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THE INFLUENCE OF AN ENGLISH BACKGROUND ON FOUR JUDGES APPOINTED TO THE SUPREME COURTS OF THE TRANSVAAL AND ORANGE RIVER COLONY 1902-1910
by
STEPHEND. GIRVIN(Nottingham)
Introduction
In this paper I shall evaluate the legal background and judicial careers of four judges appointed to the bench of the Transvaal and the Orange River Colony in the period 1902 to 1910 - the period after the South African War but prior to the Union of South Africa in 19101. In both colonies legislation ensured the retention of Roman-Dutch law as the common law; thus the Administration of Justice Proclamation, 1902, of the Transvaal2 provided in § 17 that 'the Roman- Dutch law except in so far as it is modified by legislative enactments shall be the law of this Colony' while § 1 of the Laws Settlement and Interpretation Ordinance, 1902, of the Orange River Colony3 laid down that 'the Roman- Dutch law shall be the common law of the Colony in so far as it has been in- troduced into, and is applicable to South Africa'. Much Cape legislation was received, especially in areas such as bills of exchange and succession; also import- ed was the Cape General Law Amendment Ordinance of 18794 which abolished the doctrine of laesio enormis and imported the English law as to fire, life and marine insurance, stoppage in transitu and bills of lading 5 The practice in British colonies both in Southern Africa and in other parts of the Empire was to appoint English-trained lawyers to judicial positions. This was the case in the Cape Colony6, following the First Charter of Justice in 1827, and also in Natah for most of the nineteenth century. Judges appointed to the bench in the two Boer Republics often came from an indigenous background with school education at the Cape and then at London University followed by call at one of the Inns of Court in London. It was rare for a judge to be a graduate of
1. The standard work on this period is still H.R. Hahlo and E. Kahn, The Union of South Africa, London 1960.See however also A.A. Roberts, A South African LegalBiblio- graphy, Pretoria 1942, especiallyat p. 347-384. 2. Proclamation No. 14 of 1902. 3. Ordinance No. 3 of 1902. 4. Act No. 8 of 1879. 5. See B. Beinart, The English legal contribution in South Africa: the interaction of civil and common law, Acta Juridica, 1981, p. 7-63. 6. See S.D. Girvin, The Establishment of the Supreme Court of the Cape of Good Hope and its History under the Chief Justiceship of Sir John Wylde,South African Law Journal 109(1992) p. 291-306, 652-665; ThreeIrish-born judges at the Cape 1861-1896, The Irish Jurist 24 (1993)p. 99-112. 7. See P.R. Spiller, A History of the District and Supreme Courts of Natal 1846-1910, Durban 1986. 146 a Dutch university'. Thus when a High Court was established in the Orange Free State in 18729, the first three judges (Francis Reitz, James Buchanan and Melius de Villiers) were all educated at the South African College in Cape Town. Reitz was called to the bar by the Inner Temple whilst both Buchanan and De Villiers were admitted to practice as advocates at the Cape barl°. In the South African Republic a High Court of Justice was established by a Proclamation of 187711 and John Gilbert Kotze was appointed as the judge and later Chief Justice. He was a London University graduate and was called to the bar by the Inner Templel2. After the retrocession in 1881, Kotze was joined on the bench by Christoffel Brand, Petrus Burgers and Jacobus de Wet. All three judges had been called to the bar by the Inner Temple. Brand was educated at the South African College, Cape Town, Burgers was an LL.D. of Leiden and de Wet was a London University graduate 13 Following the conclusion of the South African War and the annexation of the former Republics to Britain, further English appointments were made to the bench. In this paper I consider the role and influence of William Smith and Leonard Bristowe in the Transvaal and Daniel Ward and Archibald Fawkes in the Orange River Colony. These judges are distinguishable from their colleagues because they were born in England (or Ireland in the case of Ward) and practised at the English bar followed by service in one of the colonies. They were the product of colonial service, unlike the South African born judges previously or subsequently appointed.
William James Smithl4
Smith was the younger son of John O'Connor Smith, a stockbroker of Syca- more Hill House, Birmingham, and was born in Cheltenham in 1853. He received his early education there and at Taunton School and then entered Trinity Hall,
8. But cf. Herman Arnold Ameshoff (judge of the Transvaal from 1889-1898), Samuel Gerhard Jorissen (judge of the Transvaal from 1886-1889) and Jules Anne Schagen Van Leeuwen(judge of the Transvaal 1898-1900). 9. Ordinance 4, 1872. 10. See Roberts (1942)p. 373, 351and 357. De Villierswas appointed to the chair of Roman-Dutch law at Leiden in 1905. 11. The South African Republicwas annexed by Britain between 1877and 1881.See M. Nathan The Republican Bench and Bar, South African Law Times 1 (1932),p. 13ff. 12. Roberts (1942),p. 367. Seehis autobiographicalstudy, Biographicalmemoirs and reminiscences,Cape Town 1949. 13. Roberts (1942),p. 350, 352, 358. 14. Sources: J. Foster, Men-at-the-Bar, London 1885, p. 436; The Law List, 1876, p. 171; 1879,p. 183, 236;1880, p. 189; 1881,p. 191; 1882,p. 195;Lincoln's Inn Admission Book, Vol. 26, p. 67; W.H. Mercer & A.E. Collins (ed.), Colonial Office List, London 1905,p. 576f; Roberts (1942),p. 376; E. Rosenthal, South African Dictionary of National Biography, London 1966,p. 350; R. Roxburgh(ed.), TheRecords of the Honourable Soci- ety of Lincoln's Inn: The Black Books, Vol. 5, London 1968, p. 415; W.A. Shaw, The Knights of England, London 1906,Vol. 2, p. 397; J. & J.A. Venn, Alumni Cantabrigienses 1752-1900, Cambridge 1940,p. 574; Who was who 1897-1915, p. 486; The Law Times 134 (1912),p. 99; Sir WilliamSmith Kt., South African Law Journal, 28 (1911),p. 465; The late Sir WilliamSmith, South African Law Journal 29 (1912),p. 368; The Times 155 November 1912; 18 November 1912; 21 November 1912.