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  3. Stellenbosch University (SUN)
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  5. Constitutional Law 271

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Summary Prof Botha Theme A and B

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Hi everyone, these notes contain all the work for Prof H Botha's part of the work. They contain all lecture notes, the applicable sections of the textbook and all case discussions. All you need for the exam!

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  • October 31, 2017
  • 37
  • 2017/2018
  • Summary

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A. Constitutional History
1. Colonial and apartheid constitutionalism
Colonial and apartheid past
a. A racially divided state
b. Parliamentary sovereignty
c. The constitutional crisis of the 1950s
a. Racial division
 Borders (frontiers) in 18th, early 19th centuries relatively open – fluid social identities; trade,
contact, marriages across borders
 Borders close: colonialists establish hegemony over indigenous population, monopoly over
resources
 Pre-Union franchise – differences
o Continue to exist after 1910
 Universal white franchise, 1930-31
o British Parliament adopted Statute of Westminster in 1931
o Until then, Parliament had been bound by Colonial Laws Validity Act
 All bills passed by SA Parliament had to be sent to Governor-General
(representative of the Crown) for assent
 GG could assent, refuse his assent or reserve it for the King’s decision
 King could disallow a bill within one year after GG had assented
 Destruction of African voting rights, 1936
o African voters who lived in the Cape Province and had retained right to vote in 1909
Union Constitution – removed from common voters roll and given separate
representation
 Removal of Coloured vote, 1950s
 1983 tricameral Constitution
o Partial reforms introduced
o Extended franchise to coloureds and Indians in a tricameral legislature; blacks
excluded
o White minority still retained control
 Bifurcation: democratic franchise vs administrative control, tribal authority
o SA society divided into two distinct spheres – black and white
o Pseudo-democratic white state on one hand
o Authoritarian system of colonial indirect rule over majority of the people on the
other hand
 Chiefs: traditional structures increasingly subjected to British Crown
o Power became limited and Governor-General could control appointment of chiefs or
headmen

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