Abstract

VAN DER MERWE, Derek. Brown v Leyds no (1897) 4 or 17: A constitutional drama in four acts. Act one: the 1858 Constitution of the Zuid-Afrikaansche Republiek. Fundamina (Pretoria) [online]. 2017, vol.23, n.1, pp.111-165. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n1a6.

This is the first of a series of articles on the historical and jurisprudential background to the well-known judgement of Chief Justice John Kotzé in Brown v Leyds NO (1897) 4 OR 17. Central to the Brown judgement was the liberal interpretation Chief Justice Kotzé attached to the 1858 Constitution (the Grondwet) of the South African Republic (the Zuid-Afrikaansche Republiek). The articles traces the jurisprudential history of the Grondwet, from the earliest conceptions of statehood adopted by the Voortrekkers of the Great Trek, to the first feeble forms of Republican government adopted by the Boers. It then describes the different ideological conceptions within the Boer society of the trans-Vaal region that came to be attached to the notion of the "volkstem" (the voice of the people) as an expression of the "volkswil" (the will of the people). These different ideological conceptions were best captured as responses to the question "Wie heeft de Koningstem?" ("Who has the King's voice?"). These ideological differences gave rise to political differences that inhibited the framing of a proper constitution for the territory for six years. Various attempts at drafting a constitution are described, as are the compromises that were reached and the distinctions that were drawn in order to reach a position where, in February 1858, a Constitution that carried the approval of all the people was finally adopted. This history, in which Paul Kruger, the later State President, played an integral part, is important for a proper understanding of why the judgment adopted by Kotzé in Brown was untenable, laudable though his motives were.

Keywords : Constitution; Zuid-Afrikaansche Republiek (South African Republic); Dutch/Cape Patriots; Boers; volk (the people); volkstem (voice of the people); vox populi vox Dei; the King's voice; governance; hoogste gezag (highest authority); Volksraad (council of the people); eenhoofdig bestierder (autocratic leader); maatschappij (society).

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