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