South African Constitution of 1961
|Republic of South Africa Constitution Act, 1961|
|Act to constitute the Republic of South Africa and to provide for matters incidental thereto.|
|Citation||Act No. 32 of 1961|
|Enacted by||Parliament of South Africa|
|Date of royal assent||24 April 1961|
|Date commenced||31 May 1961|
|Date repealed||3 September 1984|
1 July 1986
|Republic of South Africa Constitution Act, 1983|
Provincial Government Act, 1986
The Constitution of 1961 (formally the Republic of South Africa Constitution Act, 1961) was the fundamental law of South Africa for two decades. Under the terms of the constitution South Africa left the Commonwealth and became a republic. Legally, the Union of South Africa, which had existed since 1910, came to an end and was re-established as the "Republic of South Africa".
Republicanism was always a major tenet of Afrikaner nationalism. Even when nationalists controlled the government, however, political realities prevented this goal from being attained prior to the 1960s.
On 3 August 1960, the National Party government announced a referendum would be held in October of that year so that voters might weigh in on the question of whether the Union of South Africa should become a republic. The vote was restricted to white South Africans. More than 90% of eligible voters participated in the referendum, and 52.3% of those who did vote in favour of "a Republic for the Union."
The Republic of South Africa Constitution Bill was introduced in January 1961. It came into force on 31 May 1961; 31 May was a significant day in South African history, being both the day in 1902 on which the Treaty of Vereeniging was signed, ending the Second Anglo-Boer War, and the day in 1910 on which the Union of South Africa came into being.
The structure of the government of the Republic under the 1961 constitution was a Westminster system very similar to that of the Union under the South Africa Act 1909, except that the Queen and the appointed Governor-General were replaced by a State President elected by Parliament.
The executive power was formally vested in the State President, who as head of state had all powers previously belonging to the monarch or the Governor-General. The role of the State President was largely ceremonial, as he was required to act on the advice of the Cabinet. Actual executive power rested with the Prime Minister, who was head of government.
The State President was elected, for a non-renewable seven-year term, by a joint sitting of Parliament in which each Senator or member of the House of Assembly had one vote. He could be removed for misconduct or incapacity by resolutions passed by both houses of Parliament after an investigation by joint committee. When the office of State President was vacant the President of the Senate would serve as Acting State President.
The State President would appoint a cabinet (formally the Executive Council) consisting of members of the Senate and the House of Assembly. The Westminster constitutional conventions that had applied under the Union were preserved by the 1961 constitution, so in effect the State President was required to appoint a Prime Minister and Cabinet that commanded the support of the House of Assembly; commonly the Prime Minister would be the leader of the majority party.
The legislative power was vested in Parliament, which consisted of the House of Assembly (the lower house) and the Senate (the upper house). Parliament sat in Cape Town and was required to meet at least once a year. The parliament of the Union elected in 1958 would continue as the parliament of the new Republic. The House of Assembly consisted of 150 members elected by white voters from single-member electoral divisions using first-past-the-post voting, six members elected by white voters in South-West Africa, and four members elected by coloured voters in the Cape Province. (The number of ordinary members was increased to 160 in 1966 and to 165 in 1974; the coloured representative members were removed in 1970, and the members representing South-West Africa in 1977.) The House of Assembly was elected for a five-year term, but could be dissolved early by the State President (acting on the advice of the cabinet). The Senate consisted of:
- Eight senators, two from each province, nominated by the State President.
- For each province, one senator for every ten electoral divisions in the province, but at least eight senators per province. These senators were elected jointly by the members of the House of Assembly elected from the province and the members of the provincial council, using a single transferable vote system of proportional representation.
- One senator nominated by the State President to represent the coloured people in the Cape Province. (This senator was removed in 1970).
- Four senators to represent South-West Africa (SWA). Two were nominated by the State President and two were elected jointly by the SWA Legislative Assembly and the six members of the House of Assembly elected from SWA. (These senators were removed in 1977.)
Elected senators held office for a term of five years, while nominated senators held office until a change of government in which a new Prime Minister was appointed. The whole Senate could also be dissolved within 120 days after the dissolution of the House of Assembly. The Senate was permanently abolished in 1981. Bills passed by both Houses of Parliament would become law when assented to by the State President (on the advice of the cabinet), and if he refused assent he could return the bill to Parliament with proposed amendments. Once assented to, no court had the power to review the validity of an Act of Parliament unless it affected one of the entrenched clauses of the constitution.
The provisions detailing the structure of the Supreme Court of South Africa had been removed from the South Africa Act in 1959 and re-enacted in the Supreme Court Act, 1959. The structure and powers of the judiciary were not affected by the new constitution.
The provincial governments were continued essentially unchanged. The Administrator of each province was appointed for a five-year term by the State President. The provincial council was elected by white voters from single-member electoral divisions using first-past-the-post voting. In the Cape and Transvaal, the provincial councils consisted of the same number of members as the number of members of the House of Assembly elected from the province, elected from the same electoral divisions. In Natal and the Orange Free State, which each elected less than twenty-five members of the House of Assembly, the provincial councils consisted of twenty-five members. The provincial council elected four members who, with the Administrator, formed an Executive Council for the province.
While the South Africa Act had made English and Dutch the official languages of South Africa, with Dutch defined to include Afrikaans under the Official Languages of the Union Act in 1925, the 1961 Constitution made English and Afrikaans the official languages and defined Afrikaans to include Dutch. This clause was entrenched by the requirement that it could only be amended by an absolute majority of two-thirds of Senators and members of the House of Assembly sitting together in joint session.
- "Hendrik Frensch Verwoerd". South African History Online. Retrieved 20 March 2013.
On 5 October 1960 a referendum was held in which White voters were asked "Do you support a republic for the Union?" — 52 percent voted 'Yes'.
- Mixed Jurisdictions Worldwide: The Third Legal Family, Vernon V. Palmer, Cambridge University Press, 2001, page 141
- The full text of Republic of South Africa Constitution Act, 1961 at Wikisource