Abstract

VAN DER MERWE, Derek. Brown v Leyds no (1897) 4 or 17: A constitutional drama in four acts. Act three: The king's voice speaks through the 1858 ZAR constitution to President and Chief Justice (1884-1895). Fundamina (Pretoria) [online]. 2018, vol.24, n.1, pp.89-133. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2018/v24n1a5.

This is the third 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. Chief Justice Kotzé's judgement in this case was his ultimate expression of the centrality of the 1858 Grondwet (Constitution) of the Zuid-Afrikaansche Republiek to determine the extent and nature of legislative, executive and judicial powers in a constitutional democracy. The judgement set in train a series of events that led to the Chief Justice's dismissal from office by State President Kruger in 1898. This article traces Chief Justice Kotzé's gradual conversion, over a ten-year period, from a judge who uncomfortably acknowledged judicial subservience to unfettered legislative authority, to an activist judge (influenced by Marbury v Madison) who was confidently prepared to assert judicial independence and constitutional supremacy over presidential and legislative flat. This conversion is described by means of an analysis of a series of judgements from the 1880s and early 1890s. The analyses also embed the judgements in the social, economic and political events (chief among which was the discovery of the main gold reef on the Witwatersrand in 1886) that shaped and ultimately determined Kotzé's damascene conversion from positivist lawyer to activist constitutional judge within a ten-year period. An attempt is also made to describe the personalities of the three main characters in the unfolding drama (Paul Kruger, John Kotzé and the state secretary, Willem Leyds) and how their respective ambitions, fears and prejudices influenced Kotzé in his judgements. This background knowledge is essential for a full understanding of why Kotzé adopted his radical stance in the Brown case, why it had such powerful political repercussions, why Kruger subsequently reacted in the way he did, and why Kotzé's approach was, in the final analysis, wrong in law.

Keywords : 1858 Grondwet; constitution; constitutional democracy; Volksraad; Boers; supreme authority; sovereign authority; highest authority; volk; uitlanders; judicial independence; Paul Kruger; John Kotzé; John Austin; Hugo Nellmapius; freedom of the press.

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