South African Constitution of 1961

Fundamental law of South Africa from 1961 to 1986

Republic of South Africa Constitution Act, 1961

Parliament of South Africa

Long title

* 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
Royal assent| 24 April 1961
Commenced| 31 May 1961
Repealed|

* 3 September 1984
* 1 July 1986

Repeals

* South Africa Act, 1909
* Official Languages of the Union Act, 1925
* Status of the Union Act, 1934
* His Majesty King Edward the Eighth's Abdication Act, 1937

Repealed by
Republic of South Africa Constitution Act, 1983
Status: Repealed

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 ceased to be a Commonwealth realm and became a republic, albeit, temporarily, outside the Commonwealth of Nations from 1961 to 1994.

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".

## Background

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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 votes were in favour of "a Republic for the Union."[1]

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.

## Contents

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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.

C. R. Swart, the last Governor-General became the first State President on 31 May 1961.

### Executive

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The executive power was formally vested in the State President of South Africa, who as head of state had all powers previously belonging to the monarch or the Governor-General of South Africa. 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 of South Africa would serve as Acting State President under the terms of a dormant commission.

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.

### Parliament

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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 last parliament of the Union elected in 1958 would continue as the first 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 Cape 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:

1. Eight Senators, two from each province, nominated by the State President.
2. 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.
3. One Senator nominated by the State President to represent the coloured people in the Cape Province. (This Senator was removed in 1970).
4. Four Senators to represent South West Africa (SWA). Two were nominated by the State President and two were elected jointly by the Legislative Assembly of South West Africa 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 and replaced by the President's Council.

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.

### Provinces

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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.

### Other provisions

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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, 1925, the 1961 Constitution made English and Afrikaans the official languages and defined Afrikaans to include Dutch.[2]

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.

## See also

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* South African republic referendum, 1960

## Footnotes

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1. ^ "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'."
2. ^ Mixed Jurisdictions Worldwide: The Third Legal Family, Vernon V. Palmer, Cambridge University Press, 2001, page 141

## External links

[edit]

* The full text of Republic of South Africa Constitution Act, 1961 at Wikisource

* v
* t
* e

Constitution of South Africa

Preamble

Chapters|

* 1: Founding Provisions
* 2: Bill of Rights
* 3: Co-operative Government
* 4: Parliament
* 5: President and National Executive
* §83-84, §86-90
* §85, §92, §101-102
* §91, §93-99
* §95
* §100
* 6: Provinces
* 7: Local Government
* 8: Courts and Administration of Justice
* 9: State Institutions supporting Constitutional Democracy
* 10: Public Administration
* 11: Security Services
* §198-199
* §200-204
* §205-208
* §209-210
* 12: Traditional Leaders
* 13: Finance
* 14: General Provisions

Schedules|

* 1: National Flag
* 2: Oaths & Solemn Affirmations
* 3: Election Procedures
* 4: Functional Areas of Concurrent National and Provincial Legislative Competence
* 5: Functional Areas of Exclusive Provincial Legislative Competence
* 6: Transitional Arrangements
* 7: Laws Repealed

Amendments|

* First
* Second
* Third
* Fourth
* Fifth
* Sixth
* Seventh
* Eighth
* Ninth
* Tenth
* Eleventh
* Twelfth
* Thirteenth
* Fourteenth
* Fifteenth
* Sixteenth
* Seventeenth
* Eighteenth

Previous|

* South Africa Act 1909
* Constitution Act, 1961
* Constitution Act, 1983
* Interim Constitution, 1993

Related|

* Constitutional Court
* Chapter nine institutions
* Negotiations to end apartheid
* Citation of Constitutional Laws Act

Text of the Constitution

* v
* t
* e

Apartheid legislation in South Africa

Precursors
(before 1948)|

* Hut tax (1884)
* Franchise and Ballot Act (1892)
* Glen Grey Act (1894)
* Natal Legislative Assembly Bill (1894)
* Transvaal Asiatic Registration Act (1906)
* South Africa Act (1909)
* Mines and Works Act (1911)
* Natives Land Act (1913)
* Natives (Urban Areas) Act (1923)
* Immorality Act (1927)
* Native Administration Act (1927)
* Representation of Natives Act (1936)
* Native Trust and Land Act (1936)
* Native (Urban Areas) Consolidation Act (1945)
* Asiatic Land Tenure Act (1946)

Malan to
Verwoerd
(1948–1966)|

* Prohibition of Mixed Marriages Act (1949)
* Immorality Amendment Act (1950)
* Population Registration Act (1950)
* Group Areas Act (1950)
* Suppression of Communism Act (1950)
* Native Building Workers Act (1951)
* Separate Representation of Voters Act (1951)
* Prevention of Illegal Squatting Act (1951)
* Bantu Authorities Act (1951)
* Native Laws Amendment Act (1952)
* Pass Laws Act (1952)
* Public Safety Act (1953)
* Native Labour (Settlement of Disputes) Act (1953)
* Bantu Education Act (1953)
* Reservation of Separate Amenities Act (1953)
* Natives Resettlement Act (1954)
* Group Areas Development Act (1955)
* Riotous Assemblies Act (1956)
* Industrial Conciliation Act (1956)
* Natives (Prohibition of Interdicts) Act (1956)
* Immorality Act (1957)
* Bantu Investment Corporation Act (1959)
* Extension of University Education Act (1959)
* Promotion of Bantu Self-government Act (1959)
* Unlawful Organizations Act (1960)
* Indemnity Act (1961)
* Coloured Persons Communal Reserves Act (1961)
* Republic of South Africa Constitution Act (1961)
* Urban Bantu Councils Act (1961)
* General Law Amendment Act (1963)
* Coloured Persons Representative Council Act (1964)

Post-Verwoerd
(1966–1994)|

* Terrorism Act (1967)
* Separate Representation of Voters Amendment Act (1968)
* Prohibition of Political Interference Act (1968)
* Bantu Homelands Citizenship Act (1970)
* Bantu Homelands Constitution Act (1971)
* Aliens Control Act (1973)
* Indemnity Act (1977)
* National Key Points Act (1980) - List of National Key Points
* Internal Security Act (1982)
* Intimidation Act (1982)
* Black Local Authorities Act (1982)
* Republic of South Africa Constitution Act (1983)

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