Fathers and their Children on our Bench MD Southwood se Pietermaritzburg Bar

he had no judicial ambitions. In Since 1910, seventy-five judges The De Wets 1924, although he once again might have been appointed to the Appel­ NJ: Diginified and good humoured have had high judicial office, he late Division. Of these, eight have preferred to return to practise at the MrJustice NicolaasJ acobus de Wet had the distinction ofhaving a child Pretoria Bar where he was leader was born to his farmer father at appointed to our Bench. They are, until appointed to the Transvaal Mooifontein, Aliwal North, in 1873. in the order of their appointments, Bench in 1932. In 1937 he was He matriculated at the Aliwal North Curlewis, De Wet, W atermeyer, appointed to the Appellate Divisi?n Public School in 1898 then going on Van den Heever, Hoexter, Fagan, and in 1939 he was made ChIef to take a BA degree at Stellenbosch Williamson and GalgutJJA. In the Justice and became a member ofthe University in 1893 and an LLB first article on 'Fathers and their Privy Council. In 1942 he acted as degree at the University of Cam­ children on our Bench' (1988 2( 1) Officer Administering the Govern­ bridge in 1895, where he won the Consultus 21) the Curlewis, Van den ment when Sir Patrick Duncan was Chancellor's Gold Medal. He was Heever and Hoexter families ill, refusing the position ofGovernor­ admitted as an advocate, first in the appeared. In this article, the De Cape and then in the Transvaal, in General. He retired from the Bench Wet, Watermeyer and Fagan fami­ in 1944 but continued as Officer 1896 and practised in the Transvaal lies are covered. until the outbreak of war, when he Administering the Government for a short while and died in 1960. As an joined General De la Rey's staff act­ piloted much consolidating legis­ ing, from 1898, as ChiefCensor an? advocate he was said to have been lation through Parliament, including exceptionally quick to grasp the Acting Assistant State Attorney untIl the 1916 Insolvency Act. When Lord the British occupied Pretoria. He was essential questions on which a case De Villiers died in 1914, he offered turned. Jacob de Villiers JA said of present at the abortive Kitchenerl the Chief Justiceship to Sir James him 'De Wet's appearance in an Botha peace negotiations at Middel­ Rose Innes when he might have appeal in our Court is like a brea~h burg in 1901. He was appointed a claimed it himself, telling SirJ ames of fresh air'. As a judge he was saId Judge in the High Court and lat~r to have been dignified and good became Military Secretary to LoUIS humoured both in and out of Court Botha. Amongst his other duties, he and to bring a sound knowledge of acted as interpreter between the Boer Roman-Dutch legal principles, a delegates and the British delegates in wide experience of affairs and a the negotiations which led to the robust approach to bear on the Treaty ofVereeniging in 1902. After problems before him, giving short the war he resumed practice and was and to the pointjudgments. A fellow elected a member of the 'Hoofd Appeal Judge described him as Comitee' of Het Volk. From 1907 to straightforward, candid, unpreten­ 1910 he represented Middelburg tious and loyal to his friends. He was West in the first Transvaal Parlia­ an enthusiastic golfer, a keen bridge ment. At the National Convention in player and adept at all forms of 1909 he was Legal Adviser to the 'patience'. During his period as Transvaal delegates. He took silk in Minister ofJustice, he tried to reduce 1912. In 1913 General Botha asked liquor trapping to a minimum. He him to become Minister of Justice was Chairman of the Board of which he reluctantly did and, both Trustees ofthe Kruger National Park sides recognised, very competently Mr Justice NJ de Wet for many years. 28 CONSULTUS APRIL 1990 Mr Justice EF Watermeyer Mr Justice HEP Watermeyer

Quartus: Short judgments in 1903. At school in England, apart Ernest Peter Watermeyer was born His son, MrJustice Quartus de Wet, from being academically outstand­ at Wynberg in 1911. He was edu­ was born at Pretoria in 1899. He ing, he was an outstanding all round cated at Rondebosch Boys' High matriculated at Pretoria Boys' High athlete, excelling in rowing (being School, at Diocesan College Ronde­ School and attended the Transvaal captain of the rowing team) cricket bosch, and at Gonville and Caius University College and Cape Town (being captain of the cricket team), College, Cambridge. There he took University to obtain his BA and LLB rugby and fives and being a fast a BA degree and passed the Law degrees. He was admitted as an advo­ quarter-miler. One of his school­ Tripos. He was admitted to the Bar cate in 1922 and practised at the fellows at Bath College later said that as a member ofthe Inner Temple. He Pretoria Bar. He took silk in 1945. he had'extreme fairness ofmind' as was admitted to the South African His letters patent were signed by his senior prefect, in which capacity he Bar at Cape Town in 1934, practised father, then Officer Administering would listen to both sides, make a in Cape Town, then served with the the Government. He acted as Presi­ decision and then be unworried by South African Artillery with the Sixth dent ofthe Pension Appeals Tribunal any criticism. He admitted that early Division in Italy in 1940 - 1945. He and was appointed to the Transvaal in his university career he did not took silk in 1950 and was appointed Bench in 1950, becomingtheJudge­ work very hard. He did, however, to the Bench in the Eastern District President in 1961. He retired in 1969 travel extensively in Europe and pur­ Local Division and transferred to the and died in an old age home in 1980. sued his rowing with vigour. During Cape Provincial Division in 1955. He During 1964, despite having received the Boer War, while NJ de Wet was becameJ udge-President in 1979 and threatening letters before the trial, working for the Boers in Pretoria, he retired in 1981. He was South Afri­ and having a bomb plot against him volunteered for service in the Cam­ can amateur golfchampion in 1940, unearthed during it, he tried and sen­ bridge University Volunteer Regi­ Western Province amateur golf tenced Nelson Mandela and his co­ ment and became a Captain. After champion in 1946 and 1949 and accused in the Rivonia Trial. As a nine years away he returned to South served on the Executive ofthe South judge he was practical with a com­ Africa and was admitted to the Cape African Golf Union for twenty-five mon sense approach. Consequently Bar in 1904, where he eked out a liv­ years until 1965. He is said never to he did not waste words but gave short ing in those hard times. In 1920, as have become excited in Court as a and to the point judgments that a stuffgownsman, he acted as a judge. He presided with a dry sense weathered well. He was a keen golfer Judge, and was appointed chairman ofhumour over a calm and efficient and bowler and according to counsel of the Special Income Tax Court court and was popular with the Cape who accompanied him on circuit, a where his mathematics stood him in Bar. His approach was to let the competitive, cautious and competent good stead. In 1921 he took silk. In answer come. snooker player. 1922 he was appointed to the Bench of the Cape Provincial Division. In 1938 he was appointed to the Appel­ The Fagans The Watermeyers late Division from which he retired in Henry: Remembered for Ernest: Outstanding sportsman 1950, to Hermanus where he gar­ 'gentlemanliness' dened enthusiastically. He was a When MrJustice NJ de Wet retired champion ofRoman-Dutch law with Mr Justice Henry Allan Fagan was as ChiefJustice in 1944, his place as a keen analytical mind. He is said to born into a legal family at Tulbagh ChiefJustice was taken by MrJustice have been unfailingly courteous and in 1889. After school at Somerset Ernest Frederick Watermeyer who his calm and unruffled judicial tem­ West he took a BA degree in litera­ was born in 1880 on his father's farm perament was said to have been of ture at Stellenbosch University where near Graaff-Reinet. Mr Justice great assistance in unravelling knotty he was awarded the King's Medal for Watermeyer was educated at Graaff­ problems. He was known as 'Billy' to outstanding scholarship. He intended Reinet College, at Stellenbosch Gym­ his friends and died in 1958. to become a Minister ofReligion and nasium until 1884, at Bath College in went to the Theological Seminary. England and at Caius College, Cam­ Henry: Golf champion However, he changed his mind, and bridge. There he took a mathemati­ MrJustice EF Watermeyer had only went to London University where he cal degree in 1902 and a law degree one son. That son, MrJustice Henry obtained his LLB degree in 1913. He CONSULTUS APRIL 1990 29 great when engaged in his practice and politics, in the field ofAfrikaans literature he was prominent, writing poetry, short stories, plays and novels, mainly in Afrikaans, but also in English. He composed several musical pieces, was a keen and com­ petent chess player and reputed to be a doughty opponent over the chess board. He is said to have been unfail­ ingly courteous on the Bench and to have been a tolerant, humane and sincere man. When he died it was said that he would be remembered, using Ruskin's words, for his 'gentle­ manliness, being another word for intense humanity.' He was a cham­ Mr Justice HA Fagan pion of Roman-Dutch law and his Mr Justice JJ Fagan best-known judgments are those in which he dealt with important com­ was admitted to the Bar as a member mon-law issues requiring investi­ ation, a committee member of the of the Inner Temple in 1914, gation into the old authorities. Zeekoevlei Yacht Club, a member of returned to the Cape to practise and Rotary, Chairman of the Academic was swept into the political net. He Johannes: Interested in Advisory Committee and of the was part of the committee which community life Board ofPatrons ofthe University of formed the company which became MrJusticeJohannesJacobus Fagan, Cape Town Institute ofCriminology, Nasionale Pers, and became a direc­ son of HA Fagan, was born at Ron­ a member ofthe Board ofTrustees of tor. He became the assistant editor of debosch in 1927. He was schooled the Michaelis Collection and a mem­ Die Burger, then a fledgeling at Simon van der Stel Laerskool, ber of the school committee of the newspaper. In 1920 he became Groote Schuur Laerskool and Jan HoerskoolJan van Riebeeck. He has Professor of Roman-Dutch Law at van Riebeeck Laerskool and Hoer­ mountaineered, sailed, and more Stellenbosch University, but in the skool, then obtained BA and LLB recently board sailed, motor cycled same year returned to the Bar. In degrees at Cape Town University, and, above all, run. In 1979, 1933 he again went into politics and the latter in 1949, and a BCL degree challenged to run a marathon, he was elected to Parliament for at Oxford in 1952. He was admitted trained for six months and did so. By Swellendam as a Nationalist under to the Cape Bar in 1952, took Silk in 1982 he had run five standard mara­ General Hertzog whom he followed 1972 and was appointed to the Cape thons and the Two Oceans event. into the United Party becoming Bench in 1977. On the Bench he is While his runs must be accorded their Minister ofNative Affairs until 1939, active and vigorous, does not like to due, it is felt that they are perhaps when ousted. He returned to prac­ waste time, but allows counsel his shaded by those of Mr Justice tice, was appointed to the Cape due. He is interested in the Bar and Broome of the Natal Bench. • Bench in 1943 and to the Appellate popular with it. His pursuits show Division in 1950. He became Chief love ofphysical activity, an aesthetic • The first article optimistically promised Justice in 1957 and retired in 1959. appreciation and an interest in com­ that all the families which did not appear After his retirement he unsuccessfully munity life. He has been chairman of in it would appear in the second article. stood, in 1961, for election as the first the Llandudno Residents Associa­ Without reducing the life stories to afew} State President, and in 1962, he tion, a Trustee of the National completely colourless lines each} this could became a Senator. He died in 1963. Botanic Gardens, a founder commit­ not happen. They will} however} make their Although his literary output was not tee member ofthe Cape Clear Associ- appearance in future articles. • Law and Common Sense 1916 SALJ The popular view of the law 'probably need for the learned profession, and in better to apply the law, and not one's is that it is diametrically opposed to deciding cases judges would be driven native impressions. There is naturally common sense, and certainly in some to the old position of the Chancery a disposition in all of us to apply cases this view is not without a substan­ Judges in England whose view of knowledge from the point of view we tial foundation. The lawyer is often Equity, as has been said, often varied know best. It is not a wise proposition, inclined to hold the same view, though with the size of the Lord Chancellor's though no doubt it is a comfortable many learnedjudges have held that the foot; for common sense is very often one; but it is better to look at the aver­ law and common sense are the same very uncommon sense and sometimes age impression rather than one's own, thing. Of course, if common sense nonsense. (The ChiefJustice of Aus­ and to follow the law which is the wis­ were law, there would be little or no tralia is then quoted as follows.) It is dom of many. • 30 CONSULTUS APRIL 1990