 
Cape Colony, and on the other by the extreme op- 
ponents in the northern colonies of the grant of any 
franchise rights to coloured persons, is sufficient 
\ i.lence that South Africa is not yet ripe for a 
settlement of this difficult question, and that any 
attempt to settle it would have led to disaster, 
It has already been shown that the South 

an Constitution avoids one difficulty which 
may yet cause trouble in Australia. There will 


be no doubt which is the predominant House 
of Parliament. The ordinary British system of 
Cabinet Government, which the Constitution pre- 
supposes, requires for its proper working that the 
Government should be fully responsible to one 
House only. An adverse vote in the Senate 
should no more than an adverse vote in the 
House of Lords involve the Government's resigna- 
tion. The secondary election of the senators will 
prevent them from laying claim to represent the 
people with the same directness as the Assembly. 
If any deadlock arises between the two Houses 
the solution is provided by a deadlock clause 
generally similar to the Australian clause. If 
there is any conflict the Governor can order 
a joint sitting in the next session after that in 
which the trouble arose, and the majority in such 
a sitting determines the result. There is, however, 
an innovation to the effect that in the case of a 
money bill the senate may, to use a local expression, 
be * steam-rollered ' in the same session in which the 
quarrel arises and not in the ensuing session as in 
Australia. Thus the Assembly's predominance 
over the Senate will be undoubted. The Senate will 
be reduced to the position of a house of review, 
and a place where ministers may make graceful 
concessions which they have refused elsewhere. 

< II LPTBfi \ M 


THE details of th< 1 

been received by the publi. m South Africa with 
indifference ratlin than with commendation or 
criticism, liidrrd, this part of the Act has been 
treated as so much of an experiment that it in 
generally assumed that in the near future mu.-h 
of it will require to be altered, and that therefore 
it is hardly worth while wasting time and trouble 
in any detailed consideration of it. But this is 
a short-sighted view. Institutions when once 
they have been brought into being have a knack 
of refusing to disappear. Problems will un- 
doubtedly arise some of them will be referred 
to later but there is no valid reason for supposing 
that the difficulties in the scheme formulated by 
the ( 'oiivrntion are so grave as to make it un- 
\\ i kable. Indeed, a great deal of care and trouble 
appears to have been spent in devising these 
constitutions; and an examination of them is 
well worth the while of the political student. 

Each Provincial Constitution has three main 
organs. There is an administrator appointed and 
paid by the Union Government, a Provincial 
Council elected by the same electors as the House of 
Assembly and consisting of the same number of 
members as represent the province in the .WemhU 


(no Provincial Council, however, having less than 
twenty-five members) and an executive committee 
consisting of the administrator and four members 
elected by the Provincial Council. The members 
of the Executive Committee need not necessarily 
be members of the Provincial Council. The ad- 
ministrator is appointed for five years. Both the 
Provincial Council and the executive committee 
sit for three years, the executive committee 
remaining in office until a fresh committee is 
elected by the new Provincial Council. The 
Provincial Council cannot be dissolved nor is there 
any authority which can dismiss the executive 
committee. The executive committee is to be 
elected by proportional voting and is therefore 
certain to contain in almost every instance 
representatives of the chief opposing parties. 

It is worth while to consider a little more closely 
the functions of these three organs of government. 
The administrator's functions are various. In the 
first place there are what may be called his orna- 
mental functions. He is stated to be the chief 
executive officer of the province. He will no 
doubt represent the province on all ceremonial 
occasions. He has in addition certain functions 
similar to those of a governor of a self-governing 
colony. He determines when Parliament shall 
meet ; no money can be issued without his warrant 
and no appropriation ordinance introduced unless 
recommended by him. In other respects he is 
simply a member of the executive committee. 


He is its chairman but with the exception of 
possessing a casting vote in addition to his ordinary 
vote, he haa no more power than any other 
member of the executive committee. In ordinary 
timee, therefore, it ia probable that hia power 
uill depend on his ability and hia peraonal influ- 
ence. It he ia a man of force and character, and 
if the other members of the executive committee 
are divided in their opinions, he may hold the 
balance of power and by this means exercise great 
influence. If, on the other hand, he ia distasteful 

to the jx'ople of the province, it apjM-ars likely 

the other members of the committee will be able 
to reduce him to the position of a constitutional 
governor. It is conceivable that a development 
might take place somewhat similar to that which 
led to the rise of cabinet government in England. 
The elected members of the executive committee 
might meet together and decide all questions of 
policy informally, meeting again later in formal 
ni t tee for the purpose of obtaining the 
assent of the chairman. There is nothing, indeed, 
to make even the presence of the administrator 
necessary for the exercise by the committee of it- 
powers. It must be remembered also that the 
administrator will start with an initial handicap. 
He will be a nominated official, and those who have 
any experience of Crown Colony government in 
a country like South Africa will recognize what 
that means. 

In certain contingencies, on the other hand, the 


administrator is clothed with exceptional powers. 
In the interim before union is fully established 
and before the Provincial Councils have been 
brought into being, the administrator has full 
power to administer the affairs of the province 
alone. This period of dictatorship will, however, 
be short. But there is another occasion on which 
he assumes almost autocratic powers. Whenever 
for any reason the executive committee has not 
a quorum the administrator has power to carry 
on the administration of provincial affairs until 
a quorum is re-established. He need not, appar- 
ently, even consult any members of his executive 
committee who are still left. 

Another point worth noting is that the adminis- 
trator will serve in a two-fold capacity. He is 
first a servant of the Provincial Council, but he 
is also a servant of the Union Government ; and 
it is expressly provided that if the Union Govern- 
ment acting within its powers conveys instruc- 
tions to the administrator he may carry out 
those instructions without reference to the other 
members of the executive committee. But there 
is no hint in the Act what powers the administrator 
is likely to be called upon to perform for the Union 
Government. They must obviously be left to 
be determined as experience dictates since they 
involve the whole question of the organization of 
government. The importance or otherwise of the 
position of the administrator will largely depend 
on the nature of the settlement arrived at. The 


probable relation* of the administrator to the 
Union Government form, indeed, an interesting 
peculation His term of office, for instance, need 
and generally will not, coincide with the 
possession of power by the party which appointed 
him. Having been appointed by one party he 
may be called upon to serve another. It i* juit- 
possible that when party feeling is high he may 
tiiui his position extremely difficult. 

The administrator could have been omitted from 
the scheme of the Provincial Constitutions without 
altering th ial character and possibly 

with advantage to it. There is no counterpart 
to him in any British Constitution. He bears 
an analogy to the ' superintendent ' who existed 
in New Zealand in the fifties. He is cer- 
tainly opposed to the spirit of British institutions 
and it is possible that he may share the fate of 
the superintendents and disappear after a brief 

The executive committee consists of the adminis- 
trator and four members elected by the Provincial 
Council. In the first published draft the elected 
members might vary in number between three and 
five. It was feared by Natal that in a committee 
of three an administrator with both 'an ordinary 
and a casting vote might exercise a dominating 
influence, and to meet this criticism the number 
was made four in every case ; a number which 
is either too large for Natal and the Free State 
T too small for Cape Colony and the Transvaal 


The committee will contain representatives of 
than one party. Party government, therefore, in 
the ordinary sense will be impossible. The Pro- 
vincial Constitutions, indeed, presuppose a form 
of government entirely different from that to 
which Englishmen are used either in national or 
local politics. They seem to be based rather on the 
model of the Swiss Constitution to which many of 
their features are strikingly similar. Their creators 
no doubt hope that the results will be equally 
successful. The outstanding feature of the Swiss 
form of government is that, although political 
parties exist, party government does not. As 
Professor Dicey observes, the Federal Council, i. e. 
the governing body, is in reality not a cabinet but 
a board for the management of business analogous 
to a company's board of directors. Representa- 
tives of various parties sit upon it, and as Professor 
Lowell has pointed out, its members hold very 
divergent views. Nevertheless, the Council con- 
ducts its business with admirable efficiency and 
harmony, and possesses ' a stability, a freedom 
from sudden changes of policy, and a permanence 
of tenure on the part of capable administrators, 
which can never be attained under the parlia- 
mentary system '. A form of government may 
work well in Switzerland and still be entirely 
unsuited to a British community, but an experi- 
ment so successful in one country is at least worth 
a trial. These Provincial Constitutions have, more- 
over, been advocated on the ground that they 


are not unlike the pre-war constitutions of the 
an Republic and Orange Free State, 
and tint these latter were found to be well suited 
to Dutch ideas of government. But this analogy 
cannot be pressed too far. These republican 
constitutions were only suited to a romparatm-ly 
Mm pie community. In theory they made the 
legislature supreme ; in practice their efficacy 
depended on the ability and jMTsomility of th<- 
president. President Krupr was an autorrat and 
his reign would no doubt have been as successful 
as President Brand's in the Free State had not 
the Witwatersrand brought with it problems 
which the old form of government could not solve. 
The president was powerful because he was the 
chosen of the people; the administrator on the 
other hand will be nominated, and even if one 
ad mi to that the republican constitutions 
well suited to a homogeneous society, it 
imagination to predict what might have happened 
had two Uitlanders sat at President Kruger 9 s 
Executive Council Board. 

Those on the other hand who dislike so great 
a departure from British traditions maintain that 
the experiment must fail. They point out that 
no provision is made for avoiding deadlocks 
between the committee and the Council, since the 
inittee cannot be dismissed and the Council 
cannot be dissolved. In practice, however, no 
great difficulties need be anticipated on this score. 
The committee cannot legally disobey the ordin- 


,ii ires of the Council and the Council in the long 
run will be able to force the resignation of the 
committee by cutting off its supplies. The latter 
is indeed likely as in Switzerland to limit its 
functions to carrying out the policy of the Council. 
A more serious criticism is that to attempt to 
force opposing parties to work together in the 
same Government, will be to try to mix oil and 
water. But before the Provincial Constitutions 
are condemned on this score the powers which 
they will be called upon to exercise should be 
examined. With the exception of education 
there are none of a character into which party 
politics need enter. Nor, indeed, are the inde- 
pendent powers of the provinces likely to be 
extended. One may venture to prophesy that in 
all likelihood they will be diminished. What is 
wanted in South Africa at its present stage of 
development is legislative centralization and 
administrative decentralization. Economy in 
administration is essential. Unfortunately even 
with the limited provincial powers the existence 
of two co-ordinate authorities will make it difficult 
to secure. Examples of probable difficulties are 
easy to find. The South African system of 
government is not unlike that of India. The 
country is divided into magistracies and at the 
head of each district is a magistrate who is the 
general representative of the Government. His 
duties will in future be undertaken partly for 
the Provincial and partly for the Union Govern- 


" there to be two parallel systems of 
local government m the future or can the 
two masters, both Union and 
Provincial Government* ? Again, some public 
works such as roads and bridges and schools will 
be under the ad ation of the provinces; 

the remainder will belong to tin* I'liion. An- 
there to be two Public Works Departments where 
one is now sufficient ? The following is again 
.mother kind of difficulty which will probably 
arise. Public health, which must be administered 
by local bodies, is a matter for the Union. Munici- 
palities and local bodies are under the Provincial 
Government. The municipalities will thus also 
serve two masters. They will be responsible for 
public health to the Union Government ; for 
everything else to the Provincial Government. 
The truth seems to be that a half-way house 
between the thorough - going federal and the 
purely unitary form of government is not easy to 
find. No doubt the curious mixture of the South 
Africa Act was accepted as being the nearest 
approach to unification which it was possible to 
attain. It may, therefore, be that the Union 
Government will have either to absorb the 
independent power of the provinces, devolving, 
however, administrative powers upon them to 
whatever extent is necessary after the fashion of 
English local government, or sink bark into the 
position of a federal authority. As the South 
an Constitution-makers have put all the 


cards in the hands of the Union Government 
the former alternative is the more likely. 

The provincial constitutions are therefore ad- 
mittedly experimental, and at this stage it is 
impossible to predict their success or failure. The 
result will largely depend upon the spirit in which 
they are worked. Sound local government will be 
hampered by the great size of some of the areas, 
particularly Cape Colony, which is undoubtedly 
too large for the purpose, and for this reason it 
is somewhat unfortunate that a province may not 
be divided into two or more provinces without 
a petition from its provincial council. That body 
is Likely to be the last to see the necessity for such 
a step. 

Those who criticize the ready-made character 
of these constitutions should be prepared with an 
alternative. The only possible one would appear 
to have been the creation of small responsible 
governments throughout South Africa, engaged 
mainly in the administration of purely local 
affairs, with all the paraphernalia of lieutenant- 
governors, cabinets, dissolutions, and party govern- 
ment. It is probable that the Convention was 
right in rejecting such a plan. 

Finally, it may be noted that the control of the 
Union Government over the provinces is not 
limited merely to the legislative supremacy of 
Parliament. For in addition all provincial ordin- 
ances must receive the assent of the Governor- 
General-in-Council, and still more important, the 


financial control of the I'nion ( iovcrnmcnt nvi-r 
the provinces, as explained in Chapter I \ 

It i- oom to refer here to the provision 

that new territories and province* may be m- 
. -hided in the Union on such terms as the South 
African Parliammt may determine. Apart from 
the native protectorates, which are dealt with 
specially in Chapter X, there remains only Rho- 
desia, though it is conceivable that British Cei 
Africa may some day be taken over, and, in the 
far distant future, even British East Africa and 
Uganda. Rhodesia must undoubtedly be included 
in tin* t'nion, hut it is an open question whether any 
steps to that end should be taken in the immediate 
tut ure. The people of Rhodesia are said generally 
to be averse from the prospect. The new South 
African Government will be overwhelmed with 
uork. and are likely to neglect the interests 
of a part of the Union so distant, at the 
Mimnrnt so comparatively unimportant and pos- 
sessed of so little voting power. The administra- 
tion .t thr rhartrred Company has been good. 
A country so immature, and yet of such great 
possibilities, demands close attention from its 
responsihle rulers. The steps which are taken 
m the next few years towards developing it- 
resources and settling an energetic and progressive 
population on the land will go far to determine 
its future. Both in the interests of the Rhodesian 
population and of the South African Government. 


it is therefore desirable to delay the inclusion of 
Rhodesia in the Union. That Government should 
first settle the more immediate problems which 
face it elsewhere. When that has been done, 
and when Rhodesia itself is more ripe for the 
change, it will be time for the Imperial Govern- 
ment to consider on what lines and under what 
safeguards the transfer of the administration 
should be made. 


TH iMons of the Act with regard to the 

judiciary require little conn unit. A Supreme 
Court of South Africa is constituted, and when 
the spoils were divided, the Supreme Court was 

n to Bloemfontein. Its sittings must be held 
there, though for the convenience of suitors it 
may go elsewhere. Bloemfontein is not a very 

ictive place and since judges are only human 
they may tind that the convenience of suitors of ten 
requires their presence at Cape Town and other 
more pleasant places of abode. The Supreme 
Court is to sit in an appellate division and in 
provincial and local divisions ; the existing 
supreme courts of the colonies become the pro- 

ial divisions, and the existing district and 

lit courts become the local divisions. Appeals 
from any superior court will go direct to the 
appellate division. Appeals from the Supreme 
Court to the Privy Council are limited to oases 
in which the Privy Council may give leave to 
appeal. As in Australia, Parliament may limit 
the matters in which such leave may be asked, 
but laws imposing such restrictions are to be 
reserved for the pleasure of the Crown. The 
question which gave so much trouble in the 
Australian Constitution with regard to the inter- 


pretation of the Constitution does not arise in 
the case of South Africa. The interpretation of 
a federal constitution is a matter of immense 
importance. It may, and in fact probably will, 
determine the whole course of the political life 
of the country, but, where parliament is supreme, 
the courts cease to be the guardians of the con- 
stitution, and, since any judicial interpretation 
which may be considered detrimental to the 
country's interest may be upset by means of an 
ordinary law, there is no reason to enter any special 
safeguards in this respect. The main benefit to 
be expected from this chapter of the Act is the 
removal of the present anomaly by which four 
Supreme Courts sit in South Africa, none of 
them bound by the other's decisions and occa- 
sionally delivering inconsistent and even con- 
tradictory judgements. 


TUB chapter dealing with finance and railways 
is not only one of the most important of the whole 
but is also perhaps the most logical and com- 
plete. It is hen- that the unitary prim-iplr limU 
its most complete fulfilment. There is no attempt 
rigidly to define once and for all in a written docu- 
mmt the financial relations between the central 
and local governments, A cut and dried financial 
scheme, which is a necessary consequence of the 
adoption of the federal system, has been found in 
all federal countries to be a most serious drawback* 
Whether in America, or Canada, or Australia, the 
financial relations between the central and local 
governments are unsatisfactory. There is no sphere 
of government where elasticity and freedom are 
more necessary than in that of finance, and the 
difficulty of making those readjustments which 
t In- 1 hanging circumstances of a country's develop- 
ment require may often be found to be a serious 
handicap to its prosperity. The South African 
Constitution meets this difficulty simply and 
effectively by leaving the whole matter to be deter 
mined by the Union Parliament in the manner 
which the future may show to be the best It 
does not set up a ready-made system ; it merely 
indicates the procedure to be followed temporarily 


until Parliament has had time and opportunity to 
deal fully with the whole matter. All revenues 
(apart from revenues arising from the administra- 
tion of railways and harbours, which are dealt with 
separately) are paid into the Treasury of the Union. 
All properties and rights belonging to the govern- 
ments of the colonies which enter the Union, 
including even property incidental to the duties 
cast upon the Provincial Governments, are taken 
over by the Union Government, and all their debts 
and liabilities assumed by it. The Provincial 
Governments will, for the time being, depend on 
grants from the Treasury of the Union, except in so 
far as they may exercise their power of imposing 
direct taxation, which they will be in no hurry to 
do, if we may judge from the example of Canada. 
As soon as the Union is established a commission 
is to be appointed, consisting of one representative 
from each province, and presided over by an 
officer from the imperial service, to report upon the 
financial relations which should exist between 
the Union and the provinces. Until this com- 
mission has reported and Parliament has acted 
upon its report, the Provincial Governments will 
be entirely dependent upon the Union Treasury. 
For the expenditure of any grants they will be 
completely responsible to the Union Government ; 
their estimates must be approved by that Govern- 
ment ; and their expenditure will be audited by its 

All government centres in finance. There is 


no doubt that the Convention, whether deliber- 
ately or nut. has by means of the financial pro- 
as of the Constitution sealed the a 
he Union Government over the provinces, 

They aiv held in a \ in- and tin- I.TIIIIT ha* -imply 

to tutu t !,r screw in order to secure its ends. 

The elaborate provisions with regard to the 
administration of the railways and harbours of 
the Union, which are without parallel in any other 
(Constitution, are a good indication of the 
immense importance of the administrative side of 
a modern state. They point equally to the dangers 
which experience has shown to arise when a 
government becomes responsible for the adminis- 
um of commercial undertakings. The peculiar 
evils to which the state administration of railways 
is subject are fairly well known both in Australia 
and South Africa. They are probably less appre- 
ciated in England. In Australia political inter- 
ference and jobbery became so rampant that in the 
attempt to stem them drastic changes in railway 
management were found necessary. The railways 
were placed under the control of independent 
rnmmissioners, relieved as far as possible from 
the pressure of political interference. This system 
of management is no doubt not perfect, but it has 
spread throughout the Australian i-olonir>. and 
once tried has not been abandoned. Responsible 
Australian statesmen who have had experience 
both of the former system and of the system of 
management by commissioners have no 


in expressing their decided preference for the latter. 
In South Africa the evils of political interference 
have not been so glaring, but they have not been 
absent, and under the ordinary system of minis- 
terial control they are likely to increase in the 
future. A single idea the prevention of political 
jobbery and the administration of the railways 
and harbours, so far as is possible for a govern- 
ment undertaking, on commercial principles runs 
through all the railway provisions of the constitu- 
tion. It is an attempt, much in the same way as 
the provision in the schedule that the native protec- 
torates shall be administered by a commission, to 
save democracy from itself. In the first place the 
railways are to be managed, subject to the authority 
of the Governor-General-in-Council, by a board 
consisting of not more than three commissioners 
to be appointed by the Union Government and by 
a minister who is to be chairman. The commis- 
sioners are protected by being appointed for a 
period of five years and by not being subject to 
removal before the expiration of that period 
except by the Governor-General-in-Council for 
cause assigned, which is to be communicated at 
once to both Houses of Parliament. Their salaries 
are not to be reduced during their term of office. 
The success or otherwise of this board will depend 
on the class of men appointed as commissioners. 
The management of a railway system of many 
thousands of miles is a vast undertaking requiring 
special knowledge and capacity for organization, 


and it the poets are to be the perquisite* of poli- 
ticians without any particular qualifications, 
the scheme will fail. All revenue from the 
ways and harbours is to go into a separate fund, 
i ml is to be used only for the purposes of tin 
railways, ports, and harbours. Their earnings 
are not to be more than sufficient to meet Un- 
necessary outlays which must be incurred in 
thru proper administration, and they are to 
be administered, as the Constitution quaintly 
says, * on business principles, due regard being 
had to agricultural and industrial development 
within the Union, and the promotion, by means of 
cheap transport, of the settlement of an agricultural 
and industrial population in the inland portions 
of all p es of the Union/ 

A curious commentary upon these provisions, 
in indication of the great importance of the 
railway question, is the reference in the Constitution 
to the division of the traffic to the Rand (Section 
148 (2)). In a previous chapter the difficult !> 
arising out of this question have been referred to. 
Some time before the Convention, the Transvaal 
Government had commenced negotiations with the 
Portuguese authorities for the conclusion of a new 
treaty to take the place of the temporary modus 
vivendi of 1901 ; but as the questions dealt with 
intimately affected the other colonies, nothing 
was settled until there had been an opportunity 
of consulting them during the Convention. It 
was an open question, whether it was to the 


interest of any colony that a new treaty should 
be concluded at all with the Portuguese, or whether 
a South African government, negotiating with the 
full force of a united South African opinion belli nd 
it, might not have been in a position to secure 
better terms. 

But apart from certain reasons which made the 
Transvaal Government anxious to conclude a 
treaty, that step was rendered inevitable by the 
insistence of the Natal Government on a fixed 
proportion of 30 per cent, of the Rand traffic for 
Durban. So long as the modus vivendi was in 
existence, no such guarantee could be given to 
Natal without a breach of faith with the Portuguese, 
and when an agreement between the colonies was 
concluded at Cape Town in February (the agree- 
ment referred to in Section 148), by which 30 per 
cent, of the traffic was secured to Durban and 
20 per cent, to the Cape ports, a new treaty 
was inevitable. Negotiations were accordingly 
completed by the Transvaal and Portuguese 
Governments, by which the Portuguese continued 
to grant facilities for the recruitment of native 
labour, and Delagoa Bay was secured for ten 
years in the possession of that portion of the 
railway traffic not divided between the Cape Colony 
and Natal. The publication of the treaty, how- 
ever, led to a storm of protests throughout South 
Africa, and particularly in Natal. At one moment 
it looked as if the Union itself was jeopardized. 
Natal opinion was intensely suspicious, and at 


the same time ill-informed. All aorta of danger* 
to NataTs prosperity were imagined, which had 
no foundation m fact But on reflection it was 
recognized that the evils of the treaty had been 
exaggerated, and that, however distasteful it was, it 

had heen rendered inevitahle hy Natal's drt-rmina- 

not to enter the Union without a guarantee of 

traffic. It was clear too that Durban would in any 

rase he hetter otT than it is now. None the le, 
although the best may have been made of an un- 
satisfactory business, the arrangement by \\hieh 
the whole traffic is divided in certain fixed pro- 
ions between the ports is obviously not con- 
ceived on * business principles ', and will be 
dilVieult to work. 

ihe Constitution provides elaborately that if 
the Board of Commissioners is compelled by 
IV i i-l iament to build unremunerative new lines, or 
to grant unremunerative concessions, the loss 
Ived is not to fall on the railways, but is to 
be met by grants to the railways by the Gov 
ment. These safeguards were prompted by some 
discreditable incidents in past railway hist 
particularly in the Cape Colony. Finally, the 
railway staff is to be under the sole control of the 
Board, and is not suhjeet to review hy the eommis- 
sion which is to report upon the remainder of the 
public service. 

It is manifest that the intention of all these 
clauses is to separate so far as possible the adminis- 
tration of the railways from the remaining func- 


tions of government. The inland colonies have, 
in the past, suffered from the imposition of high 
railway rates by the coast colonies, and the 
railways have always been used very largely as 
instruments of taxation. In the future all this 
will be impossible. The railways are to be worked 
at cost, and if it happens that any surplus remains 
that surplus cannot go to meet non-railway ex- 
penditure by the Government, but is secured to 
the railways for their own purposes. The policy 
here laid down is in marked contrast to that of 
other countries owning state railways, e.g. Prussia, 
which raises immense sums by means of railway 
rates for the ordinary purposes of government. 
But in a country of vast area, depending largely 
on imported articles, taxation through the railways 
is obviously unfair to the dweller in the inland, 
and the policy of the past has been most unpopular 
in the Transvaal. It was for this reason that 
General Smuts, much to the indignation of the 
coast towns, designated these clauses as the Magna 
Charta of the interior. 

< 1 1 AFTER \ 


THERE waa no part of the Constitution which 
the Imp.-rml Parliament waa bound to scrutim/r 
\\ith more care, or with which it waa more certain 
that it could not interfere, than that relating to 
natives. The parliamentary debates at West- 
minster were indeed practically confined to this 
aspect of the bill. Many speakers, anxious to 
vindicate the ancient claim of Parliament to act 
as the protector of the inferior races throughout 
the British possessions, resented the imputation 
that Parliament might disapprove, but could not 
amend. Hut they failed to appreciate that new 
i it ions had arisen. Old wine will not go into 
new bottles. To most speakers the true nature of 
thr problem before them was not clear. It may, 
therefore, be useful to anticipate reference to thr 
provisions of the Constitution itself by an attempt 
to elucidate the position of the Imperial Parlia- 
ment towards South Africa in this matter. 

in order to avoid confusion, it is well to explain 
in what sense the terms ' coloured men ' and 
4 natives ' are used in South Africa. A ' coloured 
man ' is not a Kaffir. He is a person of mixed 
white and black blood. 4 Coloured men ' var\ 
colour between all the shades which are not quite 
white or quite black. They are numerous only 


in the Cape Colony, and particularly in the en- 
virons of Cape Town. The majority of them are 
the product of a cross not between Europeans and 
Kaffirs, but between Europeans and the former 
slaves or Hottentots or Malays. In this chapter, 
therefore, it is necessary to distinguish between 
pure-blooded Kaffirs and persons of mixed blood. 
The term ' coloured men ' will be used for the 
latter. On the other hand, the terms ' natives ', 
' black men,' and ' coloured races,' will, for pur- 
poses of convenience, include ' coloured men ' as 
well as Kaffirs, unless it is otherwise stated. 

Mr. Balfour truly said that the relations between 
the races of European descent and the dark races 
of Africa present a problem of the most extra- 
ordinary difficulty and complexity, one entirely 
novel in history, and to which there is no parallel 
in the memory and experience of mankind. He 
might have added with equal truth that it is in 
South Africa that the problem reaches the zenith 
of its difficulty and complexity. For in the 
United States, formidable as the problem is, the 
position of the white man is at least secure. The 
white population vastly outnumbers the blacks. 
In the West Indies, on the other hand, the white 
population hardly claims or hopes to be more than 
a garrison. But in South Africa the white man, 
faced by tremendous odds, and outnumbered by 
five to one, has founded and is striving to maintain 
and strengthen a civilization and a polity which 
will do shame neither in its freedom nor its 


morality to the tradition* of hia race. The 
\\hiu- iurn in Smith Africa are no longer merely 
a garrison. One hundred yean ago there were 
but a few thousand of them ; to-day they number 
over a million. What they may attain to in 
future, and to what extent South Africa can ever 
become a white man's country, cannot be foreseen ; 

they have already reached the maturity of 
a nation, and they cannot be denied the constitu- 
tional freedom to which their status entitles them. 
Thus a situation has arisen the significance of 
which has not hitherto been fully grasped. The 

sh nation has been singularly successful in the 
past in its government of inferior races. In Asia 
and in Africa it may lay claim to a record to which 
no other nation can pretend. But its success has 
been invariably proportioned to the simplicity of 
the racial problem with which it has been faced. 
Where there has been no question of competition 
between white and black, it has attained unex- 
ampled success by capable administration and by 
the application of certain simple principles of 
liberality, justice, and humanity. It has been 
mui h less successful where white men and black 
are living side by side. Even when the white 
population has been comparatively small, as in the 
early days in the Cape Colony, and as is now the 
case in British East Africa, government from 
Downing Street has been accompanied by incessant 
trouble. Many of the calamities of South African 
history have sprung from this cause. As the 

o 2 


white population has increased, so has the diffi- 
culty of the task, until a stage is reached when 
the attempt is perforce abandoned, and the colony 
is granted self-government. But hitherto, in the 
case of South Africa, self-government has never 
been granted without a reservation in the minds 
of certain sections, at any rate, of the British 
public. They admitted that the white popula- 
tion of the colonies must be allowed to determine 
its own affairs ; they did not admit that the right 
extended to the government of the native popula- 
tions in their midst. They said in effect, ' You 
may govern yourselves, but the government of 
the inferior races is in the last resort our affair.' 
They did not see that their claim, though a plausible 
one, reduced self-government to a mockery, since 
there is no political question in South Africa which 
does not bear upon the native question, and beside 
it all other problems sink into insignificance. The 
British Parliament might as well be restricted 
from legislating for women. Thus the Liberal 
party, while granting self-government with one 
hand, was in danger of taking it away with the 
other. On two grounds only could they defend 
their position. They must argue that the colonies 
were either too weak to undertake the government 
of the inferior races, or, if they were not too weak, 
that they were unfit from some inferiority of 
moral character, or from an ignorance of the 
true principles of political freedom. The first 
argument has hitherto had much weight, but 

x i HI: NATIVES 101 

henceforth it will fall to the ground. A stigma 
.sin -h as IB implied by the second could be admitted 
only by a people too weak to resent it. 

But not only is the arrogation by the Imperial 
Parliament to itself of the right to determine native- 
policy inconsistent with the grant of full self* 
government; it is also imjMissible to put into 
practice. A free people can never consent to be 
governed by a parliament sitting 6,000 miles away, 
in which they are not represented. It is useless 
to toll them that the I in j. rial Parliament claims 
only to govern the black population, not the 
white. Every South African knows that from the 
conditions of the problem such a claim is meaning- 
lees. The man who wears the shoe alone knows 
where it pinches. The proper handling of the 
native problem is a matter of life and death to 
the inhabitants of South Africa. They cannot 
be expected willingly to entrust it to those who 
have no immediate responsibility, and who 
would not suffer in life or property from any 
mistakes they might make. It would be like 
asking the British nation to submit its naval 
policy to the determination of South Africa. Any 
attempt, indeed, to impose on South Africa a policy 
to whir h it is strongly opposed can only be carried 
through by coercion. 

Parliament was, therefore, on every ground 
well advised to show by its action that the grant 
of self-government had been made completely 
and u ithout reservation. The least calamity that 


must have followed from any other course would 
have been the postponement of union. The 
failure to reach the goal they so ardently desired 
would have been placed by South Africans at the 
door of the natives. Discord would have been 
sown between white and black, and South African 
( > j > i n ion might have become permanently embittered 
against the Government of Great Britain. 

All this has been said without reference to the 
question whether South African opinion is or is 
not more enlightened than British opinion. As 
Mr. Balfour said, the British Parliament must 
have a different perspective to that of South 
Africa, perhaps truer in some respects, certainly 
less true in others. One may freely admit that a 
great deal of South African opinion is ignorant, 
unintelligent, and crude. The man in the street 
and the man on the veld seldom realize even the 
elements of the stupendous problem with which 
they are faced. The policy which attracts them 
is often one of simple repression. Take away 
from the native the lands which he possesses, and 
there will be more compulsion upon him to work 
for the white man. Do not educate him, or 
else he will become too independent. Keep him 
in his place. That is the simple creed of the 
average white man. He fails to see that in his 
own interests it is fatal. For, if the black man 
sinks, he will inevitably drag the white man with 
him. The Kaffirs too now number six millions. 
They will soon number ten and twenty millions. 


By raising in their breast* a sense of wrong the 
\\hit.- in ui uill merely be digging hia own grave. 

Nevertheless, the germ* of a sound public opinion 
exiat. In Gape Colony a truer view of the object* 
and methods of native administration has prevailed, 
the influence of a few enlightened men has 
been a remarkable leaven on the ^eneral opinion 
"i" the colony. It is therefore probable that this 
pcooets will be continued with equal success on 
the wider stage of the Union. 

In this gradual development of opinion lies the 
best hope for the future. It was impossible with- 
out union, since no common native policy was 
possible. The varying policies of the different 
colonies merely reacted on one another, and 
lengthened their antagonism. Nowhere, indeed, 
are the benefits of union likely to be greater or 
more permanent than in the matter of the natives. 

But whatever may be our view as to the relative 
enlightenment of South African and British opinion, 
that is a matter, as will be clear from what has 
been said, \\hich has no practical bearing on the 
question of imperial interference. South Africans 
must find their own salvation. Any attempt to 
coerce them into the right way will merely con- 
firm them in their course. They must be left to 
reap wisdom from their own experience. 

But, although happily no amendment was made 
in the provisions relating to natives, the fact that 
they have been described in the Imperial Parlia- 
ment as illiberal, unjust, pernicious, and retro- 


grade, makes it necessary to see what they are. 
An impartial study of them may lead to a milder 
conclusion. Mr. Keir Hardie stigmatized the 
bill as one ' to unify the white races, to dis- 
franchise the coloured races, and not to pro- 
mote union between the races in South Africa '. 
He is both right and wrong. The coloured races 
are in no way disfranchised, but it is perfectly true 
that the bill is not intended to promote the union 
of the black race and the white. No one with 
a knowledge of South Africa could suppose that 
any constitution could do that. The intention of 
the bill, as Mr. Hardie says, is to unite the white 
races. If an attempt had been made to find in 
it a solution of the native question, it must un- 
questionably have failed. Its success, as its 
framers well knew, could be achieved only by 
leaving the question of the native franchise 
where it was. And this is what is done. The 
provisions relating to natives have all the one 
object of not prejudicing the question before 
it can be dealt with by a South African 
Parliament fully representative of South African 

Let us consider what those provisions are. In 
the first place as to the franchise. As matters 
stand, the franchise is reserved in the Transvaal 
and the Orange River Colony to white men ; 
in Natal a native can obtain a vote, but under 
restrictions which make the privilege to all intents 
and purposes nugatory ; in the Cape Colony any 

x I HE NATIVES in:. 

man* whether white or black, who has a certain 
property qualification, and can write hi* name, is 
< -n titled to vote. The position ia further compli- 
cated by the present British Government's grant 
lanhood suffrage to the Transvaal and Orange 
<T Colony. If the Convention had wished to 
create a uniform franchise throughout South Africa, 
it had various alternatives before it. First, it 
might have abolished the colour line and extended 
t liroughout the Union the Cape franchise for \vlnt< 
men and black. As every one knew, this course 
was impossible. It would have been universally 
rejected by the population of the north. And not 
merely because it gave votes to coloured men and 
Kaffirs. It involved also of necessity the dis- 
franchisement of a certain number of white men, 
at any rate in the Transvaal and Orange River 
Colony. Nor did it commend itself to unpre- 
judiced men who recognize that some form of 
representation must be given to the black races. 
In the debates in the Imperial Parliament few 
members seemed to doubt the complete success of 
the Cape franchise, but, as a matter of fact, com- 
petent observers in South Africa deem it open to 
the gravest question. t'aj>e native administration 
has indeed been excellent, but it is much to be 
doubted whether its excellence is in any way the 
result of the native vote or whether the present 
franchise affords a proper test for civilization. It 
is said, for instance, that agents of both political 
parties are accustomed, when a native, who is 


otherwise qualified, cannot write, to tench him to 
draw his name, and that in this way many natives 
without any sufficient education are on the roll. 

It was equally impossible for the Convention to 
extend the manhood suffrage of the Transvaal 
and Orange River Colony over the Union, at any 
rate without abolishing the native franchise alto- 
gether, for not even the most ardent negrophilc 
was prepared to enfranchise the teeming savages 
of Zululand, the Zoutpansberg, or the Transkei. 

Thus, if there were to be no colour bar within 
the Union, the extension of Cape franchise meant 
the disfranchisement of white men, the extension 
of the Transvaal franchise the enfranchisement of 
savages. It remained to devise an entirely new 
franchise, and some new test of fitness, more 
efficient than the Cape franchise, had to be dis- 

Now this problem is the most difficult and 
critical of all those which face South Africa. What 
was the test of fitness to be ? Was it to be the 
same for white men and black ? There is much 
to be said for the view that the ' civilization ' of 
a Kaffir needs to be tested by means quite different 
from those which are sufficient in the case of 
white men. If, however, the test were the same, 
what became of the manhood suffrage in the 
Transvaal and Orange River Colony ? Obviously 
some of the white voters in those colonies must, 
in this case also, have been disfranchised. Again, 
if a black man has a vote, is not a white woman 


entitled to one? And if white and black man 
and white woman have votes, on what ground in 
tin- privilege to be withheld tr<> m u... ;. women ? 

H the true policy separate representation for 
the coloured races ? All these are questions which 
must he faced in the future, hut for deriding \s hicli 
South An uais certainly not ripe now. Isitconceiv- 
able that they should have been settled by the 
('on \rnt ion without public discussion or time for 
thought, as part of a compromise made for the 
sake of union ? Any attempt to do so must infallibly 
have failed. The Convention, therefore, wisely 
decided to do no more than protect adequately 
the rights of the coloured voters in the Cape 
Colony, secure that Parliament should include 
men well acquainted with native conditions of 

md requirements, and leave the rest to the 
future. No bill amending the Cape franchise law 
to the detriment of the natives or coloured men 

be passed without a two-thirds majority of the 
whole Parliament, and in no case can any voter 
id uaily registered be deprived of his vote by reason 
of his race or colour. Otherwise the various fran- 
chise laws remain as they are in each colony. 

A regrettable concomitant of the compromise 
on the question of the franchise was the decision 
that only men ' of European descent ' should be 
< 1 11,1 lifted to be members of Parliament. Since 
natives in the Transvaal and Orange River 
Colony were to have no franchise rights, it would 
have been illogical to have given them the privilege 


of sitting in Parliament, seeing that they had not 
even a vote. Obviously the two things went 
together. The same thing was to all intents and 
purposes true of Natal. An alternative was to allow 
the privilege to natives and coloured men in the 
Cape Colony alone. But although such a course 
might commend itself to liberal men, it was certain 
that the population of the northern colonies would 
strenuously oppose the possibility of a black 
man, to whom they would not give a vote, helping 
to make laws for them. The Convention was pro- 
bably right in concluding that union itself would 
be menaced by the insertion of any such provision. 
And illiberal though the exclusion of all coloured 
men is, it involves no practical hardship to the 
natives. Hitherto natives and coloured men have 
been qualified for membership of the Cape Parlia- 
ment. In fifty-five years there has been no single 
example of the election of either. Moreover, 
while they are excluded from the Union Parliament, 
they may still sit in the Cape Provincial Council. 
And, lastly, this matter will undoubtedly require 
to be reconsidered when Parliament deals, as 
sooner or later it must, with the native franchise. 
The two questions hang together. If a fair solution 
is reached upon the franchise, whether in the 
direction of separate representation or not, it is 
certain that any grievance which natives or 
coloured men have in the matter of eligibility to 
Parliament will be likewise redressed. 

Nevertheless it is impossible to deny that some 


he coloured or half-caste population, particu- 
larly in the Cape peninsula, are fully a* well fitted 
aa many white men to become members of Parlia- 
nd it is regrettable that it should have been 
found necessary for greater ends to place upon 
t li'-m a disability which they feel as a stigma. 

It is very probable that the interpretation of 
the extremely vague term ( of European descent * 
will lead t<> difficulties, and will require definition 
by the courts. The Convention must have been 
aware of this probability. It was indeed impos- 
sible to devise a term which was at once compre- 
hensive and free from ambiguity. There are 
many gradations between pure black and pure 
white. The members of the Convention presum- 
ably were not ready to say in so many words that 
no man, who could be proved to have a trace of 
black blood in him, should sit in Parliament. 
They were therefore content with a phrase which, 
\\hile its final interpretation must be left to the 
fut u iv, \\ill at any rate secure their main purpose. 

The South African public are right in treating 
the question of the franchise as of fundamental 
importance. It goes to the roots of society. A 
man's opinion upon it must inevitably depend 
upon the view which he holds on the whole rela- 
tion between white men and black. On this 
great question there is yet no settled opinion in 
South Africa and time must be given it to make 
up its mind. The most diverse views are held as 
t<> tiu- future place of the black man in the social 


organism of the country. One school advocates 
the policy of segregation. It holds that natural 
tendencies will always separate the two races and 
that Government should actively encourage tin-in 
by settling the black population in the lower and 
warmer regions of the country, in which the white 
man does not flourish, while reserving the high veld 
for the white races. An essential of this policy is 
that the natives should be left in possession of the 
land in those parts of the country which are set 
apart for them, a condition to which many white 
men would strongly object. To many, again, it 
appears doubtful whether complete segregation 
can ever be reached, though they have before 
them in Basutoland and Bechuanaland indications 
that the development of the Kaffir is sounder 
when he is removed as far as may be from contact 
with the white man. Others are opposed to the 
whole idea. They, believe that the two races, 
if not destined in the far distant future to form 
one, must at least make up their minds that 
they have to live together, and that the sooner 
this fact is faced the better. They demand that 
any tentative attempts at segregation such as 
the maintenance of the protectorates of Basuto- 
land and Bechuanaland should be forthwith 
abandoned. If this view is correct, somehow 
or other some place in the social organism must 
be found for the black man. Crude repression 
and sentimentalism will both fail. The Kaffir 
cannot be treated either as an equal or as a child. 

x THENATI\I> 111 

Mm in the complexity of modern civilization it 
must be confessed that at present he IB more of 
a child than a man. With the exception of 
a very limited number of educated natives, the 
Kaffirs have not the vaguest idea of what parlia- 
mentary government means. They have never 
heard of the franchise and do not want it. The 
nt Britons of Caesar's time would be more 
capable of understanding the British Constitution 
of to-day than the Kaffirs of giving an explanation 
of the South Africa Act. 

Thus the backwardness of the Kaffirs and the 
divided opinion of white men are both arguments 
for deliberation. No immediate solution can be 
expected, and the pitfalls into which other countries 
have fallen demonstrate the need of the utmost 

The remaining important question relates to 
the future administration of the protectorates 
of Basutoland, Bechuanaland, and Swaziland. 
Hitherto they have been governed by the High 
Commissioner on behalf of the Imperial Govern* 
mm!. Their administration has been successful. 
The natives are satisfied and do not wish for any 
change. In Basutoland at any rate they are 
rapidly advancing in wealth, and are acquiring the 
first elements of civilization under happier auspices 
than elsewhere, for their seclusion helps them to 
resist the worst vices of the white man. But in 
time it is inevitable that the government of thsje 
countries should be entrusted to the people of 


South Africa. In the opinion of the Imperial 
Government the present moment was proper for 
the determination of the conditions upon which the 
ultimate transference of the administration of these 
countries should take place, and it was therefore both 
the right and the duty of the Imperial Parliament 
to see that safeguards sufficient to secure good 
government were inserted. The protectorates are 
different both in their physical characteristics, and 
in the races which inhabit them. Basutoland is 
a rich but mountainous country. It is thickly 
populated by a warlike and energetic race. Bechu- 
analand on the other hand is a dry flat bushy 
country, a large part of it desert, and its inhabitants 
have neither the energy nor the capacity of the 
Basutos. No white man is allowed to acquire 
land or settle permanently in Basutoland or the 
Bechuanaland Protectorate. Swaziland is in its 
physical characteristics more akin to Basutoland, 
but in reality presents a problem entirely different. 
For two-thirds of Swaziland now belong to white 
men. The white population is growing, and in 
time to come it will be impossible to govern 
Swaziland as if it were a purely native country. 

For the present, however, the Imperial Govern- 
ment has thought it well to treat all three 
countries on the same footing. It has recognized 
that when the day of transfer comes, there must 
be no sudden transition in the form of government. 
The place of the High Commissioner will be taken 
by the Prime Minister, assisted by a Commission, 


constituted very much on the lines of the India 
Conm-il. In all probability tho existing form of 
ad in i lustration will continue almost unchanged. 
All native authorities are agreed in the opinion 
that personal government of some form or other 
affords the best hope of the successful administra- 
tinn of native territories. A native cannot under- 
stand why his rulers should be constantly changing, 
as they do under responsible government. H< 
has no sooner learnt to look up to one man as his 
ruler than he finds another in his place. The 
Commission will ^i\< the new form of government 
the very necessary characteristic of permanence. 
Safeguards for seeurin^ to the natives their land, 
and for prohibiting the sale of liquor have been 
properly inserted. The Protectorates are not 
secured in the Act against the imposition by the 
Union of hostile tariffs or high transit duties. 
But there is no reason to suppose that they will 
not be as fairly dealt with in the future as they 
have been in the pa- 
It is quite possible that some time may elapse 
before the transfer of any of these territories. 
Before any such step is taken, the Imperial 
Government will have to be clear that it is 
desirable. But eventually it must be taken, and 
wluMi that day comes, the provisions of the Act 
will fully safeguard the interests of the natives. 




THE most striking characteristic, perhaps, of 
the Constitution is its trust in the future. In 
other countries people and states have usually 
been most loth to part with one tittle of their 
independence or individuality, and constitutions 
have for the most taken the form of very definite 
contracts of partnership setting forth in precise 
language exactly what each partner surrenders 
and what he retains. The partners have generally 
been full of suspicion both of one another and of 
the new Government which they were creating. 
There is little of this spirit in the South Africa 
Act. The people of South Africa are, in General 
Smuts's words, called upon to pool their patriotism 
as well as their material resources. Undoubtedly 
there are plenty of compromises, but they are for 
the most part of a temporary nature, intended like 
wheels for an aeroplane, to enable the unitary ship 
of state to get fairly started on its way. They do 
not jeopardize first principles. The spirit of trust 
in the new government to be created is evident in 
every part of the Act. Its most striking mani- 
festation is in the principle of the supremacy of 
Parliament ; but it is apparent also in the willing- 
ness of the colonies to assent to the complete 


repeal of their present constitutions ; in the po\\er 

granted to Parliament to recreate the Senate in 
any form it likes at the end of ten yean ; in the 
deter n 11 to leave the supremely important 

question of the financial relations between the 
central government and the provinces to be settled 
by Parliament. The Constitution breathes also 
a new spirit of trust between the two dominant 
u lute races. In the future there is to be equality 
of opportunity. ' Equal rights * are to apply, 
not only to votes, but to language also. The 
Constitution carefully avoids any suspicion of the 
dominance of one race over another. It was even 
decided to return to the name ' Orange Free 
State ', which is so dear to the hearts of the Boers 
of that colony. Whatever their opinions may 
have been in the past, South Africans are fairly 
well agreed that in the future equality is the 
only road to peace. They recognize that the 
two races, equal as they are in number and in 
influence, must live together. Neither can hope 
to attain an ascendancy over the other. The 
best that can be done is to remove all causes 
of bitterness and distrust and to leave the issue 
to the incalculable forces of the future. No one 
supposes that in the future racial antagonisms will 
cease to cause political strife, or that bilingualism 
will ever be anything but a curse. But racialism 
need no longer be the dominant issue in politics, and, 
that once gained, the rest may ultimately follow. 
An eminent historian has remarked that * the 

H 2 


success of most great political operations will, if 
narrowly examined, be found to consist in the 
fact that they are carefully circumscribed in scope 
and divested of embarrassing and inflammatory 
matter \ The South African Union will probably 
be a testimony to the truth of this saying. The 
Constitution is lengthy ; sometimes it descends 
into minute detail. Nevertheless, all its pro- 
visions are strictly germane to its great object. 
It sets up a framework of union ; it creates a 
government strong enough to cope with the 
harassing problems which afflict the country, but 
it wisely makes no attempt to settle those problems 
itself. The question of the franchise, including 
the native franchise, a premature settlement of 
which at this stage must indubitably have wrecked 
union, is left in statu quo ; the problem of Asiatic 
immigration is not mentioned ; no attempt is made 
to bring about uniformity in taxation or in law. 
Its fundamental provisions are framed on broad 
and simple lines, and no extraneous questions 
are raised to distract public attention from the 
main issue. 

Other striking aspects of the document are its 
modernity and its curious mixture of conservatism 
with democracy. It is not ' advanced ' after the 
fashion of the Australian Constitution. ' The 
people ' are mentioned but once, and then only 
casually in a somewhat unimportant financial 
provision adopted verbally from the Common- 
wealth Act. The constitution of the Senate is 


essentially undemocratic. On the other hand, the 
enshrines some of the latest devices of 
democracy, such as 4 one vote one value', auto- 
matic redint 11 inn ;..!!, and proportional representa- 
tiondevices which the Prime Minister of the 
Cape Colony, to whom advanced democrat 
personally abhorrent, has elegantly described as 
iculous democratic ideas 9 and 'mischievous 
jim-jams '. 

It is the spirit of a people and the wisdom of 
their leaders which determines the success or 
failure of any instrument of government. The 
South African people, few as they are in number, 
are composed of diverse elements. The popula- 
tinn of the towns, particularly Johannesburg, is 
mercurial in its temperament. If the share- 
market is cheerful, Johannesburg troubles itself 
little about its government. If it is depressed 
there is nothing which it does not criticize. In 
the gloomy times of !!>< 4 it was said that if a man 
had a bad hand at bridge he cursed Lord Milner. 
There is no place in which a more sudden and 
violent agitation can be raised. Nevertheless, the 
town population is composed of sound elements, 
democratic, progressive, conciliatory, and anxious 
for good and clean government. It can be trusted 
in the future staunchly to support the well-tried 
methods of British administration. Dutch political 
idaao, on the other hand, are different. In the 
Transvaal one might almost say that the clan 
system still lingered, with all its virtues and faults. 


The Boers are democratic, but not in the modern 
manner. Their passion for independence and 
self-government is equalled by their detestation of 
licence. They look for a leader who is worthy of 
their confidence, and, having found him, they are 
content to leave all ordinary matters of govern- 
ment to him. Such a method of government, 
impossible as it would be in any but a com- 
paratively simple community, has the conspicuous 
merits which historians tell us are to be found 
in a benevolent despotism or the German tribal 
system. But in this form of government every- 
thing depends on the qualities of the leaders. 
The despot must be wise as well as benevolent. 
Therefore it is sincerely to be hoped that those 
statesmen who have earned the confidence of 
the people of the Transvaal, and whom popular 
rumour credits with the larger share in the work 
of the national Constitution, may equally earn 
the confidence of all South Africa, and help to 
shape her destinies during the forthcoming critical 
years. But, whatever the future, one may predict 
that it will be long before South Africa suffers from 
those political excesses to which the city democracy 
of to-day is prone, and for the simple reason 
that the whole white population is itself an aris- 
tocracy ruling as inferiors the subject and vastly 
larger Bantu population. In such a society every 
white man is a member of a superior race, and 
where the proletariat is black, extreme democracy 
will never thrive. 



IN his book on Canada Mr. Goldwin Smith 
makes the following remark : ' The absence in the 
debate on Confederation of any attempt to fore- 
oast the composition and action of Federal parties 
t.t tally detracts from the value of the discussion. 
iiBtralia or any other group of colonies thinks 
of following the example of Canada, a forecast, 
as definite as the nature of the case will permit, 
\nieral parties will be at least as essential to 
the formation of a right judgement as the know- 
ledge of anything relating to the machinery of the 

Whatever one may think of this sweeping state- 
ment, it is no doubt interesting to reflect on the 
probable future of parties in South Africa during 
ill*- next few years. At the same time to make 
a prediction of any value is a matter of extreme 
difficulty. One can but indicate possibilities. 
For what principles are parties likely to stand ? 
Where will the dividing line be drawn ? What 
are the questions which will be fought out in 
tin political arena? The observer who takes the 
past as his guide will notice the strong tendency 
in South Africa towards the two-party system. 
!imy ignore in his inquiry Natal and the Orange 
River Colony. The population there is too small 
and homogeneous and the preponderance of one 
of thr white races over the other too marked to 


afford scope for proper party divisions. In the 
Cape Colony, however, groups have never been 
powerful and Parliament has usually been divided 
into two well-defined parties. Responsible govern- 
ment has brought about a similar result in the 
Transvaal. There is every likelihood, therefore, of 
the two-party system continuing. Independents 
are not popular, and it will be long before the labour 
party can throw much weight into the scale. 

In the past the two parties have found their 
main line of cleavage in race. The Progressives 
in the Cape and the Transvaal are the British 
parties ; the Bond and Het Volk are the Dutch par- 
ties. There are Englishmen in the Dutch parties 
and Dutchmen in the British, but these are 
the exceptions which prove the rule. It is gener- 
ally taken for granted that the first elections will 
follow broadly the present line of cleavage. It is 
assumed that existing party organizations will be 
maintained, and that the Dutch parties, the Unie 
in the Orange River Colony, Het Volk in the 
Transvaal, and the Bond in the Cape Colony, will 
be found on the same side, while the majority in 
Natal will range itself on the side of the Pro- 
gressives in the Transvaal and Cape Colony. 
Certainly such a result would seem to be only 
natural, if only because the natural tendency of 
existing party organizations will be to exert 
a strong force in that direction. It would be 
absurd, too, to suppose that the racial division 
between British and Dutch, which permeates the 


whole life of the country, in language aa well aa 
religion, and which muat colour the conaideration 
v important political queationa, will be at 
once obliterate l. It muat play a large part in 
party division* for a long time to come. Thia ia 
all the more certain from the fact that the racial 
ion \\ill mcide roughly \vith the line of 
cleavage between town and country, which ia at 
present perhaps the next most fundamental . 
MOM in the social and political life of the country. 

Yet the possibility of some grouping of parties 
not on present lines should not be dismissed aa 
inconceivable. According to the Constitution, th<- 
first act of the Governor-General must be to send 
for a leading South African statesman to form 
a miniMrv, and he must, it would seem, make his 
selection from the parties at present in office. 
ii will (It pt IK! on his choice of persons. The 
statesman \\hom he summons will have more 
than one alternative before him. He may aim 
first at forming a coalition ministry, containing 
the leaders of both races; and there is much to 
be said for such a course. 

The Constitution imposes an immense burden 
upon the first Union Government, and few even 
in South Africa realize the greatness of the task. 
The Constitution itself is but a skeleton, and its 
bones must be clothed with flesh. The first yean 
after Union will therefore be critical for the South 
African nat A Government is needed which 

ia resolutely determined to look with a single eye 


to the progress and development of the country, 
and which is strong enough to ignore personal 
differences, and to deal with the many problems 
before it with absolute impartiality, and without 
reference to race. Certainly it would seem that 
only a coalition Government is likely to be able 
to carry such a policy into practice. It alone 
would start without bias towards either side. 
Failing a coalition, it may be difficult to avoid 
some recrudescence of racial feeling. But this is 
exactly what the best men on both sides wish to 
avoid. Not only would it undo much of the work 
of the last two years, but it would stereotype 
present racial divisions, and make the attainment 
of any healthier composition of parties more 
difficult. But there are weighty arguments on 
the other side also. In the first place in any 
coalition each party must go in on fair and equal 
terms. This may well be impossible to arrange. 
Then a coalition may come to grief, if it is not 
founded on true community of aim. Any such 
breakdown must intensify rather than mitigate 
racial divisions. Again, all experience goes to 
show that the health of Parliamentary Govern- 
ment is damaged by coalitions. A strong opposi- 
tion is as essential to the working of the Parlia- 
mentary machine as a strong Government. In 
the building up of a new nation both a strong 
Government and a strong opposition are needed, 
and whichever party is in power, criticism, honest 
but keen, is essential. With a coalition there 


u < Mild be a risk of the settlement of vital question* 
l'\ unsatisfactory compromises, entered into by 
the leaders of both sides without any sufficient 
public discussion. 

1 1 , for whatever reason, a coalition Government 
is not formed, the prospective I' 
must choose his cabinet from his own party and 
the partieH in sympathy \\ith him. This may be 
no easy matter. In the first place, he will have 
it most one party under his command, that, 
namely, in his own colony. He will have to 
negotiate with the others in the remaining colonies, 
just as one independent nation negotiates with 
another. Ami there are many delicate matters to 
be settled, such as the distribution of portfolios 
between the colonies, and the use to be made of 
t hr considerable amount of patronage in the shape 
of Administratorships and Commissionerships, 
\\hirh the Government will have at its bestowal. 

Furthermore, the parties at present holding 
office, just as other parties, undoubtedly contain 
a reactionary aa well as a liberal section, and the 
< i .-ice of a leader and a programme equally 
acceptable to both may be difficult. 

Thus the task of the man who is called upon to 
t<>im a cabinet will be no easy one. It the differ- 
ences between the parties in the different colonies 
or their leaders proved deep-seated, there might 
be considerable difficulty in reconciling them, and 
in forming a Government fully representative of 
all of them. Yet such an outcome is perhaps 


improbable, since the forces against any disruption 
will be strong. Public opinion will recognize the 
rvil of starting the Union with a hopelessly weak 
Government, and certainly no Government could 
last, to which both existing parties, whether it were 
in the Cape Colony or the Transvaal, were hostile. 
It is likely, therefore, that the first cabinet will be 
<<>mposed of members of all the present Govern- 
ments. What its programme will be is another 
matter, and will depend on the relative strength of 
the influences within it. The elections will no doubt 
be held as soon as possible after the formation of 
the Government. It is useless, however, to attempt 
to forecast their result. Much will depend on the 
personnel of the Government and on the pro- 
grammes which the different parties put forward. 
Looking, however, beyond the immediate future, 
one may already descry questions which may also 
help towards the formation of other party com- 
binations. First there is the division between 
town and country. The towns will bear the taxa- 
tion ; the country will want the money to spend. 
The country will be united as one man against the 
taxation of landed property or the imposition of 
any burdens upon it. The country will generally 
be conservative and the towns progressive. The 
country will be protectionist, while the inland 
towns at any rate will incline to free trade. On 
the other hand, the coast towns, thinking that 
industrial development will centre there, will 
favour protection against imported manufactures. 


In this expectation they may be mistaken. 
Modern industry generally goes where there is 
cheap power. Owing to the abundance of coal 
and the conditions of the mining industry, electric 
power will be produced more cheaply near the 
Rand than almost anywhere in the world. This 
is a factor the effect of which may in timr > 
far-reaching. The country again will as a whole 
probably resist the active encouragement of 
immigration ; the towns will favour it. Finally, 
there must be reckoned the prejudice with which 
all parts of South Africa view the Rand. 

Nevertheless, although there will undoubtedly 
always be differences of opinion between town 
and country, too much must not be made of them. 
It is in the Transvaal that the feeling of antago- 
nism among the rural population towards tin- 
towns was strongest. Yet it is now disappearing. 
In the old days before the war there was a great 
L'ulf fixed between the urban and rural popula- 
tion. Under the dominance of President Kruger's 
ideas, and incited by all the trouble to which his 
methods of Government led, the Boers learnt to 
hate Johannesburg and its population. They were 
quite naturally ready enough to make what money 
they could out of the Rand. But they merely 
wished to squeeze the orange, and then throw it 
away. Both they and their President were re- 
luctant to admit that the great gold-mining 
industry could ever be of any permanent value 
to the country. Thus between town and country 


there was practically no intercourse. Neither 
recognized that their interests were in reality 
identical, and the progressive elements of tin- 
t-owns had no opportunity to influence the intense 
conservatism of the country. Nowadays all is 
different. The farmers have awoken to the value 
of the Rand as their market, and the Rand sees 
that its interests are bound up with the general 
prosperity of the country. Mutual knowledge 
and intercourse is growing. The leaders of the 
mining industry have shown in a practical manner 
their desire to help the prosperity of agriculture, 
and one of the largest agricultural shows in South 
Africa is now held at Johannesburg. The former 
contempt for the application of science to agri- 
culture is disappearing, and farmers are becoming 
keen to adopt the latest methods. All these 
tendencies will help to draw closer together the 
town and country population, and what is true 
of Johannesburg is in a measure true also of other 
towns in South Africa. 

A further division will be between coast and 
inland, which will cut across any division between 
the provinces themselves. For a short time 
perhaps provincial feeling may be strong, but any 
division of parties based upon it, being unnatural, 
can only be temporary. The interests of the 
northern Cape Colony, for instance, are identical 
with those of the Free State ; the interests of 
Kimberley with those of the Rand. Transvaal 
statesmen are determined to avoid the lop-sided 


concentration of wealth and industry in great 
coastal towns which characterizes Australia, and 
tii.-irdeteri! -n is reflected in the Constitution. 

Their economic p<>li< \. m the matter of customs 
duties, railway rates, and other means to their 
hand, will be to foster development inland and 
upon the coast equally. The coast towns will 
probably resent what they may deem an inter- 
ference with natural lawn. Hut if regard is had to 
thr vast mineral wealth in the interior, whether 
gold, coal, or iron, there is every probability that 
the policy deserves to succeed and will succeed. 

In addition to other questions not of immediate 
importance, such as the antagonism between 
capital and labour, between the propertied and 
non-propertied classes, in a struggle between 
uhirh. it it ever became acute, there would be 
found on the same side the land-owners and the 
mine-owners, there remain three main questions 
the native question, immigration, and the public 
service all of which must be dealt with in the 
near future, and the first two of which might 
cause a reconstruction of parties. 

Any settlement of the native franchise will 
raise the fiercest passions. No government will 
touch it until they are compelled to, but, as it 
cannot for ever be left in its present anomalous 
position, sooner or later it must be faced. It may 
result in quite new divisions in politics. 

The encouragement of immigration, with which 
will also be connected the proper treatment of the 


indigent whites, who are now being bred in large 
numbers, is another matter of the first importance 
if the white races are to make headway against 
the black. There are difficulties in the way, but 
they can be overcome. This cause will rally all 
those who are in favour of active steps being taken 
to increase the white population. It will probably 
be taken up strongly by the party corresponding 
to the present Progressive parties, and be resisted 
by the Dutch, who, notwithstanding the ease with 
which newcomers become South Africans in spirit, 
have not yet got over their dislike of Uitlanders, 
and by those, not a few in number, whose national 
patriotism takes the narrow form of a belief 
in South Africa's self-sufficiency and independence 
of the outside world. The labour party, as in 
Australia, may also resist any policy of immigration. 
The treatment of the indigent white problem 
will also probably divide parties. The problem 
exists in practically all the colonies, particularly 
in the Transvaal and the Cape Colony. The causes 
which have led to the growth of a poor white class 
are various. They were graphically described in 
an able report published in 1907 by the Transvaal 
Indigency Commission. Perhaps the most impor- 
tant cause has been the continuous impoverishment 
of the poor population by the grant of Govern- 
ment doles. Grants of money or cattle or land 
were the favourite means employed by President 
Kruger of helping his ' poor burghers '. The In- 
digency Commission irrefragably proved the hope- 


lessness of this method of combating the evil It 
IB a remedy which merely aggravates the disease. 
Nevertheless it ia one to which the popula- 
tion are accustomed, and which naturally they 
believe in to a man. The temptation, therefore, 
for the Government to relieve for the time 
being the pressure which their followers bring to 
bear upon them, by the simple expedient of pour- 
ing more money into this bottomless pit, is strong. 
Indeed, it has often proved too strong. 

I:, however, tin indigent whites are not to in- 
crease and multiply in the future, and in the 
present are to be rescued from their pitiable con- 
(1 1 1 1 o n , t he proper remedies must be applied. Doles 
will only demoralize both those who give and those 
who receive. On political grounds alone they are 
open to the strongest objection. But these are 
principles which may appear hard to the party 
u hi.-h by means of manhood suffrage the indigent 
whites are enabled to do something to support. 

The question of the public service, the main- 
tenance of its purity and the manner of its re- 
cniitiiu'nt, will require to be faced by the Union 
Parliament almost at once. Every party is 
equally concerned in its purity, but they will 
probably differ as to the means to secure it. 
Those representing the present Progressive parties, 
if true to their traditions, will demand the appoint- 
ment of an independent Commission, somewhat on 
Australian lines, to determine recruitment and 
even promotion. Another large party will pro- 


bably favour the retention by the Government of 
freedom in these matters. In the eyes of a large 
section of the Dutch a Government is not worthy 
of its name unless it can make appointments of its 
own free will, and find posts for its friends and 
supporters. The question is one of the utmost 
importance. The pernicious ' spoils system ' is 
ruinous to any country. It is a danger of a pecu- 
liarly insidious nature and one to which South 
Africa may for various reasons be considered 
prone. Signs are not wanting that the danger is 
even now far from imaginary. A sound law pro- 
tecting the Government from itself will be required 
if the high traditions of British Civil Services 
throughout the world are to be maintained. 

From this short survey it is clear that there 
will be opportunities in future for parties to 
form themselves on lines which will blur and 
may eventually obliterate the racial cleavage. 
Pessimists no doubt will say, it must be admitted 
with some plausibility, that nothing will split the 
Dutch, or unite the British. But though this has 
been so in the past, circumstances are now so 
changed that the future may be very different. 
There is in all countries a natural division 
between the influences of reaction and progress, 
of conservatism and liberalism. In South Africa 
these influences have hitherto never had room 
to grow naturally. But, as elsewhere, they exist, 
and in time they will prove themselves to be 
stronger and more lasting than any other. 



GREAT empires are welded together by pressure 
from without. Particularly in an empire whose 
parts lie scattered over the four seas some such 
pressure is needed to bring home to the ordinary 
riti/.en the weakness of disunion. In this way it 
may happen that the external dangers now 
threatening the British Empire will knit together 
in a more real union the nations which it embraces. 
Just as the British Empire could never have 
>nie into being but for Great Britain's conm 
"of the sea, so it will disappear the moment tint 

emacy is lost. With the fpnwth tf tfrg 

nun and American n 
Taecome clear not only to the people of Great 

iin but to those of the great self-governing 
colonies as well. It is not less vital to them than 
to Great Britain. Not only has Canada to guard 
a frontier of thousands of miles, but if she relies 
on her own strength she is defenceless against Un- 
American, or, indeed, any other fleet. Similarly 

Australians, separated by the breadth of tl it- 
world from their European home, are menaced in 
their far away southern seas by the overshadow- 
ing danger of the yellow races. South Africa 
appears at first sight to be more fortunate. But 

i a 


in reality there is no part of the Empire to which 
Great Britain's supremacy at sea is more vital. 

South Africa cannot live apart from the world. 
In the first place she depends for her prosperity 
on the export of her minerals. If a hostile power 
were in command of the sea, the risks to the safe 
carriage of raw gold and diamonds from Johannes- 
burg and Kimberley would be so enormous that 
the mines would probably have to stop working. 
That would be a calamity not only to the Treasury 
and to the populations of the great towns, but 
to the farmers, who look to the latter as their only 
market. The country's whole industrial and 
agricultural life would come to a sudden stop. 

Then again, Simon's Bay is still, notwithstanding 
the Suez Canal, one of the most important naval 
stations in the world, the Gibraltar of the southern 
hemisphere. Its retention by South Africa is 
only secure so long as Great Britain's supremacy 
at sea is unchallenged. If that were lost it would 
not be a difficult matter for a great power to seize 
the peninsula stretching from Simon's Town to 
Cape Point and make it impregnable against 
attack from land. 

Furthermore, South Africa depends on imports 
almost as largely as Great Britain. With the 
British fleet destroyed it would be easy to blockade 
the few British South African ports and throttle 
all trade, whether import or export. 

It is clear indeed that no country is more depen- 
dent on sea-power. Moreover, South Africans 


keep in miii'I that there are other European powers 
besides Great Britain interested in their country, 
and near neighbours to them. They bear no 
grudge against them, but they recognize 
it would be foolish to ignore the possibility of 
war between one or other of them and Great 
Britain. In that event South Africa's position 
may be precarious, for she would seem a noble 
prize for any power ambitious of colonial expan- 
sion. But if the day of trial ever comas, 
South Africa will show to the world that her 

e is high. 

Meanwhile these possible dangers are present 
to the minds of South African statesmen and are 
beginning to filter through the public consciousness. 
The only insurance against them is the British fleet. 
A Soutli African republic, independent of the 
-h Kmpire, would be defenceless. Apart from 
all other considerations, there is in the necessity 
of naval defence, therefore, the strongest reason 
why South Africa should remain a part of tin- 
Empire. But there are other forces also tending 
in the same direction. South Africa stands to 
L r iin more than perhaps any other portion of the 
Empire by the grant of preferential treatment to 
her products. Tobacco, wine, and brandy, which 
she could produce in vast quantities, and of a 
sound quality, are articles upon which it would 
be particularly easy for Great Britain to grant 
her a substantial preference. In some of them 
she would certainly be able to compete sue- 


cessfully with other countries. Then again she 
could produce sufficient maize to supply the 
whole market of Great Britain, which imports 
from other countries many million pounds 
worth every year. South Africa has for the 
past six years granted a preference to British 
goods. The grant of a reciprocal privilege 
would be of great value both materially and 
as a means of strengthening the bonds between 
the two countries. 

But South Africa has no right to demand any 
sacrifice from Great Britain. As things stand 
to-day, she has much the best of the bargain. 
The Dutch cannot be expected to be grateful for 
the money which the Imperial Treasury spent 
like water during the war, but the British are, and 
most reasonable men of both races will admit that 
the British tax-payer has done and is doing his 
fair share towards paying the price of union. To- 
wards naval defence South Africa contributes 
practically nothing. She is assisted by Great 
Britain in land defence to no small extent. 
Lastly, Great Britain has generously pledged 
her credit to the extent of 40,000,000 on behalf 
of the Transvaal. The South African tax-payer 
is thereby relieved of taxes to the extent of several 
hundred thousand pounds worth a year. 

There are no corresponding disadvantages in 
the Imperial connexion to set against these benefits. 
In the past there have been reasons which made 
it impossible for the Imperial Government to 


abstain from interference in the domestic affairs 
of the country. But the nation has now grown 
to maturity, and so soon as it is prepared to take 
up the full responsibility for its internal defence 
it can claim, and must be accorded, the same 
freedom in the management of its internal affairs 
as is granted to Canada and Australia, It may 
seem hard to one class of politician in 
^England to renounce the right of enunciating 
pica's native policy. But so long as th< 
tions of the South African Government do i 
conflict with Imperial interests and are in <<>n- 
sonancc with the humane and liberal traditions of 
Great Britain, such interference should M..I h. 
countenanced. At the best it would ! nehVr- 
tive as it would be irritating. The South African 
people must of necessity decide this matter for 
themselves. It may with confidence be left to 
their wisdom and judgement. 

Finally, when we consider that the British 
mpire guarantees to South Africa not only liberty, 
lint also security, a combination of privileges which 
-lie could possess neither as an in- 
power nor under the hegemony of any other empire, 
we may believe with confidence that to the invin- 
cible patriotism of the British section of the 
population will be added the reasoned attachment 
of the Dutch, and that unless some cataclysm 
overtakes the Empire, South Africa will remain 
a part of it and be ready to take a full shu 
responsibilities as well as its privileges. 



[9 EDW. 7. CH. 0.) 



1. Short tit!,-. 

2. Definitions. 

3. Application of Act to King's successors. 


4. Proclamation of Union. 

5. Commencement of Act. 

6. Incorporation of Colonies into the Union. 

7. Application of Colonial Boundaries Act, Ac. 


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. 

16. 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. 

19. Legislative pp\v 

20. Sessions of Parliament . 

21. Summoning of first Parliam 

22. Annual session of Parliam. 

23. Seat of Legislature. 

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. 

138 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. Section. 

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 House of Assembly. 

Both Houses of Parliament. 

51. Oath or affirmation of allegiance. 

52. Member of either House disqualified for 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. 


s,<-it,,n A.D.itot. 

64. Royal Assent to Bill*. 

65. Disallowance of Bill* 

66. Reservation ..f Hills. 

67. Signature and enrolment of AcU. 


68. Appointment and tenure of office of provincial 


69. Salaries of administrator!. 

Provincial Councils. 

70. Constitution of provincial councils, 

71 (juuliti. anon of provincial councillors. 
72. Applica sections 53 to 56 to provincial 


Tenure of office by provincial councillor*. 

Sessions of provincial councils. 

75. Chairman of provincial councils. 

76. Allowances of provincial councillors. 

77. Freedom of speech in provincial councils. 


78. Provincial executive committees. 

79. Right of administrator, Ac. to take part in pro- 

ceedings of provincial council. 

80. Powers of provincial executive committees. 

81. Transfer of power to provincial executive com- 


82. Voting in executive q ?** *fff 

83. Tenure of office by members of executive commit tees. 

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 legislati 

89. Constitution of provincial revenue fund. 

90. Assent to provincial ordinances. 

i> 1 Effect and enrolment of ordinances. 

140 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1909. Section. 

92. Audit of provincial accoui 

93. Continuation of powers of divisional and municipal 


94. Seats of Provincial Government. 


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 

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, i 

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. Registrar and officers of Appellate Division. 

115. Advocates and attorneys. 

116. Pending suits. 


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. 

9EDW.7] SOUTH AFRICA ACT, 1009 141 

A.D. 1909. 

125. PorU, harbours, and railway*. 

126. Constitution of Harbour and Railway Board. 
Administration of railways, ports, and harbours. 

128. Establishment of fund for maintaining uniformity 

of railway rates. 

129. Management of railway and harbour balances. 

130. Construction of harbour and railway works. 
Making good of defidsnnies in Railway Fur 

certain ossco. 
132. Controller and Auditor-General. 

Compensation of colonial capitals for diminution of 

\ 1 1 1 -GENERAL. 

134. Method of voting for senators, Ac. 
136. Continuation of existing colonial laws. 

136. Free trade throughout Union. 

137. Equality of English and Dutch languages. 

138. Naturalisation 

139. Administration of just 

140. Existing officers. 

141. Reorganisation of public departments. 

142. Public service commission. 
Pensions of existing officers. 

144. Tenure of office of existing officers. 
146. Existing officers not to be dismissed for ignorance 
of English or Dutch. 

146. Compensation to existing officers who are not 


147. Administration of native affairs, Ac. 

148. Devolution on Union of rights and obligati 

under conventions. 


149. Alteration of boundaries of provinces. 

150. Power to admit into Union territories admini 

by British South Africa Company. 

161. Power to transfer to Union government of native 



162. Amendment of Act. 



A.D. 1909. An Act to constitute the Union of South Africa. 

[20th September 1909.] 

WHEREAS it is desirable for the welfare and future pro- 
gress of South Africa that the several British Colonies 
therein should be united under one Government in a legis- 
lative 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 : 


Short 1. This Act may be cited as the South Africa Act, 1909. 

2. In this Act, unless it is otherwise expressed or im- 
ti'oriT. 1 " plied, the words " the Union " shall be taken to mean the 
Union of South Africa as constituted under this Act, and 

9 EDW. 7] SOUTH AFRICA ACT, 1909 148 

the words Houses of Parliament," " HOOM of Parliament," A.OltOt. 
or " Parliament," ball be taken to mean the Parliament of 
the Union. 

3. The provision* of tin* Act referring to the Ring shall 
extend to His Majesty's heirs and tneoessom in the 
sovereignty of the United Kingdom of Great Britain 
and Irelnn i 

II. TmUHioit. 

4. It shall be lawful for the Ring, with the advice of the Ptnri 
Privy Council, to declare by proclamation that, on and Uafaa. 
after a day therein appointed, not being later than one 
year after the pawing 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. 

5. The provisions of this Act bhall, unless it is otherwise COB- 
expressed or implied, take effect on and after the day so 

6. The colonies mentioned in section four shall 
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. 

7. Upon any colony entering the Union, the Colonial 
Boundaries Act, 1895, and every other Act applying to any 4*59 

of the Colonies as being self-governing colonies or colonies c. 14. ic. 
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. 

144 SOUTH AFRICA ACT, 1909 [9 EDW. 7 


Executive 8. The Executive Government of the Union is vested in 

power. th e King, and shall be administered by His Majesty in 

person or by a governor-general as His representative. 
Governor- 9. The Governor-General shall be appointed by the 
King, and shall have and may exercise in the Union during 
the Ring's pleasure, but subject to this Act, such powers 
and functions of the King as His Majesty may be pleased 
to assign to him. 

10. There shall be payable to the King out of the Con- 
solidated 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. 

Applica- 11. The provisions of this Act relating to the Governor- 
Act < to General extend and apply to the Governor-General for the 
Governor- 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 

Executive 12. There shall be an Executive Council to advise the 

Council 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 13. The provisions of this Act referring to the Governor- 
O^JUfin General in Council shall be construed as referring to the 
Council Governor-General acting with the advice of the Executive 

9 EDW. 7] SOUTH AFRICA ACT, 1909 145 

14. The Governor-General may appoint offioera Dot 
exceeding ten in number to administer such department* ipgmfai 
of State of the Union aa the Ctovenwr-General in Council 
may establish ; such officers hall bold office daring tbe " 
pleasure of tbe Governor-General. They aball be membera 

of tbe Executive Council and aball be tbe King's ministers 
of State for tbe Union. After tbe first general election 
of membera of tbe Uouae of Assembly, at hereinafter pro- 
vided, no minister shall bold office for a longer period 
than three months unless he in or becomes a member of 
either House of Parliament. 

15. The appointment and removal of all officers of tbe Appofet- 
P ul. lie service of tbe Union shall be vested in the Governor- 
General in Council, unless tbe appointment is delegated 

by the Governor-General in Council or by this Act or by 
a law of Parliament to some other author 

16. All powers, authorities, and functions which at tbe Traaafw 
o.staMishiiirnt of tho Union are in any of tho Coloni.-* ' t f .'*~ ' 
vested in the Governor or in the Governor in Council, 

any authority of the Colony, shall, as far as tbe same 
continue in existence and are capable of being exercised 
after the establishment of the Union, be vested in tbe 
Governor-General or in the Governor-General in Council, 
I the authority exercising similar powers under tbe 
Union, as tbe case may be, except such powers and functions 
aa are by this Act or may by a law of Parliament be vested 
in some other authority. 

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. 

18. Save aa in section twenty-three excepted, F^^ria 
shall be the seat of Government of the Union. 


19. The legislative power of tbe 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. 

146 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1909. 20. The Governor-General may appoint such times for 

S^dioQiof holding the sessions of Parliament as he thinks fit, and 

PAT!!*- mav aJao 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. 

Summon- 21. Parliament shall be summoned to meet not later 

ParUa- ri than 8 * x months after the establishment of the Union. 

meat. 22. There shall be a session of Parliament once at least 

elision 1 of * n everv vear 8O ^at a P er id f twelve months shall not 
Parlia- intervene between the last sitting of Parliament in one 

session and its first sitting in the next session. 
Scat of 23. Cape Town shall be the seat of the Legislature of 

the Union. 


Original 24. For ten years after the establishment of the Union 
of"" ^e constitution of the Senate shall, in respect of the 

Senate, 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 be 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 acquain- 
tance, 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 : 

9EDW.7] SOUTH AFRICA ACT, 1909 147 

(iii) After the patting of this Act, and before the day A.&IMS. 
appointed for the establishment of the Union, the 
Governor of each of the Colonies shall summon 
a special nitting of both Houses of the Legislature, 
and the two Houses sitting together as one body 
and presided over by the Speaker of the Legis- 
lative 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 be is elected 
would have held his seat. 

25. Parliament may provide for the manner in which SoU- 
the Senate shall be constituted after the expiration of ten 23X2T" 
years, and unless and until such provision shall have been of i 
he provisions of the last preceding section with 
regard to nominated senators shall continue to 
have effect ; 

) 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 
eketion of senators prescribed in this section. 
K a 

148 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

'09. 26. The qualifications of a senator shall be as follows : 
Qualifier He must 

(a) be not less than thirty years of age ; 
(6) 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 ; 
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 h've 
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. 
Appoint- 27. The Senate shall, before proceeding to the dispatch 
of any other business, choose a senator to be the President 
^ *"ke Se^tej 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 
a vote of the Senate, or he may resign his office by writing 
under his hand addressed to the Governor- General. 
Deputy 28. Prior to or during any absence of the President the 
*' Senate may choose a senator to perform his duties in his 


Reaign*- 29. A senator may, by writing under his hand addressed 

JJJJ^ors 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. 

9 EDW. 7] SOUTH AFRICA ACT, 1909 149 

: U . All questions iu the Senate shall be determined by * 
maj- >tes of senators preeent other than the President v<*m 

or the presiding senator, who hall, however, have andjfjjf 
exercise * casting vote in the caae of an equality of votes. 

House of AaemUy. 

32. The House of Assembly shall be composed of members 
directly chosen by the voters of the Union in electoral 
liviaions delimited as hereinafter provided. 

88. The number of members to be elected in the original 
provinces at the first election and until t !..- number is altered 
In accordance with the provisions of this Act shall be as 
follows : 

Cape of Good Hope . . Fifty-oil-. 

Natal Seventeen. 

Transvaal . . . Thirty-six. 

Orange Free State ... Seventeen. 

These numbers may be increased as provided in the next 
succeeding section, but shall not, in the case of any original 
, 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. 

34. The number of members to be elected in each 
province, aa provided in section thirty-three, shall be of m 
.usi-d from time to time aa may be necessary in accor- *"" 
dance with the following provisions: 

(i) The quota of the Union shall be obtained by divid- 
ing 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 con- 
stituted at the establishment of the Union : 
(ii) In nineteen hundred and eleven, and every five 
years thereafter, a census of the European 

160 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. 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 
be 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 sub- 
ject 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 

9 EDW. 7] SOUTH AFRICA ACT, 1909 161 

as far aa possible be identical throughout the 
Union : 

Male adults" in this Act shall be taken to mean 
males of twenty-one years of sge or upwards 
not being members of His Majesty's regular 
forces on fall pay : 

i or 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 

For the Cape of Good Hope . 167,546 
For Natal . $4,784 

For the Transvaal . . . 106,408 
For the Orange Free State . 41,014 
36. (1) Parliament may by law prescribe the q 
tions 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 Capo 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 leas 
than two-thirds of the total number of members of both 
Houses. A Bill so paaaed at such joint sitting shall be 
taken to have been duly passed by both Houses of Parlia- 

(2) No person who at the passing of any such law w 
registered as a voter in any province shall be removed 
from the register by reason only of any disqualification 
baaed on race or colour. 

36. Subject to the provisions of the last 
section, the qualifications of parliamenUry voters, as exist- 
ing in the several Colonies at the establishment of the 
Union, shall be the qualifications necessary to entitle 

152 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A. D. 1909. persons in the corresponding provinces to vote for tin- 
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 vot< i. 

Election*. 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 ex- 
penses, 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. 

Commia- 38. Between the date of the passing of this Act and the 
delimiu- ^ a ^ fi xe ^ f r ^ e establishment of the Union, the Governor 
t! i 0n ^ m Council of each of the Colonies shall nominate a judge 
divisions, 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 con- 
vene 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 A.D. Its*, 
them or to act aa assessors to the com ra Won or with 
ividual members thereof for the purpoae of inquiring 
into matter* eooneeted with the duties of the eomaMoa. 
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 com- 
mission 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 establish- 
ment of the Union, the Governor in Council of the Colony 
in raepeot of which he was nominated shall forthwith non 
nate another judge to fill the vacancy. After the establish- 
ment of the Union the expenses of the commission shall 
be defrayed by the Governor-General in Council, and any 
vacancies shall be filled by him. 

39. The commission shall divide each province into 
electoral divisions, each returning one member. 

40. (1) For the purpose of such division as is in the iUdd ol 
last preceding section mentioned, the quota of each pro- 
vince shall be obtained by dividing the total number of 
voters in the province, as ascertained at the last regis-*^' 
t ration 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 

tuber 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 ; 
(6) means of communication ; 
physical features ; 

(d) existing electoral boundaries; 

(e) sparsity or density of population . 

in such manner that, while taking the quota of voters as 

164 SOUTH AFRICA ACT, 1909 [9 Emv. 7 

A.D. 1000. 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 41. As soon as may be after every quinquennial census, 
toral*divi. tne Governor- General in Council shall appoint a commission 
sions. 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 carry- 
ing 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 

Powers 42. (1) The joint commission constituted under section 
^com- 1CS thirty-eight, and any subsequent commission appointed 
i*ion under the provisions of the last preceding section, shall 
limiting submit to the Governor-General in Council 

^ * ^ st ^ e ^ ectora ^ divisions, with the names given 
to them by the commission and a description 
of the boundaries of every such division : 
(6) 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 

(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 divi- 
sions of the Union in the provinces. 

(4) If any discrepancy shall arise between the descrip- 

9EDW.7J SOUTH AFRICA ACT, 1909 ir,r, 

tion of the divisions and the aforesaid map or maps, the A.D. IMS. 
description shall prevail. 

House of Assembly to be elected in the several provinces, [jjj^, 

and any re-division of the provinces into electoral divisions, * 

shall, in respect of the election of members of the House 2 

of Assembly, come into operation at the next 

tion held after the completion of the re-division or of 

any allocation consequent upon such alteration, and not 


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 

election of members of the House of Assembly 
in one of the provinces ; 

(t>) have resided for five years within the limits of the 
Union as existing at the time when he is elected ; 
(<) be a British subject of European descent 
; the purposes of this section, residence in a colony 
before iU incorporation in the Union shall be treated as 
residence in the Union. 

45. Kvery House of Assembly shall continue for five 
years from the first meeting thereof, and no longer, but 
may be sooner dissolved by the Governor-General. 

46. The House of Assembly shall, before proceeding to Appos* 
the despatch of any other business, choose a member to be SlSwa? 
the Speaker of the House, and, as often as the office of J**^ 
Speaker becomes vacant, the House shall again choose a 
member to be the Speaker. The Speaker shall cease to hold 

his office if he coaooo 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 

47. Prior to or during the absence of the 

House of Assembly may choose a member to perform his 
duties in his 

166 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1909. 48. A member may, by writing under his hand addressed 
Rarigna. to the Speaker, or, if there is no Speaker, or if the Speak, r 
ti"n of ia 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 50. All questions in the House of Assembly shall be 
jJJJJU. determined by a majority of votes of members present oth-r 
w y- than the Speaker or the presiding member, who shall, how- 
ever, have and exercise a casting vote in the case of an 
equality of votes. 

Both Houses of Parliament. 

Oath or 51. Every senator and every member of the House of 

StaToT" Assembly shall, before taking bis seat, make and subscribe 

allegiance, before the Governor-General, or some person authorised by 

him, an oath or affirmation of allegiance in the following 

form : 


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 6 
Britain and Ireland for the time being] His [or Her] 
heirs and successors according to law. So help me 


I, A.B. t 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 Ire- 
land for the time being] His [or Her] heirs and 
successors according to law. 

Member of 52. A member of either House of Parliament shall be 
House dU- incapable of being chosen or of sitting as a member of the 
qualified other House : Provided that every minister of State who is 
a member of either House of Parliament shall have the 

the other r jghfc (^ 8 ft an( j gpeafc j n the Senate and the House of 

9 EDW. 7] SOUTH AFRICA ACT, 1909 167 

Assembly, but shall vote only in the ROOM of which he is A.D. itot. 
a member. 

58. No peraoo shall be capable of being chosen or ofPiqisi 

^ aa a tenator or an a member of the Home ofJj^JJJJJ 

Assembly who- *-- 

i baa been at any time convicted of any crime or 

offence for which he hall have been sentenced 

to imprtftonment without the option of a fine for 

a term of not lees than twelve month*, unices 

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 

(6) is an unrehabilitated insolvent ; or 

in of unsound mind, and has been so declared by 

a competent court ; or 

(</) 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- 

(1) a minister of State for the Union ; 
(~>) 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 mili- 
tary forces of the Union whose services are 
not wholly employed by the Union. 

54. If a senator or member of the House of Assembly V< 
(a) becomes subject to any of the disabilities men- d 

tioned in the last preceding section ; or 
(6) ceases to be qualified as required by law ; or 
() fails for a whole ordinary session to attend with- 
out the special leave of the Senate or the 
House of Assembly, as the case may be ; 
his seat shall thereupon become vacant 

158 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. 55. If any person who is by law incapable of sitting as 
a senator or member of the House of Assembly shall, while 
^ disqualified and knowing or having reasonable grounds 
for knowing that he is so disqualified, sit or vote as a mem- 
ber 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. 

Allow. 56. Each senator and each member of the House of 
JJSnbwm. 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 com- 
mittee of which he is a member meets. 

Privileges 57. The powers, privileges, and immunities of the Senate 
of p*ri and of the House of Assembly and of the members and com- 
ra " nt - mittees of each House shall, subject to the provisions of this 
Act, be such as are declared by Parliament, and until de- 
clared 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. 

EaJes of 58. Each House of Parliament may make rules and orders 
e " 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 

9EDW.7] SOUTH AFRICA ACT, 1909 169 

under the provisions of this Act, it shall be convened by A.D. i w*. 
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. 

Powm of Parliament. 

59. Parliament shall have full power to make laws for Vmn of 
the peace, order, and good government of the Union. 

60. (1) Bills appropriating revenue or moneys or im- MOM? 
posing taxation shall originate only in the House of 8 * *- 
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 appro- 
priation 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. 

(8) The Senate may not amend any Bill so as to in- 
crease any proposed charges or burden on the people. 

61. Any Bill which appropriates revenue or moneys for Appro- 
the ordinary annual services of the Government shall deal 
only with such appropriation. 

62. The House of Assembly shall not originate or pass 
any vote, resolution, address, or Bill for the appropriation JJJJ* 
of any part of the public revenue or of any tax or impost 

to any purpose unless such appropriation has been recom- 
mended by message from the Governor-General during the 
Session in which such vote, resolution, address, or Bill is 

63. If the House of Assembly passes any Bill and the 
Senate rejects or fails to pass it or passes it with amend- 
mento to which the House of Assembly will not agree, and 
if the House of Assembly in the next session again 

the Bill with or without any amendments which have 
made or agreed to by the Senate and the Senate rejects or 
fails to pass it or passes it with amendments to which the 

160 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. 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 mem- 
bers 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 

Royal 64. When a Bill is presented to the Governor-General 

finis" 1 f r tne 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 amend- 
ments which he may recommend, and the House may deal 
with the recommendation. 

9EDW. 7] SOUTH AFRICA ACT, 1909 161 

65. The Ring may disallow any law within one year AD itot. 
after it hat been assented to by the Governor-General, an 

such disallowance, on being made known by the Governor- MM of 
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. 

66. A Hill reserved for the King's pleasure shall not lu-rr*. 
have any force unless and until, within one year from the JNsV 
day on which it was presented to the Governor-General for 

the King's Assent, the Governor-General makes known by 
speech or massage to each of the Houses of Parliament or 
by proclamation that it has received the King's Assent 

67. As soon as may be after any law shall have been n^pty 
assented to in the King's name by the Governor-General, JJ^J"^ 
or having been reserved for the King's pleasure shall have Aou. 
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 case of conflict between the two copies 
thus deposited that signed by the Governor-General shall 


68. (1) In each province there shall be a chief executive Appotot- 
officer appointed by the Governor-General in Council, who JJJ^ * 
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 
moe, the Governor-General in Council shall, as far 
as practicable, give preference to persons resident in such 


162 SOUTH AFRICA ACT, 1909 [9 EDAV. 7 

A.D. 1900. (3) Such administrator shall hold office for a term of 
five years and shall not be removed before the expiration 
thereof except by the Govern or- 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 69. The salaries of the administrators shall be fixed and 
trators! provided by Parliament, and shall not be reduced during 
their respective terms of office. 

Provincial Councils. 

Constitu- 70. (1) There shall be a provincial council in each 

provincial province consisting of the same number of members as 

councils, 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 


(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. 

Qualifier 71. (1) The members of the provincial council shall be 
provincial elected by the persons qualified to vote for the election of 
council- 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 de- 
limitation of the electoral divisions, and any necessary 
re-allocation of members or adjustment of electoral divi- 

9EDW.7] SODTI V ACT, 1909 

shall be effected by the same cnmnifasion and on the A.D im. 

Mine principles as are prescribed in regard to the electoral 
divisions for the House of Assembly. 

(2) Any alteration in the number of membeti of the 
provincial council, and any re-division of the province into 
electoral division*, Hhall 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 
uistrator shall by proclamation direct, and the pro* 

visions of section thirty-seven applicable to the election of 
members of the House of Assembly shall mutatis mutandis 
apply to such elections. 

72. The provisions of sections fifty. three, fifty-four, and Applica- 
tive, relative to members of the House of Assembly, uLwu> 

shall mutatis mutandis apply to members of the provincial * 
councils : Provided that any member of a provincial council MSB*- 
who shall become a member of either House of Parliament *****- 
shall thereupon cease to be a member of such provincial 

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

74. The administrator of each province shall by pro- r!Mail]ng n j 
clamation fix such times for holding the sessions of the P^ ^> 
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. 

75. The provincial council shall elect from among its ChatasB 
members a chairman, and may make rules for the conduct rJSu 
of its proceedings. Such rules shall be transmitted by the "ness* 
administrator to the Governor- General, and shall have full 

force and effect unless and until the Governor-General in 

L a 

104 SOUTH AFRICA ACT, 1909 [9EDW.7 

A.D. 1900. council shall express his disapproval thereof in writing 

addressed to the administrator. 
Allow. 76. The members of the provincial council shall receive 

such allowances as shall be determined by the Governor- 

General in Council. 

77. There shall be freedom of speech in the provincial 
of speech council, and no member shall be liable to any action or 
"! nl'Tiii" proceeding in any court by reason of his speech or vote 
councils, in such council. 

Executive Committees. 

Provincial 78. (1) Each provincial council shall at its first meeting 
com- UtiVe a ^ er ^y general election elect from among its members, or 
mit tees. 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 com- 
mittee shall be filled by election by the provincial council 
if then in session or, if the council is not in session, by 
a person appointed by the executive committee to hold 
office temporarily pending an election by the council. 

Right of 79. The administrator and any other member of the 
, 1 Ac. executive committee of a province, not being a member 
^ ^ e P rov * nc ^ council, shall have the right to take part 
proceed, in the proceedings of the council, but shall not have the 

council 80. The executive committee shall on behalf of the pro- 
P rovincUl v * nc * a ^ counc ^ carry on the administration of provincial 
executive affairs. Until the first election of members to serve on the 


executive committee, such administration shall be carried A.D. itot. 
on by the administrator. Whenever there are not suf- Hn ^"" 
ficient members of the executive committee to form a 
quorum according to the rales of the ooMtttee. the 
administrator shall, as soon as practicable, convene a 
ing of the provincial council for the purpose of 
members to fill the vacancies, and until such election 
the administrator shall carry on the administration of 
ncial affairs. 

81. Subject to the provisions of this Act, all powers, TtmMfar 

s, 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 

he Colony, shall after such establishment be 
in the executive committee of the province so far as 
powers, authorities, and functions relate to matters in 
respect of which the provincial council is competent to 
make ordinances. 

82. Questions arising in the executive committee shall V< 
be determined by a majority of votes of the 

present, and. in case of an equality of votes, the ad- 
ministrator 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. 

83. Subject to the provisions of any law passed by Twin* of 
Parliament regulating the conditions of appointment, tenure jj 1 

of office, retirement and superannuation of public officers, d 
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 en- 
trusted to them and to make and enforce regulations for 
the organisation and discipline of such officers. 

84. In regard to all matters in respect of which 
powers are reserved or delegated to the provincial council, to**sr to 
the administrator shall act on behalf of the Governor- JJS * 
General in Council when required to do so, and in 

ir,ii 3OUTH AFRICA A(T. 1009 [9 Emv. 7 

A i' iwu. matters the administrator may act without reference to the 
other members of the executive committee. 

Powers of Pror ///"/ ' 

Powers of 85. Subject to the provisions of this Act and the assent 
f tne Governor-General in Council as hereinafter provM.-.l. 
the provincial council may make ordinances in relation to 
matters coming within the following classes of sul 
(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 tin- 
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 peri<< 1 
of five years and thereafter until Parliament 
otherwise provides: 

(iv) Agriculture to the extent and subject to the con- 
ditions to be defined by Parliament : 
(v) The establishment, maintenance, and management 

of hospitals and charitable institutions : 
(vi) Municipal institutions, divisional councils, and 

other local institutions of a similar nature : 
(vii) Local works and undertakings within the province, 
other than 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 

9EDW. 7] SOUTH AFRICA ACT, 1909 H'.7 

ordinance of tin- province nmd in r -Uu-.n t., A M^. 
Anv maia^r Munintr within anv of iK^ classes of 

(IT UMvvQw* %*vsaa*a*g wsvs**** SBMV ** *w **^s^^^^v w 

subjects enumerated in this section : 
i) Generally all matters which, in the opinion of the 

Governor-General in Council, are of a merely 

local or private nature in the province: 
i) All other subjects in respect of which Parliament 

shall by any law delegate the power of making 
nances to the provincial council. 

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

87. A provincial council may recommend to Parliament 

the passing of any law relating to any matter in respect of JJJU 
which each council is not competent to make ordii 

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 urh procedure as shall be laid down by Parlia- 
ment, 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 ther- 

89. A provincial revenue fund shall be formed in every 
province, into which shall b paid all revenues raised 

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 ad- 
ministration generally, or, in the case of moneys paid over 
10 Governor-General in Council for particular purposes, 
then fur 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 appro- 

168 SOUTH AFRICA ACT, 1909 [9 Emv. 7 

A i> 1909. priation is to be made. No money shall be issued from tin 
provincial revenue fund except in accordance with such 
appropriation and under warrant signed by the adminis- 
trator: Provided that, until the expiration of one month 
after the first meeting of the provincial council, the ad- 
ministrator may expend such moneys as may be necessary 
for the services of the province. 

Awent to 90. When a proposed ordinance has been passed by a 

!.Tdi"" lf ll 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 prop*' 
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 91. An ordinance assented to by the Governor-General 
* n 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. 

Audit of 92. (1) In each province there shall be an auditor of 
accounts! accounts to be appointed by the Governor-General in 

(2) No such auditor shall be removed from office except 


by the Governor-General in Council for cause assigned, a~D. IMS. 
which shall be ootnmiminaUd by massage to both Houses 
of Parliament within one week after the removal, if 1'arlia- 
ment be then sitting, and, if Parliament be not sitting. 
| hen within one week after the commencement of toe next 

(3) Each such auditor shall receive out of the Consoli- 
dated Revenue Fund such salary at 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 aa may be framed by the 
Governor-General in Council and approved by Parliament, 
and no warrant signed by the administrator authorising 
the issuing of money shall have effect unless countersigned 
by such auditor. 

93. Notwithstanding anything in this Act 

all powers, authorities, and functions lawfully exercised at 
the establishment of the Union by divisional or munici 
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 

94. The seats of provincial government shall be 

For the Cape of Good Hope . Cape Town. 
For Natal . PietermariUburg. 

For the Transvaal . . Pretoria. 
For the Orange Free State . Bloemfontein. 


95. There shall be a Supreme Court of South Africa OuniHi 
consisting of a Chief Justice of South Africa, the ordinary pj^g, 
judges of appeal, and the other judges of the several divisions Mrt 
of the Supreme Court of South Africa in the provinces. 

96. There shall be an Appellate Division 

t of South Africa, mi Misting of the Chief Justice of 

170 SOUTH AFRICA ACT, 1909 [9Eow. 7 

A.D. 1909. South Africa, two ordinary judges of appeal, and i\\<> 
additional judges of appeal. Such additional judges of 
appeal shall be assigned by the Governor-General in 
Council to the Appellate Division ln>m any of the provincial 
or local divisions of the Supreme Court of South Africa, 
but shall continue to perform th.-ir duties as judges of th< ir 
respective divisions when their attendance is not required 
in the Appellate Division. 

Filling of 97. The Governor-General in Council may, during the 

JJJJJJJjJJ* absence, illness, or other incapacity of the Chief Justice of 

in Appel- South Africa, or of any ordinary or additional judge of 

aton. appeal, appoint any other judge of the Supreme Court of 

South Africa to act temporarily as such chi< f justice, 

ordinary judge of appeal, or additional judge of appeal, 

as the case may be. 

Conatitu- 98. (1) The several supreme courts of the Cape of Good 

provincial Hope, Natal, and the Transvaal, and the High Court of 

and local the Orange River Colony shall, on the establishment of the 

of Supreme Unipn, 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 jurisdic- 
tion in all matters- 
in which the Government of the Union or a person 

suing or being sued on behalf of such Govern 
ment is a party : 

(I) in which the validity of any provincial ordinance 
shall come into question. 

7] SOUTH AFRICA ACT, 1909 171 

(4) Unless and until Parliament liall otherwise provide, A.D.ISOB. 
the said superior court* shall mutatis mutandis have the 
same jurisdiction in matters aflecting the validity of elec- 
tion* of members of the House of Assembly and provincial 
council* as the corresponding oourU of the Colonies have 
tie establishment of the Union in regard to parliamentary 
elections in such Colonies respectively. 

99. All judges of the supreme court* of the Colonies, QBBSSNSV 
iiirliiding the High Court of the Orange River Colony, Jjjjj% 
holding office at the establishment of the Union shall on 
such eslablinhment become judges of the Supreme Court of l- 
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 
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 

100. The Chief Justice of South Africa, the ordinary jppofc* 
judges of appeal, and all other judges of the Supreme JJJJJJJjJ. 
Court of South Africa to be appointed alter the establish* ** 
ment of the Union shall be appointed by the Governor- '' 
General in Council, and shall receive such remuneration as 
Parliament shall prescribe, and their remuneration shall 

not be diminished during their continuance in office. 

101. The ( hi. i .In t <. pi South Africa and other judges TMMU of 
of the Supreme < 'nun .f Smith Africa shall not be removed 01 
from office except by the Governor-General in Council on 

an address from both Houses of Parliament in the sane 
session praying for such removal on the ground of mis- 
behaviour or incapa< 

102. Upon any vacancy occurring in any division of the iu 
* Court of South Africa, other than the Appellate 

ion, the Governor-General in Council may, in case he 

172 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. 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. 

Appe*lsto 103. In i-v. i -\ civil case in which, according to the law 

DmLon* in f rce at fcne 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 Colon 
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 104. In every case, civil or criminal, in which at tin- 
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 tin- 
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 105. In every case, civil or criminal, in which at the 
establishment of the Union an appeal might have been 

courts to made from a court of resident magistrate or other inferior 
divisions, court to a superior court in any of the Colonies, the appeal 

9EDW.7] SOUTH AFRICA ACT, 1909 17 i 

be made to the corresponding division of the Supreme A.D. 
Court of South Africa, !.,.< there hail be no further 
appeal against any judgment given on appeal by such 
on except to the Appellate Division, and then only 
he Appellate Divinion shall liave given special leave 
to appeal 
106. There shall be no appeal from the Supreme C 

^outh Africa or from any division thereof to the King*. 

E K, 

in Council, but nothing herein contained shall be 

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 Ring in Council Parliament 
may make laws limiting the matters in respect of which 
Mich special leave may be asked, but Bills *nt^Snig 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 Majes imril from any judgment given by 

the Appellate Division of the Supreme Court under or in 
virtuo of the Colonial Courte of Admiralty Act, 1890. u * 

107. Thf ( hi< f Justice of South Africa and the ordinary " 
judges of appeal may, subject to tbe approval of the 
Governor-General in Council, make rules for the conduct jy 
of the proceedings of the Appellate Division and prescrib- fac- 
ing 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 

108. The chief justice and other judges of the Supreme Bk 
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 4os* 
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 
Court of South Africa shall continue to apply therein. 

174 SOUTH AFRICA ACT, 1909 [OEmv. 7 

A.D iK>9. 109. The Appellate Division shall sit in Bloemfontein, 
PlacTof but mav fr m ti me to time for the convenience of suitors 
of hold its sittings at other places within the Union. 

110. On the hearing of appeals from a court consisting 
Quorum of two or more judges, five judges of the Appellate 
ing ap^ Division shall form a quorum, but, on the hearing of appeals 
paafc. from a single judge, three judges of the Appellate 1 )i \ i i< >n 
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. 

Jurisdic- 111. The process of the Appellate Division shall run 

ApeiLte throughout the Union, and all its judgments or orders shall 

Division, have full force and effect in every province, and shall )><> 

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. 

Execu- 112. The registrar of every provincial division of the 

ff^ffm Supreme Court of South Africa, if thereto requested by 

ofDTovin- any party in whose favour any judgment or order has 

Hons. n 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 


Transfer 113. Any provincial or local division of the Supreme 

fronione ^ ul ^ ^ South Africa to which it may be made to appear 

provincial that any civil suit pending therein may be more con- 

divirion to veniently or fitly heard or determined in another division 

another, may order the same to bo 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. 

114. The Governor-General in Council may appoint 
a registrar of the Appellate Division and such other officers 

9EDW.7] SOUTH AFRICA ACT, 1909 176 
thereof M bll b* required for the proper dicpttch of UM A.D. iw. 

l.| I f * . fcj f I I - I 

115. (I) The laws regulating the ad mi won of advocate* 
and attorney** to practise before any superior court of any **" 
Of the Colonies shall inuUtin mutandis apply to the admis- M 
sion of advocates and attorneys to practise in the eorre- 
spori ision of the Supreme Court of South Africa. 

advocates and attorneys entitled at the establish- 
<>f thr !'ni<.M to practise in any superior court of any 
of the Colonies shall be entitled to practise at sock 
the corresponding division of the Supreme Court of South 


(8) All advocates and attorneys entitled to practise before 
any provincial .livision of the Supreme Court of South 
>ca shall be entitled to practise before the Appellate 

116. All Miits civil or criminal, pending in any superior Ptodi 
of any of the Colonies at the establishment of the "** 

i shall stand removed to the corresponding division of 
the Supreme Court of South Africa, which shall have juris- 

t ion to hear and determine the tame, 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. 


117. All revenues, from whatever source arising, over 
b 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 raked 
or received by the Governor-General in Council from the 

176 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. administration of the railways, ports, and harbours, and 
such fund shall be appropriated by Parliament to the pur- 
poses of the railways, ports, and harbours in the manner 
prescribed by this Act. There shall also be formed a Con- 
solidated 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. 
Commit- ug. The Governor-General in Council shall, as soon 
quiry into as mav be after the establishment of the Union, appoint 
a commission, consisting of one representative from each 
between province, and presided over by an officer from the Imperial 
S 6 06 ' 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 

(a) an amount equal to the sum provided in the esti- 
mates for education, other than higher education, 
in respect of the financial year, 1908-9, as voted 
by the Legislature of the corresponding colony 
during the year nineteen hundred and eight ; 
(I) 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 execu- 
tive committee which is not provided for in such approved 

Security 119. The annual interest of the public debts of the 
\ m exi j: Colonies and any sinking funds constituted by law at the 

DW.7] SOUTH AFRICA ACT, 1909 177 

establishment of the Union *hall form a fir*t charge on A.D. isot 
the Consolidated Revenue Fu 

120. No money shall be withdrawn from the Consoli- *** 
dated Revenue Fond or the Railway and Harbour Fund JJJJJ* * 
except under appropriation made by law. But, until the 

ration of two months after the first meeting of Parlia- 
ment, the Governor-General in Council may draw there- 
from and expend such moneys as may be necessary for the 
{ul. lie service, and lor railway and harbour administration 

121. All stocks, ca*h, bankers' balances, and securities TtwMfar 
for money belonging to each of the Colonies at the establbtv 

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 pur- 
poses in any of the Colonies shall be deemed to have been 
appropriated by Parliament for the special purposes for 
which they have been provided. 

122. Crown lands, public works, and all property Crown 
throughout the Union, movable or immovable, and all Und- ' ** 
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. 

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

124. The Union holl assume all debts and liabilities 
the Colonies existing at its establishment, subject, not- 
withstanding 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 

178 SOUTH AFRICA ACT, l'.w [9E D w. 7 

A.D. 1900. charges conferred on the creditors of any of the Colonies, 
and may, subject to such conditions and rights, convert, 
renew, or consolidate such debts. 

Porto, bar- 125. All ports, harbours, ami railways belonging to the 
J25!|" d 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. 

Const it u- 126. Subject to the authority of the Governor-General 
Harbour * n Council, the control and management of the railways* 
and Rail- ports, and harbours of the Union shall be exercised through 
BoLd. 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 Parlia- 
ment and shall not be reduced during their respective terms 
of office. 

Admini- 127. The railways, ports, and harbours of the Union 

oTrail- shall be administered on business principles, due regard 

*y. being had to agricultural and industrial development within 

harboura. 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 

9EDW. 7] SOUTH AFRICA ACT, 1909 179 

payable out of the Consolidated Revenue Fund in aceor- A.D. ito. 

and one hundred and ihirly-i-iuv Th- AII..HH.I rf IttttMl 
doe on such capital invested shall be paid over from the 
Railway and Harbour Fond into the Consolidated Revenue 

ui. The Governor-General in Council shall give elbet 
to the provisions of this section as soon as and at such time 
as the necessary administrative and financial arrangemenU 
can be made, but in any case shall give full effect to them 
before the expiration of four years from the esJsblishment 

lie 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 

xeees of the outlays specified herein, Parliament nay 
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 

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. 

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 HT 
the sole control and management of the Board, and shall be * 
deemed to have been appropriated by Parliament for the 
respective purposes for which they have been provided. 

130. Every proposal for the construction of any port or COM 
harbour works or of any line of railway, before being ^ 
submitted to Parliament, shall be considered by the Board, aad 
which shall report thereon, and shall advise whether the ^ 
proposed works or line of railway should or should not be 
constructed. If any such work* or line shall be uuustroetsil 
contrary to the advice of the Board, and if the Board is of 

M a 

180 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1909. opinion that the revenue derived from the operation of such 
works or line will be in^utlicimt to nu-rt tin- 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 bo reduced 
accordingly so as not to exceed the actual loss incurred. 1 n 
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 131. If the Board shall be required by the Governor- 
d . of General in Council or under any Act of Parliament or 

QOudon* <* 

resolution of both Houses of Parliament to provide any 
FundTtn 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 Con- 
solidated Revenue Fund to the Railway and Harbour Fund. 
Controller 132. The Governor-General in Council shall appoint a 
Auditor- Controller and Auditor-General who shall hold office during 
General 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 Parlia- 
ment is not in session the Governor-General in Council may 

9 EDW. 7] SOUTH AFRICA ACT, 1909 181 

on the ground of inapsipilsmi or A.D ism 

misbehaviour ; and, when and so often as soeh sospensioo 
shall take place, a full statement of the eiieiimstiBOSi aWfl 
be laid before both Howes of Parliament within fourteen 
days after the oommeneement of its next lassinn ; and, if 
an address shall at any time during the session of Parliament 
be presented to the Governor-General by both ilonsss 
praying for the restoration to office of soeh officer, he shall 
be restored accordingly ; and if no such address be 
the Governor-General shall confirm soeh 
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. 

133. In order to compensate Pietermaritzburg and 
Bloemfontein for any loss sustained by them in the form 
of <1 ii of prosperity or decreased rateable value by ^ijj* 

reason of their ceasing to be the seats of government of ratfaaof 
their respective colonies, there shall be paid from the 
Consolidated Revenue Fund for a period not exceeding 
twenty-five yean 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 
A u < 1 i tor-General. The Commission appointed under section 
one hundred and eighteen shall, alter 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. Soeh 
compensation shall U> paid mt of the <^i K. v, n , ; , 
1 fur 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 

182 SOUTH AFRICA ACT, 1909 [9 Emv. 7 

A.D. 1900. this section Cape Town shall be deemed to include the 
municipalities of Cape Town, Green Point, and Sea Point, 
Wi.M.Ktock. Mowl.ray, ami Mmulclinsch. ( 'lareniont, 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 
wns 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 


Method of 134. The election of senators and of members of the 
wrnato *** execu ^^ ve committees of the provincial councils as provided 
Ac. 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. 

Continue 135. Subject to the provisions of this Act, all laws 
existing * n ^ T( ^ in the several Colonies at the establishment of 
colonial the Union shall continue in force in the respective pro- 
vinces 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. 

136. There shall be free trade throughout the Union, 


txit until Parliament otherwise provides the duties of AD 

and of excise leviable under the laws existing p^T^ 

in any of the Colonies at the establishment of the Union "*"* 
shall remain in force. ssslfciss, 

. Both the English and Dutch language* shall be 
official language* of ibe Union, and ahall be treated on J 
a footing of equality, ami possess and enjoy equal freedom, 
rigbU,an.l privileges ; all records, journals, and proceedings 
of Parliament shall be kept in both languages, and all Bills, 
Act*, and notices of general public importance or interest 
issued by the Government of the Union shall be in both 

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

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 pfoseeu- 
tion 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 Dis- 
tricts and the Crown Prosecutor for Griqualand West 
shall respectively continue to exercise the powers and 
duties by law vested in thorn at the time of the 

ment of the Union. 

140. Subject to the provisions of the next 

section, all officers of the public service of the Colonies 
shall at the establishment of the Union become officers 

I Union. 
141.-0) As soon ss possible after the establishment of 

184 SOUTH AFRICA ACT, 1909 [9 EDW. 7 

A.D. 1900. the Union, the Governor-General in Council shall appoint 
a public service commission to make recommendations for 
of 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 as 
ment 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 er. 142. After the establishment of the Union the Governor- 
m ^ enera ^ m Council shall appoint a permanent public service 
commission with such powers and duties relating to th< 
appointment, discipline, retirement, and superannuation <>i 
public officers as Parliament shall determine. 

Penmons 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 144. Any officer of the public service of any of the 

office of 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 be would have been 

9EDW. 7] SOUTH AFRICA ACT, 1909 185 
entitled by law in like circumstances if the Union bad not A.D. iam 

145. Tbe services of officers in tbe public service of 
any of tbe Colonies at tbe establishment of tbe Union aball T 
not be dispensed with by reason of their want of knowledge *** 
of either tbe English or Dutch language. Sftf 

146. Any permanent officer of tbe Legislature of any of 
tbe Colonies who is not retained in the eervice of tbe Union, 
or assigned to that of any province, and for whom no pro- 

>n shall have been made by such Legislature, aball be 
entitled to such pension, gratuity, or compensation aa Parlia- jjj^ 1 
ment may determine. 

147. Tbe control and administration of native affairs 
and of matters specially or differentially affecting Asiatk 
throughout th<> I'nion shall vest in tbe Governor-General ***** 
in Council, who shall exercise all special powers in regard 

to native administration hitherto vested in tbe Governors 
he Colonies or exercised by them aa supreme chiefs, and 
any lands vested in tbe 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 tbe authority of an Act of Parliament. 

148. (1) All rights and obligations under any con- Dmfc. 
- or agreements which are binding on any of tbe r%fj* 
Colonies aball devolve upon the Union at its establishment fjjatj 
Tbe provisions of the railway agreement between tbe S2T 
Governments of tbe Transvaal, the Cape of Good Hope, JJ*J 
and Natal, dated tbe second of February, nineteen hundred 
and nine, shall, as far as practicable, be given effect to by 
the Government of tbe l*i 

18i> SOUTH AFRICA ACT, 1909 [9Emv. 7 


Alteration 149. Parliament may alter the boundaries of any pro- 
vince, divide a province into two or more provinces, or 
form a new province out of provinces within tin- Knion. 
on the petition of the provincial council of every province 
whose boundaries are affected thereby. 

Power to 150. The King, with the advice of the Privy Council, 
on addresses from the Houses of Parliament of the 

>ea Union admit into the Union the territories administered 

tered by by the British South Africa Company on such terms and 

South* 1 c n dtoions as to representation and otherwise in each case 

Afrim as are expressed in the addresses and approved by the 

Company. Kjng^ ^d 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 


Power to 151. The King, with the advice of the Privy Council, 
tcTunfon ma y on addresses fr m the Houses of Parliament of the 
govern- Union, transfer to the Union the government of any terri- 
tories, 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. 


Amend- 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 pre- 
scribed, shall during such period be repealed or altered : 
And provided further that no repeal or alteration of the 
provisions contained in this section, or in sections thirty- 
three and thirty-four (until the number of members of the 
House of Assembly has reached the limit therein prescribed, 
or until a period of ten years has elapsed after the estab- 

9EDW.7] SOUTH AFRICA ACT, 1909 187 

lishment of the Union, whichever is the longer period), or AD ism 
in sections thirty-five and one hundred and thirty-teven, 
shall be valid unless the Bill embodying snob repeal or 
alteration shall be passed by both Houses of Parliament 
l 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 


A.D. 1909. 1. After the transfer of the government of any territory 
g^T^ belonging to or under the protection of His Majesty, the 
'i.Vi. ' Governor-General in Council ahall be the legislative autho- 
rity, 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 pro- 
clamation 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 Parlia- 
ment 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 adminis- 
tration 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 commis- 
sion shall be appointed by the Governor-General in Council 
as vice-chairman thereof. In case of the absence, illness, 
or other incapacity of any member of the commission, the 

9Eow. 7] SOUTH AFRICA ACT, 1909 

Governor-General in Council may appoint some other fit AJX Its*, 
and proper person to act during such shsence, illness, or 
other inoapa< 

4. It shall be the duty of the memben 

to advise the Prime Minister upon all mitten 
the general conduct of the administration of, or t 
for, the said territories. The Prime Minister, 
.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 meetinffs of the 
commission, and in case of an equality of votes shall have 
a easting vote. Two members of the eosiBiission shall 
form a quorum. In case the commission shall consist of 
four or more members, three of them shall form a 

5. Any member of the commission who 
decision of a majority shall be entitled to have the 
for his dissent recorded in the minutes of the coma 

6. The members of the commission shall have 

to all official papers concerning the territories, and they 
may deliberate on any matter relating thereto and 
their advice thereon to the Prime Minister. 

lie fore coining to a decision on any matter 
either to the administration, other than routine, of the 
lories 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 
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 recommenda- 
tion 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 bef 
Governor-General in Council, whose decision in the 

shall be final. 

190 SOUTH AFRICA ACT, 1909 [9Eow. 7 

A.D. 1909. 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 1> 
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 
rl lament, unless in any case the Governor-General in 
mril shall transmit to the commission a mil >nl- 

ing 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 pre- 
ceding 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 tne 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 

9 EDW. 7] SOUTH A v ACT, HH 

Government of the Union. In case there shall be a surplus A u ism 
for any territory, such surplus shall in the first instance 
be devoted to the repayment of any sums previously ad- 
vanced by any other territory or by the Union Govern- 
ment to make good any deficiency in the revenue of sash 

14. It ahall not be lawful to alienate any land in 
Basutoland or any land forming part of the native reserves 
in the Bechuanaland protectorate and Hwasiland from the 
native tribes inhabiting those territories. 

15. The sale of intoxicating liquor to natives shall be 
hited in the territories, and no provision giving 

i . . * . . . 

I snob 

facilities for introducing, obtaining, or 

: 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 main- 
tained in the territories. 

N. 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 inhabitaats 
<>f 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 a 
contribution towards the cost of defence and other ser- 
vices performed by the Union for the benefit of the whole 
of South Africa, so, however, that that contribution shall 
not boar a higher proportion to the total cost of saeh 

services than that which the amount payable under para- 
graph 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 

which the contribution is made. 

20. The King may disallow any law made by the 

Governor-General in Council by proclsrnstion for any 

territory within one year from the date of the proelama- 

and such disallowance on being made known by the 

IM SOUTH AFRICA ACT, 1909 [9 Emv. 7 

A.D. 1900. Governor-General by proclamation shall annul the law 
from tho day when the disallowance is so made known. 

21. The members of the commission shall be entith 1 
to such pensions or superannuation allowances as th.- 
Governor-General in Council shall by proclamation j 
vide, and the salaries and pensions of such members and 
ail other expenses of the commission shall be borne by tin- 
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. 

^3. Where any appeal may by law be made to th. 
King in Council from any court of the territories, such 
appeal shall, subject to the provisions of this Act, l>e made 
to the Appellate Division of the Supreme Court of South 

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 11 u 

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. 

Oxford : Printed at the Clarendon Press by HORACE HAET, M.A. 



JQ Brand, Robert Henry 

1918 The Union of South Africa 


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