Abstract

VAN DER MERWE, Derek. Brown v Leyds NO (1897) 4 or 17: a constitutional drama in four acts. Act two: the 1858 ZAR constitution, malleable instrument of Transvaal Realpolitik (1859-1881). Fundamina (Pretoria) [online]. 2017, vol.23, n.2, pp.118-175. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n2a7.

This is the second in a series of articles on the historical and jurisprudential background to the well-known case of Brown v Leyds NO (1897) 4 OR 17, central to Chief Justice Kotzé's interpretation of the provisions for law-making in the 1858 Grondwet (Constitution) of the Zuid-Afrikaansche Republiek. This article traces the subsequent history of the Grondwet against the background of the socio-political turmoil in which the Republic was engulfed, the annexation of the Transvaal in 1877 and the restoration of the Republic in 1881. It describes the Volksraad's readiness to amend the Grondwet from time to time, on matters big and small, and to adopt a somewhat laizzes faire attitude to the manner in which the Grondwet was amended. The manner in which the Volksraad made laws, either by means of the constitutionally-prescribed legislative process or by means of resolutions - an issue that became severely contentious in later years - is discussed and analysed. Also discussed is the uneasy relationship between the sovereign authority of the volk, the supreme authority of the Volksraad and the executive authority of the state president. It was the inability of both President Pretorius and President Burgers to fully appreciate the centrality of the Volksraad's supreme authority in the Republican constitutional dispensation that led to their political demise. A final section examines the rise to political prominence of Paul Kruger (emphasising his obedience to the sovereign voice of the people as the voice of God) and of John Kotzé (emphasising judicial independence and integrity), against the backdrop of the annexation of the Transvaal by Great Britain and the successful war for independence fought by the Boers. This background is important for an understanding of the approaches adopted by Kruger and Kotzé in the later constitutional crisis they became embroiled in.

Keywords : 1858 Grondwet; constitution; constitutional amendments; unification; civil strife; volk's party; state party; Volksraad; supreme authority; sovereign authority; volk; volkstem; Boer [Boers]; Paul Kruger; John Kotzé; MW Pretorius; TF Burgers; Keate Award; Alexander McCorkindale; annexation; War of Independence 1880-1881; supreme court; chief justice.

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