The Coloured vote constitutional crisis, also known as the Coloured vote case, was a constitutional crisis that occurred in the Union of South Africa during the 1950s as the result of an attempt by the Nationalist government to remove coloured voters in the Union's Cape Province from the common voters' rolls. It developed into a dispute between the judiciary (in particular the Appellate Division of the Supreme Court) and the other branches of government (Parliament and the executive) over the power of Parliament to amend an entrenched clause in the South Africa Act (the constitution) and the power of the Appellate Division to overturn the amendment as unconstitutional. The crisis ended when the government enlarged the Senate and altered its method of election, allowing the amendment to be successfully enacted.
Background
Before the creation of the Union of South Africa, elections in the Cape Colony were conducted on the basis of the qualified franchise. This meant that the right to vote was limited to men meeting property and literacy qualifications, but not restricted on the basis of race. This differed from the other South African colonies: in Natal the franchise was limited to white men in practise though not in law, while in the Transvaal and the Orange River Colony the franchise was limited by law to white men. The South Africa Act, which was an Act of the Parliament of the United Kingdom, unified these four colonies to form the Union but preserved their franchise arrangements unchanged. Section 35 of the South Africa Act provided that no law could disenfranchise voters in the Cape Province on the basis of race, unless that law was passed by an absolute supermajority of two-thirds of the members of both Houses of Parliament sitting together in a joint session. Section 35 was entrenched by section 152, which provided that neither section 35 nor section 152 itself could be amended without a similar supermajority in joint session.
In 1931, the Statute of Westminster ended the power of the British Parliament to legislate for dominions such as South Africa and gave those dominions the power to repeal or amend British laws in force within their territories. In 1936, the South African Parliament enacted the Representation of Natives Act, removing "native" (black) voters from the common voters' rolls and allowing them to elect, separately, three members of the House of Assembly (the lower house) instead. Although this Act was passed by the required joint-session supermajority, its validity was challenged by an affected voter in the case of Ndlwana v Hofmeyr. The challenge was rejected for a number of reasons, of which the most significant was the Appellate Division's ruling that because Parliament was a sovereign legislative body, courts could not invalidate one of its Acts on the basis of the procedure used to pass it.
Separate Representation of Voters Bill
In 1948, the National Party, campaigning on a platform of apartheid, won that year's general election. The following year, Prime Minister addressed the question of coloured voting rights in a speech to Parliament, claiming that coloured voters were corrupt and immature and that they posed a threat to white control in South Africa. The government then sought to echo the 1936 Representation of Natives Act by introducing, in 1951, the Separate Representation of Voters Bill, whereby coloured voters would also lose the right to vote for ordinary constituency members of the House of Assembly and instead elect four members at separate elections. Besides the Nationalists' ideological belief in white supremacy, the bill was also motivated by the electoral power of coloured voters to swing a number of Cape constituencies from the National Party to the United Party.
The bill attracted much opposition both inside and outside Parliament. The United Party leader was against it both because he saw it as a breach of commitments given by earlier National Party leaders and because he believed it would lead coloured people to form political alliances with black and Indian groups opposed to the white control of South Africa. A group of coloured activists formed the National Convention Co-ordinating Committee to oppose the bill within constitutional limits. The Franchise Action Council, a multi-racial organisation, led a campaign of rallies, strikes and civil disobedience. The Torch Commando was founded by white Second World War veterans in response to the bill but expanded into a more general movement against the government's policies.