3TACK
iH9 AN APPEAL
TO
■iCHE INHABITANTS
UF THK
°S' SOUTH AFRICAN REPUBLIC
(TRANSVAAL),
HV
J. G. KOTZE, Chief Justice.
PRETORIA :
JOHN KEITH. PRINTER, CHURCH STREET WEST.
1898.
AN APPEAL
TO
THE INHABITANTS
OF THE
SOUTH AFRICAN REPUBLIC
(TRANSVAAL),
BY
J. G. KOTZE, Chief Justice.
PRETORIA :
JOHN KEITH, PRINTER, CHURCH STREET WEST.
1898.
TO THE INHABITANTS OF THE SOUTH
AFRICAN REPUBLIC.
Gentlemen,
You have all by this time heard of the most nujusti-
fiable aud illetj^al act of which the Head of the State has
been tj^uilty, in arrosfatiug to himself the power of sum-
marily and without any trial, as provided by Law, dismiss-
ing from ofhce the Chief Justice of the Republic, who holds
his appointment for life. You have doubtless asked your-
selves upon what grounds, and for what purpose, this most
autocratic and despotic deed has been done ? By way of
answer to this question, and of pointing out to you the
deplorable and baneful meaning of this unwarranted attack
upon the independence and sanctity of the Judiciary of the
country, I crave your careful attention to what I am about
to say on the subject, in the hope that this my appeal to
you will not be in vain.
I. It will be in your recollection that on the 22nd of
January, 1897, the High Court gave judgment in the case
of Brown vs. Dr. Lerjds N.O. The action was instituted
under the Gold Law, for the purpose of having the plaintiff
declared entitled to a licence by means of which he could
peg off certain prospecting claims, or (:)therwise to award
him a certain sum by way of damages. The Government
set up, by way of defence, a certain Volksraad resolution,
by which an invalid proclamation, published by the Presi-
dent, was affirmed. In order to maintain the validity of
this Volksiaad resolution and support the invalid act of the
President, the Government appealed to Article 32, of Law
No. 4, 1890. This Article reads as follows: " The legal
force of a law or resolution, published by the State Presi-
dent in the Gazette, may not be disputed, saving the right
of the people to petition with respect thereto." The con-
tention of counsel for Mr. Brown against this argument
was, that the Gold Law can alone be altered legislatively,
that is to say, by a declaration of the will of the Legislature
in the form of a law, and not by a bare and hurried resolu-
220029'-;
6
tion of the Volksraad, and further that Article 32, of Law
No. 4, 18U0j need not he construed as necessarily con-
flicting" with the Gi'ondwet or Constitution of the country,
and should it be found in conflict therewith, that then it
must yield to the conti-olling- voice of the Constitution, as
being the higher and fundamental law.
You will observe that the arguments directly raised
constitutional points of the utmost gravity and importance,
not merely to the inhabitants of the State, but also to all
institutions and persons domiciled abroad, who have inte-
rests at stake in the country. The Court gave a unaniinous
judgment in favour of Mr. Brown and against the Grovern-
meut. The Chief Justice and Mr. Justice AmeshofE hold-
ing, ^rsi/*/, that a mere Yolksraad resolution can not alter
the existing law of the country, inasmuch as the Yolksraad
can oul}" legislate by passing laws, and not by means of
bare resolution, as required by the G-rondwet; and, secondly,
that a law or resolution of the Yolksraad in conflict with
the constitution can not be enforced by the Court in any
particular case Avhich may come before it for decision. Mr.
Justice Morice thought that the particular Yolksraad reso-
lution did not apply to the case of Mr. Brown, as it ought
not to be supposed that the Legislature intended it to apply
to matters ah-eady pending; in other words, that the Yolks-
raad must be taken not to have intended to give the reso-
lution retrospective effect. It has been said that the Chief
Justice and Mr. Justice Ameshoff might have avoided these
constitutional questions and decided the case upon the
narrow ground on which Judge Morice rested his decision,
and the most extraordinary and unwarranted motives were
suggested in certain quarters for the views expounded by
the majority of the Court. These aspei'sions I pass by in
silent contempt, for the sword of justice and not the poisoned
dagger of the assassin is the weapon which Themis has
entrusted to the hands of her priests and votaries in the
sacred and impartial exercise of their functions. With all
respect for the view taken by Judge Morice, I have no
hesitation in saying that to my mind only one interpreta-
tion can be put upon the words of the Yolksraad resolution
in question, which, reads as follows :
" That no person whosoever, deeming himself injured
hy this jproclamation, shall be entitled to compensation out
of the public Treasury, or from any official who has been
instrumental in carrying out the said proclamation."
It is difficult to see how Mr. Brown could possibly have
come to the Court for redress, unless he deemed himaelf in-
jured by the inodamiiHon, and as he did resort to the Court
to enforce h:s rif^hts, it is perfectly clear that but for the
proclamation, and the Volksraad resolution confirmins: it,
he would have had nothing of which to complain. The
object of this Volksraad resolution, passed after Mr. Brown
had already issued his summons or citation, was to prevent
his enforcing his rights and obtaining any compensation.
The constitutional questions, therefore, of the capacity of
the President and Executive to act contrary to the law, and
of the Volksraad to act contrary to the Constitution or
Grondwet, were directly in issue, and the Court was bound
to give a decision upon them, which, as I have already
stated, was pronounced by the Chief Justice and Mr. Justice
Ameshoff.
II. In laying down that both the Executive and Volks-
raad must exercise their functions in keeping with the con-
trolling voice of the Constitution or Grondwet, the Court
did not, as is sometimes asserted, seek to raise itself above
these two important bodies in the State. On the contrary,
the Court has thei'eby simply sought to protect itself and
the suitors who resort to it, by maintaining that any inter-
ference by the Executive and Legislature with pending
cases can not be tolerated, inasmuch as the people have ex-
pressly in the Grondwet conferred judicial functions solely
upon the Courts of Justice, in the exercise of which they
are declared to be free and independent, and inasmuch as
the people have also in the Grondwet guaranteed to all
persons within the Republic full protection for their rights.
The Court merely laid down the obvious and elementary
truth that the three powers in the State, the trias politica,
if you will, must, each in its own sphere, work side by side
with one another, under and subject to the Constitution.
The Court was also careful to lay down in the judgment
that the Volksraad is the highest authority (hoogsteyezagj
in the State, for the simple reason that the Constitution
expressly says so. There must necessarily be some such
highest authority, as I pointed out in my judgment^
for as such the sanction of the Volksraad is, e.g., re-
quired for the validity of treaties concluded with foreign
powers, for the alienation of State property, the raismg of
loans and pledging the credit of the State, and many other
matters which can not be regulated without that sanction.
8
Tliis, however, does not mean that the Volksraad is the
supreme or sovereign power in the State, for that vests and
resides in the people alone. The Yolksraad, therefore, can
not raise itself above the Constitution, and seek by means
of laws or resolutions, without any previous knowledge and
sanction of the people, to alter the terms of the instrument
or Constitution by Avhich it has been created. The Volks-
raad then, as explained in Brouut vs. Leyds, N.O., is only
the " hig-hest power " under and by virtue of the Constitu-
tion, and can not override its provisions. It, therefore,
inevitably follows that if any Act of the Yolksraad is
alleged to be contrary to the Constitution in any particular
suit before the Court, the latter, finding upon due investi-
gation that such is the case, is bound to follow the written
Constitution under and in accordance with the provisions of
which alone the Volksi'aad can exercise legislative functions.
If this be not so, and the contrary doctrine is to prevail,
viz., that the Volksraad is the supreme and sovereign
power and above the Constitution, if in other words the
Volksraad be a law unto itself, mark what the results must
be. The Volksraad can then at any moment pass a resolu-
tion that a person's property may be taken for public
or any other purposes, or be expropriated, say for the pur-
poses of the railway, without any compensation ; or that
the interest stipulated for or running on mortgage bonds,
bills of exchange, promissory notes, &c., shall not be claim-
able ; or that the day of payment of the principal sum shall
be postponed until after the lapse of so many years ; and
all this notwithstanding the Grondwet guarantees to every-
one his property and personal rig-hts.* If now we are to
hold that everything done by the Volk^-raad has the force of
law, the legal tribunals in the cases I have supposed
would be bound to uphold the action of the Legislature,
and thereby violate the Grondwet and deny justice to those
who, by an appeal to the Constitution, seek protection of
their rights. In the same way, if the Volksraad can do as
it pleases, it may, by a mere resolution, abolish the Execu-
tive Council or give it full legislative powers ; cause people
to be punished without due trial ; create itself into a Su-
preme Court of Appeal from all the other judicial tribunals,
and in short tear up the Constitution altogether. It is of
* This is no exaggerated representation of the matter. The Records
aiford abundant proof of similar proceedings by the Volksraad at the sug-
gestion of the Government. — J. O.K.
9
no avail for those who hold the theory that the Volksraad
is above the Grondwet, to say that if the Volksraad at-
tempt to exercise judicial f auction it will be stepping
beyond its province and be acting ultra vires, for by
this theory the Volksraad, and not the people, is the
sovereign and supreme power, and can exercise its will
without any restrictions. How then can such a body, ex
hypothesi subject to no legal and constitutional restraint,
act ultra vires? The only sound view, therefore, is that,
seeing we have a G-rondwet in which it is expressly de-
clared that all power emanates from the people to the
various departments in the State, the sovereign power vests
in the people alone. Now, the will of the people is ex-
pressly declared in the (xrondwet, by which legislative
functions are entrusted to the Volksraad and judicial func-
tions to the Courts of Justice. It follows that neither the
Legislature nor the Judiciary is subservient to each i.ther,
but that both are subject to the controlling terms of the
Constitution, by which they have been created. Again, if
by the words of Art. &!, of Law No. 4 of 1890, '' the legal
validity of a law or resolution, published by the State
President in the 'Jazefte, may not be questioned, saving
the right of the people to petition with regard thereto,"
we are to understand that anything and everything pub-
lished by the President in the shape of a law or resolution
is to be accepted under all circumstances as absolutely
binding and beyond inquiry by the Court, when the issue
is distinctly raised in a given case, it follows that if it be
shown that what has been published as a law has been ap-
proved by a A'olksraad, in which there was not the proper
quorum, or has never even been before the Raad at all, and
private rights are infringed thereby, there will be no re-
dress. What is this but a violation of the Constitution — a
virtual denial of justice and a closing of the Courts of Law?
It is, therefore, clear that the High Court does possess the
poAver of testing laws and resolutions by reference to the
Grondwet in any particular case which ma}- come bef(jre it,
and requires the exercise of that power. It is an accepted
axiom by all the most approved constitutional writers that,
where the written Constitution of a country is silent on the
point, there the Court of necessity possesses the testing
power. What would be the use of placing a clause in the
Constitution or Grondwet, providing how alone it can be
altered in a given and special way, if the testing power does
10
not also necessarily and tacitly accompany it ? Otherwise
it would be the simplest thing to pass laws and resolutions
contrary to the Grondwet, and if the Court is not to test
these either in matter or form, whenever a suitor complains
that his rights have been affected thereby in conflict with
the Constitution, the protecting clause in the Constitution
would at once become a mere dead letter. It can not be
too often repeated that in exercising the testing right only
when the particular case judicially calls for it, the Court is
not guilty of any usurpation of authority, nor does it thereby
set itself above the Volksraad. It merely maintains the
controlling force of the Constitution or fundamental law
over against that of an ordinary law or resolution, just
precisely in the same way as the Court would enforce an
ordinary law above a resolution by the Executive. Nor
can the Legislature by an ordinary law or resolution seek
to define and interpret the Constitution for the Court.
These principles have been admirably expounded to the
plainest demonstration by many of the most competent
authorities, among whom it is sufficient at present to men-
tion Hamilton in the Federalist, Opzoomer, Cooley, and
Bryce.
III. It has also been said that the President and the
Executive had reason to be dissatisfied with the judgment
in Brown vs. Leyds, N.O.; that it came upon them as a
complete surprise ; that it reversed two previous decisions
given by a majority of the Court ; that it rendered rights
and titles insecure, and cast doubts on the validity of other
laws and resolutions than the one affecting the case of
Brown vs. Leyclx, N.O. ; that the judgment in fact intro-
duced a state of legal uncertaintv amounting to chaos. Now,
far be it from me to deny that the Government may have
been placed in difficulties by the judgment in Mr. Brown's
case. These difficulties have, however, been much exag-
gerated, and it is with no little surprise that I have seen
these exaggerated statements of the difficulties made by
persons from whose education and training the public had a
right to expect the expression of calmer and sounder views.
Moreover, the difficulties which arose through the parti-
cular case of Mr. Brown were entirely of the Government's
own making. It is perfectly correct that on two previous
occasions the High Court had by a majority of two Judges,
first in 1 884 and again in 1 888, given a decision at vari-
ance with the constitutional doctrines laid down in the
11
Brown judgment ; but this last decision can not fairly be
said to have come as a surpi'ise to the President and Execu-
tive Council, as the following circumstances will clearly
show: — In April of 1895 the case of Hess vs. The State
came on in appeal before the full Court. In this case Mr.
Hess, who very ably conducted his appeal in person, raised
three points for the decision of the Court; the first of which
was as follows : " ihat Act 11 of 1893, under which he
had been tried, is really no law, inasmuch as (a) it was not
passed by the Volksraad with a due observance of the re-
quired formalities, and {h) because there existed no press-
ing necessity for passing this Act, as required by Article
12 of the Grondwet." On the 2nd May, 1895, some two
and a half months before Mr. Brown had issued his sum-
mons and before the Volksraad resolution of which he com-
plained had been taken, the Court gave a unanimous judg-
ment in favour of Mr. Hess on the second of the three
points which he had raised. I, howevor, took this oppor-
tunity, in a considered written judgment, Avhich will be
found reported at page 1- of Mr. Duxbury's Reports,*
of openly and solemnly stating, with regard to the first
point taken by Mr. bless, that I had come to the conclusion
that some of the constitutional positions laid down by the
decision in the McCorkindale case in 1884 were untenable
and could no longer be supported. This my judgment was
also published in the newspapers ot the time, and I can not
assume that any members of the Executive nor the legal
advisers of the Government were ignorant thereof, more
especially if we bear in mind that the State was a party to
the case. Here I may add that, although my colleagues
(Judges Ameshulf and Jorissen) did not express any opinion
on the first point raised by Mr. Hess, it was well known that
Mr. Justice Jorissen approved the views expressed by his
son, the late lamented Judge S. Jorissen, in the Doms case
in 1888. By no possibility can it be said that, after I had
publicly stated from the Bench what my views were on the
constitutional questions touched upon in the McCorkindale
case and raised Vjy Mr., Hess in his appeal, the Government
and its legal advisers had any reasonable gounds for think-
ing that, when a similar case should come up for decision,
I would not follow what I had so recently laid down in the
Hess case. Again, if the Government thought it in the
'See also 2, Off. Rep., u. l.S!>, ami Vol. 12, Cape Law Journal, p. 226.
—J. O.K.
12
iuterest of the country to close the gold-field which had
been set open^ and on which Mr. Brown desired the licence
to go and peg off claims, there was nothing to have pre-
vented them from introducing legislation to that effect —
that is to say, by proposing to alter the Gold Law by a
proper draft law (and not by a mere hurried resolution of
the Volksraad), under and in terms of Article 12 of the
Grondwet, declaring the necessity and urgency of the case,
and asking the Yolksraad to dispense with the usual three
months' previous publication. Instead of following this
safe and constitutional course of altering the Gold Law,
subject to any rights which Mr. Brown and others might
have acquired in the meanwhile, the Government, wishing
to proceed by way of resolution, was advised b\" its law
officers to adopt this unconstitutional course in July of 1895,
and this in spite of what had fallen from the head of the
Court in the case of Hess vs. The State some two and a half
months previously. I will nft say that this course was
adopted for the express purpose of bringing about a colli-
sion between the High Court and the Executive and
Legislature, but I do say that in the face of the warning
given in the case of Mr. Hess, the Government and its
advisers can not justly maintain that they were not suffi-
ciently warned. The President personally was well aware
of the true position, for, during an interview with His
Honour on the afternoon of Saturday the 7th September,
1895, some six weeks after Mr. Brown had issued his
summons, Mr. Kruger mentioned the Hess case and wished
me to promise him that I would obey and enforce the
Volksraad resolution as law. I told the President that I
could not give him any such promise, but would do my
duty, after I had heard the case, according to law and my
conscience. Mr. Kruger, finding I was not to be per-
suaded, then informed me that if I did not obey Yolks-
raad resolutions he would be obliged to suspend me from
office. This, be it remembered, was in September, 1895,
fully two months before the Brown case came on for hearing,
and while the Volksraad was still in session. I then felt
that a trial of strength between the President and the High
Court was no longer far off. From the above facts it will
be st^en firstly, that the assertion of the Brown judgment
having come upon the President and Executive quite un-
expectedly, can not be accepted as satisfactory ; and
secondly, that had the Government taken a timely warning
13
and been properly advised to adopt the safe and constitu-
tional course for altering the Gold Law, the collision caused
after the Brown case could not have arisen. Why that course
was not taken is a question which those concerned can best
answer for themselves. The Court was bound to give a
decision in the Brown case according to its lights and
conscience. The reasons for the judgment have been fully
set forth in the judgment itself ; but the responsibility for
the difficulty which arose after that decision entirely
rests with the Government. The first and only duty of the
Court is not to inform the Government, one of the parties
to the suit, what its decision is going to be, but conscien-
tiously and fearlessly to do justice.
That a Court or Judge may in a subsequent case de-
cline to be bound by a previous decision, given between
different parties under similar circumstances, goes without
saying. Such is not, nor ought it to be, of frequent occur-
rence; but to say that such is never under any possibility
to happen on a future occasion is to talk nonsense. We
may just as well assert that, although men are fallible.
Judges are not. But I prefer under present circumstances
not to press my own views on this point, and will defer to
the opinion of those who on more than one occasion have
been a lamp unto my feet and a light unto my path, for it
is at all times pleasant to travel in good company. Thus
Chancellor Kent tells us that for very cogent reasons and
upon a clear manifestation of error the Court should depart
from its previously pronounced decisions ; and Lord Hale
thus expresses himself : " It is most certain that time and
long experience is much more ingenious, subtile, and judi-
cious, than all the wisest and acutest wits, co-existing
in the world, can be. It discovers such varieties of emer-
gencies and cases, and such inconvenience in things,
that no man would otherwise have imagined." Hence,
says Lord Eldon, if a Judge is honestly convinced that
his previous decision was wrong, he should not hesita,te
to depart from it ; and more recently in our own day
the Court of Appeal in England in rr Hallett's Estate set
aside a whole series of previous decisions pronounced
by itself.* A brother Judge, far removed from South
Africa's troublous atmosphere, and well fitted by his
experience and training to form an opinion, in addressing
* 8ee this matter more fully discussed in Brown\vs. LeycU. N.O., pp.
7-8, published by John Keith, Pretoria. — J.G.K.
It
me on the subject thus expi'esses himself : " You were
deciding- a question which, from your point of view, the
Legislature could not deal with at all. In such a case
the Court ought to disregard its former decisions if it thinks
them wrong, because there is no other way of setting the
law right. The Court, whose duty it is to interpret all
laws, must have jurisdiction to determine whether a par-
ticular act of the Legislature was an infringement of the
Grondwet. Your reasoning seems to me to be (|uite un-
answerable. That your decision was in favour of good
governmeut is certain. In any young country it is most
desii-able, in the interests of constitutional freedom, that
there should be a fundamental law by which the powers of
the Legislature shall be defined, and that this, like any
other law, shall be interpreted by the Courts when occasion
arises." In the words of the Right Honourable Mr. Bryce,
where the Court had " to choose between the evil of un-
settling the law by reversing, and the evil of perpetuating
bad law by following, a former decision, it may reasonably,
in extreme cases, deem the latter evil the greater." Mr.
Bryce also points out, as indeed every student of Consti-
tutional Law is supposed to know, that the Supreme Court
of the United States has on more than one occasion felt
called upon to depart from its previous decision, but the
state of confusion, anarchy and chaos, which is said to
result from such a condition of things, has not manifested
itself in the great and free Republic across the North
Atlantic, the decisions of whose highest legal tribunal stand
forth as among the greatest monuments of judicial learning
and skill.
IV. Now, although the Grovernment can not be ab-
solved from responsibility in not having taken proper legis-
lative and constitutional precautionary measures between
2nd May, 1895 (the date of the Hess judgment), and 22nd
January, 1897 (the date of the Brown judgment), once the
decision in Mr. Brown's case was given, and assuming the
Government to have grounds for deeming itself placed in a
difficulty thereby, its course was perfectly clear. When
the High Court of the country gives a decision, that de-
cision must be respected and enforced. It is, however,
open to the Government, if it deems it in the interest of
the State, to take the necessary steps to remedy oi- remove
any difficulty oi* uncei-tainty which the judgment ma}' liave
caused. Tho plain road to have travelled was the adoption
15
of the constitutional course, viz., to cause all such Volks-
raad resolutions, as might be considered necessary, to be
collected together and put into the form of a law and to
have laid this law before the Volksraad for immediate
adoption and promulgation in terms of Article 12 of
the Grondwet. In the next place, the Government
should have ceased from proposing and the Volks-
raad from sanctioning legislation by means of mere re-
solution, as being contrary to the Grondwet. Nor
should the Volksraad have attempted altering the Grond-
wet in future by ordinary or hurried legislation, but steps
should have been taken for introducing an amendment
to the Constitution, providing how alone it can be altered
by special legislation, and by proposing a draft measure to
that effect for the special consideration and sanction of the
people.* Instead of adopting this obviously constitutional
method, the President and Executive presented a measure
to the Volksraad, amounting to a direct attack upon the
independence of the High Court in the discharge of its
functions. This measure, which goes by the name of Law
No. 1, of 1897, and distinctly violates the Grondwet and
other laws of the land, was first considered in the Executive
Council, one of whose members proposed that the Chief
Justice should be called in to discuss the measure and the
situation. The President and Dr. Leyds, however, success-
fully opposed this proposal. The measure, having passed
the Executive, was brought by the President to the notice
of the Volksraad in a secret session with closed doors, and
on the Monday following, viz., the 22nd February, 1897,
was openly laid on the table of the house. This was the
first intimation which the Judges received of the intentions
of the Government, and on the following day they addressed
a document to the head of the State in which they declared
themselves as follows : —
" In all earnestness they wish to intimate to His Honour
the State President and the Executive Council as
their unanimous opinion that this measure infringes
upon the independence of the High Court. In their
opinion the measure can be postponed. At the pre-
* I admit that it is a weak spot in the situation, that the Grondwet
does not state how it can be altered. It is plain, however, that it can not
be altered except by the express notice and sanction of the people, who
enacted it. It is afso plain that this defect does not give the Volksraad.
the right to override or alter the Grondwet as it pleases. — J.G.K.
16
sent moment there is no immediate dangei' of legal
insecurity, whicli, however, might arise thi'ough the
over hasty acceptance of the draft measure now on
the table. Should the Honourable the First Volks-
raad decide to elect a committee from its midst to
consider the difficulties of the matter and remove
them, the Judges herebj^ offer their assistance, in
the conviction that a satisfactory and friendly solu-
tion will be arrived at/'
This letter from the Judges was not acted on, nor was
any reasonable time allowed them to submit a n;y- solution
of the supposed difficulty. In the shortest possible period,
viz., three days, the measure was affirmed by the Legislature.
The most extraordinary, far-fetched, and groundless argu-
ments were used by the President and the State Secretary,
in hurrying this measure through the Raad. It is impos-
sible to read the discussions in the Raad without coming to
the conclusion that these two men, placed in positions of the
highest trust and respousibility, led on au attack upon the
High Court under the guise of protecting rights and titles
secured by Volksraad resolutions. Aiid I regret to say
that the discussions also show that the great bulk of the
members of the Honourable the First Raad, were led away
by this obscuring of the real issue involved. They were
nearly all imbued with the notion that the High Court
sought to set itself above the Volksraad, an idea which I
trust I have shewn to be devoid of all foundation. There
were a few exceptions, however, notably in the case of Mr.
Loveday, who correctly grasped the situation, and who sub-
sequently, in an able and elaborate address at Barberton,
completely i-efuted most of the untenable arguments and
contentions of the President and his supporters.*
To seek to justify this measure, known as Law No. 1,
1897, and with which I will deal later on, under the plea
that titles and vested rights created by Volksraad resolu-
tion have been rendered insecure by the Brown judgment,
will, upon a little reflection, appear to be nothing but a
subtei'fuge. I think I may safely claim that in Febi'uary,
189/, men looked upon the High Court as the protector of
their rights and liberties in case of any illegal infringement
thereof. If now hurried Volksraad resoluti<:)ns can create
titles and rights, it also follows that similar hui'ried Volks-
* This address of Mr. Loveday, wliich is pul^lishcd in the Gold Fields
News of 12th Match, 1897, Mill well repay ])erus<al. — J. O.K.
17
raad resolutions can as easily put an end to and brush away
these rights. Do not run away with the idea that such a
thing is impossible or improbable. The Records of the
High Court and of the Volksraad will show several instances
where attempts have been made to interfere with and deprive
meu of their vested rights under existing laws by means of
Volksraad resolutions. The only security m such a case,
that the persons possessing the rights would have, would be
the High Court, which could either protect these rights or
award adequate compensation. But, if Law No. 1 of 1897,
be law, and is to be enforced as such, the Court can not
inquire into or test any of these Volksraad resolutions, and
80 the (Tovernment would be left free to introduce, ami the
Volksraad to take, any resolution depriving parties of rights
already acquired, and the High Court wo Id be rendered
completely powerless to protect the aggrieved parties.
Again, it is a most extraordinary manner of seeking to
uph(^ld alleged rights acquired by Volksraad resolutions,
to proceed to violate, as the so-called Law No. 1 of 1S97
distinctly does, a whole series of fundamental laws ly which
the Judicial independence is guaranteed. The laws athrm-
ing that the Judges are appointed for life, and can only be
dismissed from office after trial and judgment of L'"uilty
prouounced by a specially constituted Court, have at one
blow been rendered nugatory and torn to pieces by this
barbaric measure, for which President Kruger is directly
responsible. The Constitution and laws that have been
thus shamefully violated contain certain guarantees for the
independence of the Judiciary, viz., that the members of
the Bench are absolutely independent in the exercise of
their judicial functions; that they are appointed for life,
and can only be dismissed after a proper trial by a specially
constituted tribunal.* These guarantees, moreover, it has
been well observed, have been introduced quite as much
for the protection of suitors and the public as tor that oi
the Judges themselves. What a mockery, therefoi-e, t<j
pretend to justify a measure which bears all the marks of
* The laws thus violated by the so-called law No. 1 of 1S97 are The
Grondwet (1S.")S) ^1.5 and §62. The law known as the Amended (irondwet
of President Burgers in 1877, Ch. o, §4. The Order in Council of Her
Majesty dated at Windsor, 29th November, 1878, Art. 2. Doth these in-
struments are ratified by the Convention of Pretoria, Art. '.i ; Law No. 3,
1881. «i4 (Bvlage tot de (irondwet). The Law commonly known as the
Amended < irondwet of 1889, *jll."). The Law No. 2 of I89(i, SIT), §82, i58G,
and §1.39. —J.G.K.
18
a deliberate attack upon the Judiciary, by the flimsy pre-
tence that its adoption was absolutely necessary to protect
rights created by Yolksraad resolutions ! In its anxiety to
protect these alleged precarious rights^* a measure is
clandestinely drafted and discussed, and then openly forced
and harried through the Legislature by all sorts of far-
fetched, stupid, and groundless assertions, which, in strik-
ing at the independence of the Judiciary, also strikes at the
credit and stability of the State. t
V. I now propose to deal briefly with the so-called
Law No. 1 of 1897 itself. I say briefly, for it is my inten-
tion of writing more fully on this subject, when I will show
that for several years there has been a deliberate attempt
to deprive the High Court of its independence, and will at
the same time publish and comment upon all the documents
in my possession with reference to the constitutional ques-
tioH. By this measure it is in the first place declared by
the Legislature that the testing right does not exist and
never did exist. Now, here the Legislature went outside
its province, and has asserted something quite contrary to
well-accepted constitutional pi-inciples. When the Court
declares that the testing right does exist, and has exercised
it, no mere assertion by the Volksraad can undo or render
nugatory the express declaration of the Court in its judg-
ment; for it is an indisputable proposition, accepted as an
axiom, that the interpretation of the Co^istitution is a
Judicial Act, and the Government and Volksraad can only
take measures, if they think it in the interests of the i^tate,
to get the people to declare in a constitutional way whether
the testing right shall continue to exist or be abolished. It
must be borne in mind, as I have already observed, that
where the written Constitution of the country is silent
there the Court necessarily possesses the testing power.
The Volksraad, therefore, by asserting that no testing
right exists, or ever did exist, virtually assumed judicial
functions and constituted itself into a Court of Appeal. It
is deplorable that the State has never yet had any member
* I say precarious advisedlj-, for I have shown that just as a Volksraad
resolution may liave created rights, a Volksraad resolution can at any time
put an end to these rights. — J.G.K.
t I have by permission placed in an appendix a leading article from
the Tramvaal Advertiser, of 15th ^larch, 1897, under the editorship of the
venerable l)r. Scoble, which puts the various points I have touched upon
above in a most clear and irrefutable manner. I commend it to the
earnest attention of all right -thin uing men.- -J.G.K.
19
in its Executive who lias exhibited even a rudimentary
knowledge of the first principles of government and ad-
ministration. This so-called Law No 1 of 1897 seeks to
deprive the Judges of the testing right, authorises the
President to put a certain question to the members of the
Bench that they would not arrogate to themselves the so-
called testing power, and empowers him to instantly dis-
miss the Judge or Judges from whom he receives no answer,
or, in his opinion, an unsatisfactory answer. The Judges
for the future are also subjected to a humiliating form of
oath. This measure, it seems almost superfluous to ob-
serve, is no law. It alters the Constitution of the country
without any previous reference to the people, and for the
reasons given in the Brown case it is devoid of all legal
validity. The five Judges, on the 1st March, 189 , unani-
mously issued a declaration, stating that by this so-called
Law No. I of 1897 a vital violation of the independence of
the Bench had taken place, and that the Judges were ex-
posed in future to the suspicion of bribery. In fact, the
uatui-e and tendency of this measure ai-e so immoral that
one of the Judges openly said that no honourable man can
occupy a seat on the Bench -while Law No. I of 1897 re-
mains on the Statute Book.
The question above referred to was duly put by the
President to the Judges, who had unanimously signed a
letter to the effect that they did not feel themselves at
liberty to give any answer, when the Chief Justice of the
Cape Colony arrived in Pretoria, and through his mediation,
a written understanding was proposed by the Judges ou
19th March, and accepted -vrithout any qualification by the
President on the ■22nd March, 1897. By the terms of this
compact the Judges uu'iertook not to test laws and res(jlu-
tious of the Volksraad on the distinct vnderstanding that
the President would as soon as possible submit a draft
Grondwet to the Volksraad providing how alone the Grond-
wet can be altered by special legislation in a manner analo-
gous to the provisions contained in the Constitution ui the
Orange Free iSlate on the subject, and incorporating the
guarantees for the independence of the Judiciary. By
these means the Judg^.'S intended to protect both the Con-
stitution and the Bench against sudden surprises and attacks,
such as for iustanc-- the oft-quoted measure known as Law
No. 1 of lb97. They did this to avert a crisis, and, in
oi'Jer to help the Government and Volksraad out of a diffi-
20
culty of their own creation, placed themselves under a tem-
porary obligation upon the faith of the President as speedily
as possible complying with his portion of the understanding.
By this understanding the Judges also offered their services
in aiding to di-aw up a draft Grondwet, and this offer was
likewise accepted by the President. It is ])eriectly clear
that the President had iiimself to take the initiative, and in
consultation with the Judges submit the draft to theVolks-
raad, which would then have to reject, approve, or amend it.
The Pr.-sident was moreover in honour bound to use his
utmost iuiiuence to get the Volksraad to adopt the draft,
in which case there can be no reasonable doubt that the
Legislature would have met the wishes of the President.
In the event of the Volksraad adopting the draft, it would
in the ordinary course have referred the matter to a com-
mission out of its number, which was at libert}' to call in
the Judges, Avho had also in the understanding expressed
their readiness to aid the Volksraad if desired. The com-
mission would th*^u have made its report to the Volksraad,
and the draft Grondwet would have been discussed and
provisionally settled by the Volksraad, and ordered to be
published for the people's information and sanction. This
was all to be done as speedily as possible, that is to say, in
the ordinary session commencing on 3rd May, 1897. The
draft Grondwet, thus provisionally settled by the Volks-
raad, would, after due publication for the information s,nd
sanction of the people, have come up for final consideration
in the ordinary session of 1898 and at once come into opera-
tion. Tf the President and the Volksraad had been so dis-
posed, the matter could even have been finally considered
in a special session of the Legislature, convened for the
express purpose, before the ordinary May session of 1898.
With the coming into force of the new Grondwet the so-
called Law No. 1 of 1897 would have been consio-ned to
oblivion. Instead, however, of himself submitting the draft
after consultation with the Judges, the President, on the
31st May, 1897, without any consultation or recognition of
the Judges, asked the Volksraad to appoint a commission
from among its number to draw up a draft (^ rondwet, and
to collect to/^ether into one systematic whole all the laws of
the land. The Volksraad agreed to the request of the
President, and appointed a commission from among its
number as desired. It will at once be seen that in several
important particulars the President, at the outset, departed
21
from the terms of the compact between himself and the
Judtres. In the first place^ he did not, before goin^ to the
Vulksraad, consult the Judges, as they, regard being had
to the terms of the understanding, had every right to ex-
pect ; secondly, instead of himself directly and in the first
instance submitting the draft Gron;wet, the Pi-esident
asked the Volksraad to appoint a commission to do, inter
alia, what he had himself undertaken to do ; and thirdly,
instead of submitting this draft Grondwet as speedily as
possible, the proposal of the President, that the Volksraad
Commission was also to collect all the laws of the laud into
one systematic whole, clearly showed that the time-limit
" as soon as possible " occurring in the understandiug had
been departed from, for it would take even a commission
of qualified experts at least from two to three years to
properly systematise all the local laws. When the proposal
of the President, and its adoption by the Volksraad, be-
came known, the Judges had several consultations, and al-
though there was no difference of opinion among us as to
the fact that the President had departed from the terms of
the understanding, my colleagues were not, at that stage,
disposed to join me in pointing out to the President that
he had not kept to the terms of the compact. They said
they preferred to wait until the session of the Volksraad
had terminated before taking any steps. To this view I
could not agree, for the simple reason that I deemed it my
duty to point out to the President in what respects he had
departed from the terms of the understanding, for if I had
waited until the session, which would probably lasi till
October (as a matter of fact it continued until the- 1 7th of
November, 1897), had terminated and then approached the
President, he might very naturally have blamed me for not
having apprised him of the state of the case, and allow-
ing a whule session to pass without pointing out to him
that he had not kept to the compact. His Honour would
very probably have expressed his regret, and added that
he was very sorry that I had not approached him sooner,
and that nothing could now be done until the following
May session of 1898, and so a whole year would have been
lost. To have observed silence at that moment seemed to
me equivalent to saying that the Judges had intended to
mislead the public when :hey entered into the understanding
of March 1897, by allowing Mr. Kruger to do exactly as
he pleased. I therefore deemed it my duty to speak. As
22
we all read and uuderetood the terms of the understanding,
which T maintain created a mutual oblio^ation solemnly
entered into, and to be carried out by the President as
speedily as possible, I could not honourably be a party to
any departure from its terms. Accordingly, on the 8th of
July, 1897, I, as Chief Justice, addressed a letter to the
President pointing out how in my opinion he had departed
from his undertaking, I received a reply from the State
Secretary, on behalf of the President, to the effect that His
Honour did not share my views, although he admitted that
a revision of the Grondwet need not necessarily wait for
the codification, or rather the bringing into a S3'stematic
whole, of the laws of the country. In answer to this reply
I wrote to say that I adhered to the views expressed in my
letter of 8th July.
Here I must state that during the month of July and
after my letter of 8th July had been received by the Presi-
dent, the Volksraad Commission by letter asked me, as
Chief Justice, to nominate one or more of the Judges to
attend and assist the commission in its labours with regard
to revising the Grondwet. There was great diversity of
opinion among the Judges on this point, whereupon I in-
vited each of my colleagues to give me his views in writing.
Judges Morice, Gregorowski, and Esse/ were agreeable to
the request of the commission. Judge Ameshoff, however
much he was disposed to help the commission, regretted
that it was at present not open to him to do so, in that the
President had not set to work in a manner which he (the
Judge), regard being had to the understanding, had ex-
pected. Judge Jorissen preferred to have a complete draft
Grondwet submitted to him before he would be in a posi-
tion to give any advice. As far as I was concerned I took
my stand entirely upon the written understanding of March,
and regretted that for this reason and thi^ fact that certain
legal gentlemen, jointly responsible for the drafting and
passing of Law No. 1, 1897, had been added to the com-
mission as advisory members, I could not personally
attend the commission. This latter reason was also
given by Mr. Justice Ameshoff. I, however, added that
I was prepared to give the commission the benefit
of any advice they might require on any points in wiit-
ing. I adopted this course for the following reasons :
I could nut act inconsistently and depart, by my presence
on the comuli^^sion, from the terms of the written under-
23
standing, and secondly, I had to avoid laying myself open
to the charge that I had declined to help in, whatever the
circumstances might be, bringing about a possible good
work. My advice was not sought by the commission during
its sittings in 1897. On the 12th November, however, the
chairman of the commission wrote to me and reufretted that
the commission had not been able to present a report, and
informing me that the commission hoped to resume its
labours in the following February session of 1 898, I was
also desired to favoar the commission with the views of the
Judges in writing with regard to the necessary provisions
to be inserted in the Grondwet concerning the Judiciary.
After the session of the Yolksraad had closed on the 17th
November, I spoke to my colleagues Ameshoff and Jorissen
on the subject of nothing further having bteu done during
the long session from 3rd May to 17th November. Mean-
while Judge Morice had sailed for England, and Mr.
Gregorowski had left the Bench and become State Attorney.
Judges Ameshoff and Jorissen were, ho\?ever, not disposed
to move in the matter, I therefore on the 15th December
wrote the President the following letter :
" Your Honour, — Regard being had to the agreement
arrived at between you, as Head of the State, and
the Judges in March last, and to my letters of July
8, and September 10, 1897, addressed to Your
Honour, I now have the honour to call your attention
to the fact that the session of the Honourable the
First Yolksraad has come to a close without, in terms
of the said understanding, any draft measure having
been submitted to the First Yolksraad for its pre-
limiuary approval, pending the further confirmation
thereof by the people. I will be much obliged to
Your Honour to be informed of the reasons for de-
parting from the understanding concerning a draft
Grondwet, and what Your Honour now proposes to
do m order to return to the course originally in-
dicated."
To this letter, written by me in my capacity of Chief
Justice, no reply whatever was sent by, or on behalf of, the
Head of the State. I, therefore, felt myself compelled and
in honour bound to take some definite step, and on the otli
February, 1896, I wrote to the President stating that I did
so in continuance of my letters of 8th July and loth Dec,
24
1897, and pointed out that, although I had patiently
awaited the performance of the understanding-, no draft
Groudwet had, in terms of the understanding, been sub-
mitted to the First Volksraad during its session from 3rd
May to 17th November, 1897, nor had any steps been taken
for removing the measure, which bears the name of Law
No. I, 1897. I also added that as long as this does not
take place the existing legal uncertainty remains, and the
violation of the independence of the Judiciary continues.
I further deemed it my duty again to remind the President
th?t the uiiderstandiug come to in March, 1897, with the
Judges was of a reciprocal nature, and binding upon both
pai'ties, and that the only protection which I, as Judge,
possessed, and the only honourable and constitutional course
which I could adopt, was to consider the understanding of
March last as having lapsed and no longer existing. I
also wrote to the Chairman of the Volksraad Commission
in answer to his letter of 12th November, stating that now
that my vacation was over, and the commission h^jped to
resume its labours during the session commencing on 14th
February, 1898, I must point out that the position had
become changed since July, 1897, when the Chairman tirst
approached me, in that the written understanding of March,
1897, between the President and Judges had, in my opinion,
.ceased to exist. I, however, intimated that I was at all
times personally prepared to give a commission of the
Volksraad, where such was possible, my advice in writing,
and I enclosed a short outline of the provisions which, in
my view, a Grondwet should contain so far as the Judiciary
is concerned.
I have somevvhat digressed, perhaps, in introducing
the relations which existed between myself and this Volks-
raad Commission. I have, however, done so in order that
there should be no misunderstanding of the correct posi-
tion. The commission I could not, and did not, recognise
.as having been appointed under and in terms of the written
understanding of March, 1897, upon which alone I have
taken my stand, and by which alone I considered myself
bound. In my attitude in this respect, and towards the
President, [ may frankly state that I have been perfectly
logical and consistent throughout.
To my letter of 5th February, I on the 16th February
last, received an answer stating that the written under-
standing come to with the Judges in March, 1897, was
25
absolute and irrevocable so far as the Judges are concerned,
and not conditional so far as the President is concerned ;
thxt the President considered my letter to hiui as a virtual
refusal to answer, or as an insufficient answer to the ques-
tion which he had put me on the 4th March, 1897, and he
therefore regretted that he was compelled to give me a
dismissal from my office of Chief Justice, to take immediate
eiiect. At the same time I may add, Mr. GregoroAvski had
been instantly sworn in as Acting Chief Justice. On the
same day (16th February), I acknowledged the receipt of
this last letter from the President, and pointed out that
the President was in error when he states that the Judges
were absolutely bound and that the understanding was not
conditional upon his undertaking from his side to do certain
acts. I also pointed out and insisted that the measure
under which the President had acted, the so-called Law No.
1 of 1897, was illegal and unconstitutional; that my ap-
pointment was for life and that I could only be dismissed
from office after a proper charge framed, and trial by a
proper Court. Until this happens, 1 am and remain Chief
Justice The President's reply to this is that he abides by
what be has done.
Vl. Such is a concise and correct account of the pro-
ceedings, which have led up to the perpetration of un-
doubtedly the most illegal and despotic act which the Head
of the Republic — a civilized and Christian State — can pos-
sibly commit. After more than twenty years of unremitting
and faithful service, and in spite of my appointment for
life, and of the law which declares that a Judge can only
be dismissed after due trial by a properly constituted Court,
the high-handed and violent act of summarily dismissing
me from my office as Chief Justice, and casting me adrift,
is attempted and carried out. You, the inhabitants of the
Republic, among whom I have laboured, have now the facta
before you, and I appeal to you for justice. Why have I
been thus dismissed ? What has been my offence ? I ask
you, are the Laws and Constitution to be thus shamefully
violated in order that under cover of an illegal measure a
Judge, the Head of the Bench, may be attacked and
punished because he had the courage and the conscience to
to do his duty ? Is this scandalous attack upon the inde-
pendence of the High Court, in total disregard of Laws and
Constitution, which safeguard it, to go unnoticed, uncon-
demned, and unpunished ? Are we men or slaves in the
26
land ? Because I have respected and sniight to maintain
the Constitution which the founders of the State have
framed, and the people have created, and which lavs down
as essential requisites of its very existence the fundamental
doctrines —
" The Republic desires itself to be considered by the
world as a free and independent people" (Art. 3),
" All those, who tind themselves within the territory of
the Republic, have equal claim for the protection of
their persons and rights " (Art. 6),
" The people claim the greatest possible social freedom,
and expect this from the observance of their reli-
gion, the performance of their obligations, and their
adherence to law, order, and justice, aad the main-
tenance of the same" (Art. 8),
— because (I say) I have attempted to respect and enforce
tjiese and other principles of our Constitution, and have
done so in the discharge of my sacred functions, and in
protection of those who seek naught but justice, am I to
be dismissed and puiiished without trial ?
We live in what the Constitution declares to be a free
Republic, and we have come to a most critical point in its
history. It is now for you to say whether you wish it to
be a Constitutionally-governed country or subjected to an
autocrat's will, with the more than probable danger that a
factious majority, it may he of but one vote in the Legis-
lature, persuaded thereto by a despotic President, can by
means of a simple Volksraad resolution do with your rights
and liberties, your investments and capital, whatever it
pleases. With the loss of its independence, the Court be-
comes powerless to protect the citizens, whose rights have
been invaded, for unless the Court can enforce the Consti-
tution, as being of higher and superior sanction, and so
protect the rights of the minority, there will speedily be
an end to liberty and justice. It is not the first time that
I have been called upon to raise a warning voice, and I
repeat here what I have unfortunately before now had
occasion to say : " The independence of the High Court is
inseparably connected with the independence of the Re-
public." Remember that the guarantees provided by the
Constitution and the ordinary law for the independence of
the Judiciary have been introduced not merely for the pro-
tection of the members of the Bench, but also for the pro-
27
tection of every man, woman, and child in the country.
By applying, in the exercise of my judicial functions, the
testintr right; in other* words, by declaring that the Consti-
tution must be respected, and that laws and resolutions in
conflict therewith can not be enforced in the particular case
befure the Court, I have simply respected and protected
your rights and liberties. This was displeasing to the head
of the State, for it prevents him exercisiug his autocratic
will, and compels him to conform to the terms of the Con-
stitution. By the recent violation of the Constitution your
rights as well as mine have been invaded. I, therefore,
call upon you to aid and support me by all just and con-
stitutional means in your power, in order to remedy the
great evil that has befallen the country. Principles
not men, a Constitution broad based upon a people's
will and not tyranny, is what I have sought to honour
and maintain. I call upon you to insist with me upon
justice being done iu my case ; to insist upon my being
put upon my trial by a coinpetent and independent tribunal;
to insist upon the immediate repeal of the so-called Law No.
1 of 1897, which is a blot in the histor}- of the land; to
insist upon the immediate amendment of the Grondwet, so
that both the Constitution and Judiciary shall be protected
against all sudden surprises and assaults. 1 have no hesi-
tation in saying that unless these matters are speedily
attended to and carried out, the gravest evils are bound to
ensue. In striking a blow at the independence of the High
Court, a blow has likewise been struck at the credit and
stability of the State. I would be wanting in my duty if
I did not raise my voice and point this out. It is for you
now to say and decide whether you will stand by me and
support me in the present crisis, and whether justice shall
be maintained and prevail.
I am.
Your obedient Servant,
J. (t. KOTZE,
Chief Justice.
APPENDIX.
['Iransvaal Auvkktiskr, lotli Manli, 1S97.\
While theic is yet time, we should fail in our duty to the peojjle of
this Repuhlif if we did not urge ujion the (Toveinnient tlie ])i'opriety and
wisdom of re-eonsideiing the vitally iinijortant suhjeet of the position
assumed towards tlie .ludges of the High Court. Etiorts liave been un-
ceasingly made for some time jjast to oljsoure the issues in the case, and to
impress upon the ignorant and easilj-led burghers of this Reinil)lic that it
was necessary to restrain the Judges of the High Court in the jjerformance
of those duties wh ch are imposed upon them by virtue of their otKce.
Under an circumstances, the time has arrived wlien it is necessary, once
for all, to answer the misleading statements which have been put forth in
defence of the action of the (Jovernment, notably by tlie J'olksstnii, the
Prexa, the Stuiiddrd and Dinners'' AVfrx here, and Oiin Lund in the Cape
Colony. The oliject of the (Tovernn\ent organs lias been to obsciu'e the
nature of tlie attack upon the Hi'.'h Court b^' the adoptif)n of tactics which
every right-minded man must know are meant to cover the misdeeds of
the (Jovernment and Legislature. The Chief .Justice has been assailed
upon the matter of the " Brown "' judgment, both as to its legal sound-
ness and to the time and circumstances under which it was ]jr(mounced.
It has been made to a])i)ear thai it ^\■as delivered for a personal and politi-
cal purpose, and under tliat guise the important constitutional questions
raised by it have been discreetly kept in the background. It is not neces-
sary to refute this attempt to lower the status of the Chief .Justice and
his colleagues, as it is abundantly clear that if they had acted in the mode
allesied, they would have done their liest to defeat their own ends. It is
not our purpose, liowever, to call attention to side issues in this important
matter, but to state as simply and clearly as we can the facts of the case
and their l>earing upon the future of tlie Repul)lic. In the " Brown "
judgment the Court laid down the principle of its right to test laws made
by the Volksraad l)y a reference to the written Constitution of the coun-
try. The le^al adviseis of the President, Messrs. Coster and Leyds, doubt-
less, finding that tlie establisliment of such a principle wf)uld go far to
make the position assured by the President and his oliedient Legislature
untenable, probably forced upon His Honour the necessity for direct legis-
lation upon the matter. The Law No. 1, 1897, was consequently brought
in, discussed in secret session, and passed through the Volksraad in the
shortest possible time, ^iz., three days. That this action of tiie Covern-
ment and the Legislature was ill-advised and dan^.erous to the people of
this Republic, is shown by the universal condemnation which it has met,
not onlj- by the independent Press of South Africa, Ijut also of Europe,
both France and (iermany having joined in the denunciation of the object
of the so-called law.
It cannot too often be impressed upon the public that for the present
the soundness or unsoundness of the "Brown" judgment has nothing to
do with the present position of affairs. As a civilise<l nation, and. as is
boasted, an independent State, the Transvaal is bound to respect the judg-
ment of its own High Court. Should it be considered by the (Jovernment
or the Legislature that the law or Constitution, as expounded and inter-
preted by its own High Court in any particular case, are found detrimental
to the interests of the State, the}- are within their right, the one to pro-
pose and the otiier to adopt measures in a legal and constitutional method,
for bringing about a change either in the law or the Constitution. Instead,
however, of adoptin<j this safe course, one in which the Judges would
probabh' have been willing, as well as competent, to give the benefit of
their advice, a drastic measure was secretly drafted, considered, and sud-
denly' placed before the Volksraad, and ruslied through its stages in the
shortest space of time. The plea of urgency was alleged in explanation of
this precipitate action, as, according to the President, the newly proposed
law could not brook an hour's delay. Under this guise of necessity a fatal
step has been taken which has aggravated the evil, and, beyond (question,
has endangered the rights, liberties, and lives of every inhabitant in this
State. This was done while there was j-et time to recede, and against the
solemn and unanimous advice and warnings of the Judges that there exists
at present no I'eal danger and no necessity for taking immediate steps.
The wise counsels of the Judges against hasty legislation, and their assur-
ance that the matter could be calmly and satisfactorily settled in the en-
suing May session of the Volksraad were ignored, and the letter of the
five Judges was not even officially placed before the Volksraad, as they
had requested. Just as the Volksraad was rushed, a similar attempt was
made to rush the Judges, who wisely refused to be a party to hasty legis-
lation, which had for its aim the complete removal of the stability and
independence of the Judiciary. It is this very measure, proposed by the
President and his advisers, and sanctioned by the Volksraad, that forms
the real ground for all the uncertainty and anxiety which at present exist.
It is this fatal stejj, and not the " Brown " judi,'nient, which has agitated
men"s minds to their very depths, and both in and out of South Africa has
shaken confidence in the Transvaal as a civilised State. It is not ditticult
to account for this state of things. Under the plea of necessity, and under
the plea of uncertainty, which has been used as a kind of Government
scarecrow, a state of chaos and confusion has been created. Instead of
calmly and ■with dignitj- setting to work to remove what might be consi-
dered objectionable in a legal and constitutional way, a measure is adojited
which virtually amounts to an attack both on the Judges individually and
on the independence of their high office. The Volksraad, contrary to the
Constitution or Grondwet, practically changes itself into a Supreme Court
of Appeal, and declares that the Judges in the " Brown " judgment — a
judgment which by the law and Constitution of the land is final, and from
which there is no appeal— have wrongly declared the law. Here the
Volksraad clearly went beyond its own province and po\\'ers. It may just
as logically i-everse the "Brown" judgment. It is ]jerfectly clear that until
the (4rondwet has been duly amended, the interpretation of the Grondwet
by the High Court must be accepted bj' every person and every depart-
ment of State in the countrj-. The Volksraad may, in the exercise of its
legislative functions, interpret the Constitution for itself, but it cannot
interpret the Constitution so as to bind the Court. It is the exclusive
right and duty of the High Court to interpret the Grondwet or Constitu-
tion for itself whenever, in any given case before it, it becomes necessary
so to do. Again, the new measure — we cannot consider it law —is a
distinct breach and violation of the numerous laws which guarantee
to the members of the Bench their office for life. It is also a dis-
tinct breach and violation of the law which safeguards the Judges
against any interference on the part of the Executive or Legislature,
and which provides that the dismissal of a Judge can only take
place after a proper charge brought before, and duly investigated
by, a specially-constituted tribunal, and after its verdict of guilty,
and none other. All these constitutional and necessary guarantees
have been ]>lown to the winds, ami all these safeguards have been ruth-
lessly desti-oyed. It is, therefore, notliing })ut natural that men should
in
fear and tremble, and ask tlieiiiselves tlie ijne-stion — What next? The
speotHclc of iiide[)endci!t dudgcs being siinnnafily disniis.sed at tl.e dicta-
tion i>i tiie I're.sident, in violation of their appointment for life, and cast
adrift, converts the Ilepublic into an uncivilised and barbarous country.
It is an act of injustice and unrighteousness which might be expectetl from
a despot, but whicli will inevital>ly bring a))propriate punishment upon a
couTitry which boasts of its civilisation and Christianity. It is this which
has made the capitalist more than uneasy about his investments in pro-
perties of all descriptions It is this that has created distrust in the mind
of the poor and industrifius man who lias invested his modest savings in
some form or otiier in the country, and who no longer feels safe as to the
security of sucli investment. The argument advanced by one of our local
contemporaries, that the recent action of the(4overnment and Volksraad is
to be justified because many rights on the goldtields are secured by mere
bc'ulititeii, or resolutions of the Volksraad, is thus seen to be a hollow sham.
Men naturally enquire — when the independent and liii.hest .Judges of the
land are treated in this sunniiary, illegal, and drastic manner V}y the
simple Ijrushing away of the laws which guarantee their position for life,
and protect tiiem against improper interference and dismissal — of what
account are we and our belongings— we who are simple burghers or un-
enfranchised inhabitants of the lc\nd '! It is a mockery to tell us that, in
order to secure our rights, the rights of the Judges of the land, clearly
and solemnly guaranteed, nmst be swept away — rights and Kuarantees,
moreover, established quite as much f<u' the protection of the public and
the gold industry as for the .Judges themselves. Tlie public have a right
to insist on the dignified, impartial, and independent administratiim of
justice. To deprive the people of this rigiit is a paljiable invasion of their
liberties. It is a natural inference that what has hapj)ened to the Judges
to-day ma}' ha])pen to the burgher to-morrow. This is the real insiw and
the true position of the ([uestion. It is that which has created the terrible
tension. It is tliat whicli ma es men marvel at the astoundingly danger-
ous feats performed recently by President Kruger. It is not to be for-
gotteti that he has boasted frecjuenth" of late that the principles of the
Republic and of himself were that " Right is might," and not the con-
verse, " Might is right."
We nuiy ju.st refer to a statement which has been much made of by
the apologists for the Government, vi/,., that the honoured Chief .Justice
of the Cape Colony " is heartily at one " with the attitude adopted by the
President and his legal advisers with regard to tlie Judges. It is scarcely
probable tiiat so eminent and experienced a jurist would give such an
opinion, and we prefer to wait until C'iiief Justice De V'illiers himself
autiiorises such a declaration. In the meantime we must protest against
the attempt to identify tiiat gentlemen with the sentiments of Messrs.
Coster and Leyds in the development of tiiis miserable and fatal business.
The (Jovernment have sown the wind, and of a certainty will rea]) the
whirlwind, and no man possessing a sense of responsibility can dare ap-
prove of tiie attack made upon the independence of the .[udges in the
exercise of their judicial functifms. A measure which reduces tlie Jiulges
to the level of mere servants of the President, who shall have the right at
any time to interpellate them on pain of instant dismissal, even when a
case may be pending against the (iovernment, endangers the liberty of tlie
citizen and the State. This, we repeat, is the issue, and it behoves all
men who have interests in this country, or wish well to the Fiepublic, to
avoid Ijeing led away by the shallow defences made bj' the apologists of
the Government for an attack upon the sacred liberties of the people.
Pretoria, Tr.\nsv.\al.
Chief Justice Kotze's Reply to
Mr. Kruger's Assertions.
See my nuts at eod of Ibis memo.
(Sigoed) Pacl M&fie,
MEMORANDUM.
SatQrday, 7th September, 1895.
Thia ftfternooD. at 5 o'clock, I bad, to.
gether with MesBiB. P. W. T. Bell, E, F.
Boaike, and Dr. Eageleobarg (membera of
tbeo left the i
before the Cou
t. Now. bow can t
fattppen, lor the
l&tv saye a Volkeraad
eolutioD is law.
od if 1 have pabliahec
tbeo evoryune
muet respect it as 1
What IS now yo
r view ou iheaubjeot?
Chief Justice
I do not kDow uoytb
of the particQlu
a of the uaae, aod of n
hastakeo place
ou the grouud, nilh re|^
to tbe lottery or
eubsequently, I can in
Preeideot
Y
a, I
know.
speuk to you
ab
ut
t; QOt
for possibly
ray
nU
rmatio
Volkarald^*^
What
haa ba
lottery, aud
ion
th
people
io nambers
aod
rushed ea
stated JD tbe Ueaa <
obanged your opiuiun c:
of Dome, and that the
by a resoluiiou of tb
oan this be? Tbe lai
. yoD bad
of brolberbood, i
difficalty, rebellion n
I bad altered tbe opiaion
;d by me id tbe MoOoikindala oaee
e people. The Court must ioquire
indii^tiDctly. Uonr aaa yoa eay so?
Vqlksraad is the bigheat autboiity,
Qveryoae mast respeot the reHolutioD!
,he Volk
lot
3 told r
would reject tbe resolation, aod I de-
feoded tbe Court, and eaid tbe Judges
would act according lo tbe law and do
yon see. I always Bland np for my Judgea,
you (i.e., ibe Judaea) reject
the
of
^olkar
I fe>r fur (be cc
then be obliged to
Justice smiling ) Y
surely happen, aud
danger to the Stale.
people
iiief Jni
e VolksrnHd and Coc
theo^oBeqoences resultin-; therefrom, an
I do not tear it. Tbe Court never ao
hurriedly or praoipitjilely. The Court wi
and other laws. Why should thia cau'
discord? The people are too Bsnaible f(
Freaidei
liud
eolotion of the Volkaraad. Yoa c
thing else, for you, too, atand under your
oatbs, la, tbeu, a resolution of the Yolks-
raad, the bigheat authority, not binding oo
Chief Justice: loan s&y oo mora than
that a luw properly paiead, and a reeola-
tion lakeu uacordiuK to law, may be o(
Preaideut: But how muat I now under-
3B0lUI
fori
ep«o(ed? Geriaioly not.
President : But in thnt event 1 would no
pobliab such u law or resolution.
Chief Justice: Yea, but suppose that
after all yoa do publish tl? Or, suppoaa
tbe Yolkeraad, without aoy emjairy, takes
a summary resolution to diamisa you from
Ptesid
: No,
not what I mean. I merely want the
Court to reoogoiae and respect a reaolation
Tbe reaoloiion of which I am speaking is
also as the First Volkaraad wishaa to have
it. Look, there can be no doubt, and yoa
tbe resolutiou and obeying the voice of the
Volksrand, which ia tbe bigheit power.
Chief Justice: I cau not say anything
else than tbst the Judges will act oaretally
according to tbe laws of the land. The
Judges dare not do anything else.
President (rising) : Now. yes. I trust
you will think well over what we have here
beeo talking about privately with each
This
Preaideot laated from aboui eight to ten
(Signed) J. G. Kotze.
This memorandura was shown me iu
September, 1695, by Obiet Justice Kotz6-
nben [was obairmao of tbe Qrondnet Re-
vision Commission of the First VolkataBd,
whereupon I also read the same.
(Signed] Paul M&rb.
Certified a trae copy of the original ao
read und compared by me.
(Signed) Fiten. J. Loxnon,
Notary Pnblio.
The Judicial Question.
CHIEF JUSTICE KOTZE'S APPEAL.
TO THE PEOPLE.
FAILING REDRESS.
TO BRITISH GOVERNMENT.
With 1
othoo
1 Satu
brfore
t Mr. Cham-
ouae of Com-
' the Dritish
inorlerclled
Government, an Adverd
upon Hia Honour for the pnrpoae of glean-
Getting lo the point at onoe, the 'Titer
man pat tbe question, "Did yon or did yoo
not aend saoh a statement. Chief? "
Hia Honour at once and without heaita-
• I ha>
iao of I
Her Maj
repies
Go-
I
for redroBs.
Tbey ha
e
ntrus
ed tbe
Judiciary witi
the admi
iat
alion
of JUB-
lice, as stated
n the Gro»
Imust.
therefore, lay
my ca^n b
(or
e them, as ia
being done by a writt
n
pjiea
lo tbe
S'.'' Tl 1
ubliah^d in
c'ln
fJiii
of thia
« until
I'ZtllT.
and found
bu
y by
al.
an inde-
in the aenae
of right
f
le pp
ople for
redreea. Shon
d I f«il
n t
his m
appeal
to the people.
will be bo
in th
t event,
to proaeoule my rights
n
ther
iiartera
and to appeal t
Her Maje
ty->
Ooier
nment.
"It depeoda
therefore
the
voice of
the people io t
|]0 first ins
anc
hall not
ait still under
be grievon
«
rong
one ma
V