The Unification of the Courts—The Supreme Court of South Africa

The setting up of a Court of Appeal for the whole of southern Africa was frequently mooted in the 1890s, both for its own sake and as a suggested precursor of political union. The judges and advocates in the Cape, the Orange Free State and the Transvaal had sufficient in common to regard themselves as belonging to the Brotherhood of the Bar: nearly all were Cape-born, where they had studied at one or two selected schools before proceeding to Universities in Holland and England. In general they were agreed on the need to maintain Roman-Dutch law as the common law of South Africa, they supported the use of English styles and procedures in court, and favoured co-operation between Englishman and Afrikaner in all walks of life. They were also at one in believing that justice should be done to dark-skinned South Africans, preferring, however, not to define the term justice too precisely.

The Cape Law Journal claimed that it could not but be a gain to South Africans to possess a small society of men of guaranteed qualifications for taking part in public affairs, generally with the time and opportunity for reflection on subjects legal, social and political. The occasion for this observation was the holding of a Bar dinner in Cape Town in honour of the Free State President, a former member of the Cape Bar and one time Chief Justice of the Free State. Amongst the assembled guests were judges and advocates from all parts of South Africa (1890).

Yet this barristerial bonhomie was unable to survive the bitter tensions generated by British attempts to secure control of the Transvaal and when in 1899 the Boer Republics finally declared war on the British Empire, the man who signed the final proclamation was the former guest of honour at the Cape dinner. In fact he went even further and fought with a Boer commando until the bitter end (F. W. Reitz).

The Anglo-Boer War (1899–1902) divided the legal profession just as it divided the white population of all South Africa. This was no ordinary war, wrote J. C. Smuts, but a vast tragedy in the life of a

people. Judges and advocates in the Boer Republics rode with the commandos as legal advisers, and then became involved in the fighting, during which some died, some were captured and others emerged as famous guerilla leaders. Amongst the prominent jurists in the Boer forces were two future Prime Ministers of South Africa, Smuts and Hertzog, both of whom distinguished themselves as resourceful and daring commando generals. After an outstanding career at Cambridge, Smuts had joined the Kruger Government as State Attorney, and during the war he changed from "a slender, slightly built man, clean-shaven with the pallor of a student, to a broadened, hardened person with the bronzed face of aseasoned guerilla and a small beard". Frequently during the war he was said to have been seen with a gun in one hand and a book on international law in the other. Hertzog resigned as a judge a week before war was declared, and after organising courts martial and explaining the rules of international law to the soldiers of the Orange Free State, he gradually assumed military command and became a trusted and skilled leader. On the Boer side there were also three future Chief Justices of South Africa; one was wounded in action and sent as a prisoner of war to Bermuda (J. de Villiers), another fought to the end in the Transvaal (N. de Wet) and the third acted as military censor (Curlewis). Three Transvaal judges rode to the front, while Transvaal prosecutors suffered particularly heavily. One senior prosecutor was killed in action, another died in a prisoner of war camp, a third was executed by the British for distributing illegal pamphlets, while a fourth was imprisoned and disbarred in England for urging that an anti-Boer lawyer in Johannesburg be disposed of (Krause). Amongst the younger volunteers in the Boer ranks were three newly qualified lawyers recently returned from Holland who twenty years later were to establish the first Afrikaans-medium law faculty in South Africa, and so pave the way for the ultimate Afrikanerisation of the Judiciary (Bodenstein, Malherbe, H. Verloren van Themaat).

Thus a whole generation of Boer lawyers were profoundly affected by the war, although it is interesting to observe that they later tended to be far less hostile to the British than subsequent generations of Afrikaner lawyers tended to be (Roos, Pirow, Vorster).

Lawyers in the Cape and Natal were not as directly involved in the fighting as their counterparts to the north but much of their work in court related to problems raised by the war. One judge was caught in the siege of Kimberley where he administered martial law during a period of what the Law Journal called "vigorous shelling and repeated

attacks by unreasoning enemies" (1899). Another judge proceeded nervously on the Western Circuit, where the guerillas were very active, encouraged, he observed sarcastically by the assurance of the Lord High Chancellor in London that it was "only a sort of a war" ("true this was in the course of an after-dinner speech and therefore not quite as binding as an utterance from the woolsack or in the Judicial Committee" (Laurence).

About a sixth of reported judgements in the Cape dealt with problems that arose directly or indirectly out of the war, many of them about the status of captured rebels and the relationships between ordinary and martial law courts. Chief Justice de Villiers was so distressed by the conflict that he came close to nervous collapse; in his judgements he favoured the supremacy of the civil over the military courts in areas away from the battle, and he also adopted a softer attitude than one of his colleagues towards Cape rebels, holding that they should be treated as belligerents rather than as criminals.^[1] An eastern Cape judge, William Solomon, who was also destined to be Chief Justice of South Africa, was placed at the head of a special Treason Court to try leading rebels-the rank and file were amnestied-and he imposed sentences ranging from a fine to two years' imprisonment.^[2] The British Army were dissatisfied with these lenient sentences, and set up martial law courts of their own, which sentenced hundreds of Cape rebels to death, thirty-five of whom were executed.

A case of a different sort which it fell to Solomon to decide was one in which a British soldier was tried for murdering an African prisoner, and in which the defence was raised that the accused had merely been obeying orders. Solomon acquitted the accused on the facts of the case but held that obedience to a superior's command did not automatically relieve a soldier of liability for his acts; if the command was manifestly illegal in that it was obviously opposed to the law of the land and to well-established army customs, then the soldier obeyed it at his peril.^[3] This judgement which was given ex tempore and without the aid of notes, subsequently became internationally known and was used as a precedent in the trials of Nazi war criminals after the Second World War. There were at least three other matters heard in South Africa

[1] R . v. Louw , 1904 SALJ, 387; criticised in Rebels as Belligerents , 1904 SALJ, 119, 318.

[2] Cape Treason Trials , 1901 SALJ, 164.

[3] R . v. Smith , 17 SC, 561; 1904 SALJ, 192; discussed in R . v. Werner , 1947 (2) SA, 828.

during the Anglo-Boer War period in which similar problems arose. One was the 'Calvinia Flogging' case in which the Cape Supreme Court upheld the conviction and imprisonment of a rebel who had whipped a number of captives, on the grounds that even if he had been obeying orders, as he claimed, such orders had not related to ordinary acts of warfare, and could not excuse his conduct.^[4] The other two cases were heard in the Transvaal by a special criminal court set up by the British to administer justice in the period before a proper Supreme Court bench was established, and both involved the killing of unarmed Africans by members of Boer commandos. In the one case, the killing was held to have been gratuitous and unrelated to military considerations, and the accused was sentenced to death, with a strong hint that he would be reprieved, while in the other the shooting of a man erroneously suspected of having been a British scout was held to have been justified. The court said in this second case that brutal and repugnant as the act was, it had been performed pursuant to an order "to further military operations, namely to allow of farms being cultivated to provide food while the owners are away fighting, to terrorise the natives so as to retain their services in the war and prevent them from deserting to the British or from giving the British any information or assistance".^[5] (The relevant order of the Republican Commandant was that Africans who left their place of residence without a pass should receive twenty-five lashes, while Africans found in possession of a pass issued by the British should be executed. Many Africans were in fact shot by the Boers in terms of this latter instruction.)

The sufferings of the Boers during the latter part of the war, and the bitterness caused by the execution of the Cape rebels, left lasting memories in the minds of the Afrikaner people. A contributor to the Law Journal justified stern actions by the British on the grounds that it became a military necessity to lay waste the country and remove noncombatants to safety; in terms of this policy, thousands of Boer homesteads were burnt down, and 100,000 Afrikaner civilians were concentrated into camps-hence the term 'concentration camps'-where 20,000 women and children died because of insanitary conditions.

The entry of British troops into Bloemfontein and Pretoria and the defeat of the Republican armies, shifted the centre of South African legal activity from the Cape to the Transvaal. The Cape Law Journal

[4] R . v. Louw , 1904 SALJ, 387, discussed in 1904 SALJ, 119, 318.

[5] R . v. Bodenstein , 30 Sept., 2 Oct., 1901; R . v. Bekker 23, Sept., 1901, reported in 1901 SALJ, 426.

was in the van of the move, announcing in 1900 that it would move to Johannesburg and be called the South African Law Journal . In Pretoria the British Army occupied the High Court building, where it renamed each court-room after a British general and converted the advocates' robing room into a mortuary.

After peace was concluded in 1902, the authorities placed great emphasis on reconciliation between Englishmen and Afrikaners, hoping thereby to create a united South Africa under white control within the British Empire. The Law Journal observed that henceforth the flag of Britain floated over all of South Africa, and added that ungenerous recriminations would be unworthy of the gallantry with which the war had been conducted on both sides and "unworthy of the English boast that those who fought the hardest could shake hands the most cordially afterwards" (1900, 1901). Sir James Rose-Innes, who was appointed as head of a strong Bench in the Transvaal, wrote that from his serene vantage point he witnessed that step unique in history by which Great Britain handed over to the men, but lately her gallant foes, the control of the territories she had conquered.

The policy of reconciliation was reflected in the new court systems established in the conquered Republics, and most of the Boer lawyers became active supporters of this policy. Two exceptions were ex-President Steyn and General Hertzog, both of the Orange Free State, who felt that the practical effect of reconciliation was the sacrifice of Afrikaner national sentiment on the altar of British Imperialism.

In the end the main losers from the war were not the Boers, who forfeited their independence, nor the British, who paid a heavy toll in lives and incurred expenses of £200 million, but dark-skinned South Africans. Before the war, the British had complained that the Kruger Government was guilty of oppression towards coloured persons, and during the war they had made extensive use of Africans for scouting and non-combatant duties. The war bore heavily on African and coloured persons in the rural areas, 70,000 of whom were placed in concentration camps, and they hoped that a British victory would lead to an improvement of their status. Yet they discovered that the new British regime in southern Africa maintained a colour bar not only every bit as rigid as that exercised by the Boers, but considerably more efficient. Whereas British occupation of the Cape a century earlier had led to the abolition of slavery and of official race differentiation, British occupation of the Transvaal and the Orange Free State led to a consolidation of white constitutional overlordship. The Times

History of the War observed that "many of the Kafirs looked for the millennium with the arrival of the British and expected not only that the black man would be treated as an equal but that all those in the public employment would receive their pre-war rate of pay, with arrears". When such pay was not forthcoming, some of the Africans went on strike, but the military compelled them to return to work by arresting their leaders. "The majority of the natives, however, accepted continuance of the old system under the new administration."

As far as Indian South Africans were concerned, they experienced the same expectations of better things to come followed by the same disappointments. Gandhi had sympathised with the Boers, but out of loyalty to the Empire had organised a team of Indian ambulancemen to assist the British. He wrote later that the friendliness of the British troops was encouraging, but the harshness of British officers most disconcerting. After the war he discovered that the military administrators in the Transvaal-he called them the autocrats from Asia-were ruder to Indians than the Republican officials had been. Attempts to expose corrupt persons in the Asiatic Department were invariably frustrated, and when two such administrators were eventually put on trial they were set free by a white jury.

Yet the racism of the new colonial administration in the Transvaal was to some extent tempered by the Supreme Court which was established there. The new Orange Free State and Transvaal judges were selected with great care, especially those in the Transvaal, where a strong court was required to encourage a resumption of mining and commerce and to provide a focus of stability in a divided and ravaged land. At the local level magistrates played a key role in effecting transition from military to civilian government; English was now firmly established as the dominant language of the courts, not only in the Cape and Natal, but throughout the whole of South Africa.

The Transvaal Supreme Court proved to be especially well constituted for the functions it had to perform, and earned a reputation as perhaps the best Bench South Africa ever produced. In many respects it was to become the model for all future courts in South Africa. Reconciliation in the political sphere was matched by a form of reconciliation in the juridical sphere, whereby Roman-Dutch common law was fused with English constitutional doctrine. British dominance, however, was reflected in the preponderance of English-speaking persons on the Bench and the use of English as the main language of the courts.

Part of the strength of the Transvaal Bench was derived from the

wide range of temperaments and interests of its incumbents, four of whom were later to become Chief Justices after Union in 1910; Rose-Innes, Solomon, Wessels and Curlewis. Rose-Innes and Solomon had both acted as Attorney-General at the Cape, where they had been liberal and pro-British without being militantly anti-Boer. Wessels was a Cape Afrikaner who had migrated to the Transvaal and become the leading barrister there; during the Anglo-Boer War he had returned to Cape Town, and criticised the 'Kruger oligarchy' and those young Afrikaners who made a Mauser into a holy symbol and thought they were omnipotent because they could hit a bottle at two hundred yards (1905 SALJ). Curlewis, on the other hand, was an English-speaking immigrant from the Cape to the Transvaal who had supported the Boer forces during the war and acted as one of their military censors. In personality these four judges differed markedly. Innes was stern and honourable ("he is so upright that he bends backwards"), Wessels was scholarly but explosive ("Juniors, dying and bleeding, lay strewn all over the place. Stentor with an Oxford accent . . . if he was short of material he turned on his brother judges"). Curlewis was painstaking ("He was never wrong, but took an eternity being right. I'd sooner lose a case before anyone than win one before him"). Yet all three of them, as well as the conscientious and lucid Solomon, were strong jurists and staunch proponents of Roman-Dutch law. Innes was a master of compact exposition and Wessels an outstanding legal historian, so that although this was a period of British domination when Dutch was eclipsed as a legal language and at least half of the Johannesburg Bar as well as some of the judges were men straight out from England, it was also a period when Roman-Dutch law was consolidated and invigorated as the common law in South Africa. In 1904 Smuts, who then enjoyed a flourishing practice at the Bar, was able to state in the Law Journal that "our venerable jurisprudence has been justified of her children in the most gratifying manner.

In their approach to questions of race, the Transvaal judges applied the Cape point of view, which asserted the general equality of all before the law as laid down by English and Roman-Dutch common law, but upheld the validity of statutes which were clearly discriminatory. Thus when the Transvaal Registrar of Deeds refused to register a transfer in favour of an African on the grounds that Africans were incapable of acquiring real rights, the court declared that there was no express statutory support for this view and that accordingly the transfer had to

be registered, since all inhabitants of the country enjoyed equal rights.^[6] Similarly the Court overruled as manifestly wrong the earlier decisions of the Republican Court which had obliged Indians not only to live in proclaimed areas but also to trade there.^[7] Innes said that a power to compel Indians on sanitary grounds to live in special locations did not include the power to prevent them from trading elsewhere, and expressed surprise that the government of what was now a British Colony should put forward a claim which the British Government had for years strenuously resisted. The Court was also willing to give a hearing to a Chinese association which had collected funds for the illegal purpose of organising passive resistance (about 1,000 Chinese had joined a passive resistance campaign led by Gandhi), and granted damages to a Chinese whose premises had been forcibly entered pursuant to a general warrant to search for Asiatics illegally in the Transvaal, and not a specific warrant to search his premises. On the other hand, the Court showed its readiness to be bound by the terms of discriminatory statutes when it held that Asiatics fell within the expression 'coloured persons' as used in Town Regulations of 1899, and were accordingly prohibited from using the sidewalks of streets.^[8]

In 1910 the four British Colonies of South Africa-the Cape, Natal, the Transvaal and the Orange River Colony-were brought together into the self-governing Union of South Africa. The separate Supreme Courts of the four territories were also fused into a single Supreme Court of South Africa, divided into Provincial Divisions and headed by an Appeal Court in Bloemfontein. Chief Justice de Villiers of the Cape was made a Baron and appointed to preside over the Appeal Court as Chief Justice of South Africa. He was joined in the Court of Appeal by another Cape judge (Maasdorp) and by Innes, Solomon and Wessels from the Transvaal. All five of the Appeal Court judges were thus former members of the Cape Bar, and it was the Cape legal tradition, as modified during the period of Colonial rule in the Transvaal, that was to predominate in the new court.

The Appeal Court was seen as the embodiment of all that was fine and honourable in South African judicial life; it introduced uniformity into South African law, laid down guidelines for its future develop-

[6] Tsewu v. Registrar of Deeds , 1905 TS, 155; cf. Tsewu, SANAC (4), pp. 787–8; 798.

[7] Habib Motan v. Transvaal Government , 1904 TS, 404.

[8] Chairman v. Treasurer, Chinese Association , 1909 SALJ, 597; Ho Si v. Vernon , 910 SALJ, 308; Salujee v. Rex , 1903 TS, 13 .

ment, and established standards which were to be followed by later courts. When the judges were housed in a new building (1929), the then Chief Justice declared that the Temple of Justice, like justice itself, was beautiful in its severe simplicity.

In its majesty and strength it is itself a symbol of the majesty and strength of the law to which all alike, the judiciary, the Executive Government, Parliament, even the King himself, must bow. Above the main entrance you will not have failed to observe the emblem in sculptored stone: the Helmet of the armour of Faith, symbolical of the nation's fast faith in the justice and power of the law; the keys of Emancipation from Tyranny, where there is no law; and the Lamp and the Torches of Truth (De Villiers, 1930 SALJ).

At a bust-unveiling ceremony a short while afterwards Sir James Rose-Innes, then in his retirement after having served as Chief Justice for thirteen years, stated that the character, integrity and efficiency of its Judiciary were a priceless asset to any country, and especially a young nation such as South Africa. The confidence of all races and all sections of the people in the Bench was a sheet anchor, he declared, equipped with which the Ship of State could safely ride out storms which otherwise might overwhelm it, and people of all races realised that when a man took a seat on the Bench he stripped himself of all predilections and endeavoured only to do right to all manner of men according to law (1931 SALJ).

Other judges frequently made the point that the Judiciary stood aside from political questions and sought merely to carry out the law without fear or favour. It was claimed that in multi-racial South Africa legal positivism had rightly characterised judgements in matters of public law. Undoubtedly, this was how the judges themselves saw their role: Englishmen and Afrikaners, foreign-trained and home-educated, monarchists and republicans, liberals and conservatives, all worked together in pursuit of what they considered to be the law, a set of rules which they felt could be objectively ascertained by recognised juristic techniques in a politically neutral manner. A legal decision was to be arrived at purely by reference to established juridical criteria, which excluded all privately held political views or ethical beliefs. This has been an enduring tradition in South Africa, and when a Canadian jurist stated that South African judges in the 1950s had checked and delayed the government's apartheid programme (McWhinney), he was rebuked by the South African Law Journal for suggesting a policy behind what had simply been the dispassionate application of generally accepted

rules. The Journal also criticised what it called the futile attempt to place judges in legal or political pigeonholes (1958).

Yet the various pronouncements of the Judiciary on questions of race have indicated that the positivist tradition in South Africa has in fact incorporated a number of different philosophical and sociological standpoints, and that the courts had on some occasions deliberately rejected the dominant racial attitudes of white South Africans, while at other times they had consciously accommodated themselves to such attitudes, even when not compelled by statute to do so. The range of judicial oscillation in this area has been narrow, since the dominance of Parliament over the courts has been accepted as clear constitutional doctrine. South Africa has had no Bill of Rights and save for clauses which entrenched language rights and the non-racial franchise in the Cape, any provision in the founding South Africa Act could be amended by a simple majority. Far from guaranteeing civic equality, this Act provided for an overwhelmingly white electorate and expressly restricted membership of Parliament to white persons only. The courts did not challenge their submission to Parliament: as one Chief Justice put it, Parliament could make any encroachment it chose on the life, liberty or property of any individual subject to its sway, and it was the function of the courts to enforce its will.^[9] Nevertheless there was a narrow but not unimportant field in which the courts could influence the character of public life, primarily by their control over the way statutes were implemented. The courts were frequently called upon to interpret ambiguous provisions in racially differential statutes, and to review the regulations of statutory bodies and the actions of administrative officials. There was also an area of common law unaffected by statute where the courts had to consider whether or not the question of race had any legal relevance in itself. Finally, judges and magistrates often made remarks, both on and off the Bench, which indicated their general attitudes to race and revealed how thinking along racial lines influenced their judicial behaviour.