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Legal centre of Natal
11 Mar 2010
Peter Spiller

Pietermaritzburg has held the primary place in Natal's legal affairs throughout the one hundred and fifty years of its existence. During the years of the Boer Republic (1838-45), judicial powers lay with the elected Volksraad. From February 1840, this sat in the Voortrekker Raadzaal facing Market Square. The Raadzaal was a small building of unburned brick, whitewashed walls, thatched roof and six small windows, and was described as a 'dog kennel' and 'the most unornamental edifice in the town'. In these
unprepossessing quarters, the members of the Volksraad administered justice, according to Roman-Dutch law, until well into 1845.

Following the British annexation of Natal as a separate District of the Cape Colony, a District Court of one judge (styled a Recorder) commenced hearings in January 1846. This Court heard major civil and criminal disputes, while minor matters were assigned to the magistrates' courts which were established in Pietermaritzburg and Durban in 1846. The Recorder and his District Court administered justice in the 'very scrimp and imperfect accommodation' provided by the Raadzaal, although two small rooms were added, for the judge and the registrar. The general conditions of Natal and Pietermaritzburg at this time were aptly described as being 'rude and plain'. For example, in April 1856, such heavy rains fell that the Recorder had to swim the Msunduze River to reach the court-house. He was greeted by a crowd gathered with sandwiches and ; 'grog' for the eagerly awaited session, but the session was postponed because the witnesses (unlike the judge) were I unable to master the floods.
 

Caption: The Natal Supreme Court buildings in the 1920's and the Native High Court in Pietermaritz Street during the 1880s.

 

 During most of the District Court era (1846-55), the Recorder was the talented and temperamental Cape advocate Hendrik Cloete, and for the remaining period (1855-58) the office was filled by the mediocre public servant Walter Harding. They continued to administer Roman-Dutch law but, especially with the Anglicization of Natal colonial society h m the early 18509, pressures arose to make Natal's legal affairs more English. The resultant tensions contributed significantly to the suspension of  ecorder Hendrik Cloete (a staunch Roman-Dutch exponent) in 1853. Though he was restored to office in 1854, his disenchantment with aspects of Natal's legal affairs was such that he returned to the Cape the following year.

The local Bar that serviced the needs of Natal litigants was generally mediocre in legal knowledge but colourfid in personality. From the outset, Natal's Rules of Court allowed dual practice, in terms of which advocates and attorneys could act in each other's profession. The result was that, for many years, most Natal advocates were admitted on the basis of being attorneys, either because they were United Kingdom practitioners or by virtue of local practical training. The two most prominent Pietermaritzburg advocates of the early years were Arthur Walker, the former Dublin law clerk and Pietermaritzburg horsedealer, and David Buchanan, the eloquent and fiery editor of the Natal Witness.

The District Court theoretically held jurisdiction over all persons residing in Natal. But, at the commencement of British rule, Theophilus Shepstone, Diplomatic Agent, assumed de facto jurisdiction over inter-African affairs, and here African laws and customs were applied. In 1849, Shepstone's administration was regularized and, from his centre in Pietermaritzburg, he presided over a network of administrators of African law (including African chiefs) with appeal to the Lieutenant-Governor. This system remained in operation until 1876.

Natal officially remained a District of the Cape Colony until 1856, when a Charter established Natal as a separate Colony. Calls were then made for the upgrading of the District Court, in keeping with Natal's improved political status. The result was the transformation of the District Court into the Supreme Court, comprising a Chief Justice and two puisne judges. The men selected to pioneer this Court were Chief Justice Walter Harding (the former Recorder), Judge Henry Connor of Ireland and Judge Henry Lushington Phillips of the English Bar. They maintained the basic substratum of Roman-Dutch law, but inevitably English and Natal legal elements infiltrated the legal system.

The Supreme Court was obliged to sit in the Raadzaal building until 1871, when the Court moved into the new government building in Commercial Road. This building was a decided improvement over the old: it was built in the Renaissance pavilion style, with an attractive arcaded front and a well-ventilated, commodious interior. But the Court experienced acoustic problems, and palliatives, such as the erection of a sounding board made out of old packing cases, had little effect. Furthermore, there was the major diaculty that the Supreme Court initially had to share its new premises with the Legislative Council. This produced 'chronic squabbling' between politicians and lawyers, and the interruption and postponement of Court sittings. The problem lasted until the late 1880s, when the Legislative Council moved to the new Parliament Buildings. In ensuing years, there was the occasional disruption of proceedings caused by defects in the court-house: in January 1897, during a wind and rain storm, a leak developed, causing the usher to seek refuge under the registrar's table and finally the abandonment of the court session. But, overall, there was now little public complaint about the chief seat of the Supreme Court.

The Pietermaritzburg Bar continued to be dominated by English or locally-trained advocates-cum-attorneys. Joining Walker and Buchanan at the forefront of the Bar were the Irish-born Attorney-General Michael Gallwey,  and 'Offy' Shepstone, the forceful son of the Secretary for Native Affairs. In 1871, the advocates of Natal decided to form the Natal Law Society, to promote the interests and legal knowledge of the legal profession. In ensuing years, meetings were held under the aegis of the Attorney-General, and dinners were enjoyed for the reason that 'no business can be done without eating'.

Caption: The three Professors Burchell. Frank Bruce ('Binkie') (1923-54), Extorn Mabbutt (1954-82), Jonathan Mark (appointed 1987). This dynasty of legal academics is belived to be unique in South Africa.

 

Caption Sir Michael Gallwey, Chief Justice of Natal, 1890-1901.

Caption: Sir Henry Binns, when Attorney-General of Natal.

Three major developments took place in the mid-1870s. First, on the death of Walter Harding in 1874, the Chief Justiceship passed to Henry Connor. During his tenure in office, Chief Justice Connor established himself as one of . the finest judges in South African legal history. His three decades on the Natal Bench (including sixteen years as Chief Justice) were marked by profound scholarship, keen and logical acumen, absolute integrity and thorough dedication to duty. During his Chief Justiceship, he was a dominating presence on the Bench, and, for many decades after his passing, his judgments were quoted in the Natal Court with respect and even reverence. His reputation extended beyond Natal's borders, and such legal luminaries as Chief Justices Henry de Villiers, John Kotze and James Rose Innes praised his ability, intellect and learning. Natal was especially fortunate in having Chief Justice Connor in view of the sharply contrasting performance of certain of his brother judges, whose
personal moral standards, judicial ability and notions of impartiality were woefully inadequate. The second major development of the 1870s was that the Shepstonian system of adjudication with the help of African chiefs was replaced by a new, formalized structure. Most civil matters between Africans were now to be heard by administrators of African law, with appeal to a single-judge Native High Court, which also had original civil jurisdiction in certain cases. Specified crimes committed by Africans-such as
political offences and faction fights - were also assigned to the Native High Court. The first judge of the Native High Court was the Hon. J. Ayliff, the former Colonial Treasurer and Postmaster-General, and he began proceedings on 27 December 1876. The third important development of this time was the trial of the black chief, Langalibalele, in 1874. The regrettable outcome of this trial had momentous political consequences for Natal.

The 1890s saw further significant changes in legal affairs in Pietermaritzburg. In 1890, Michael Gallwey succeeded Henry Connor as Chief Justice. Chief Justice Gallwey was a talented lawyer, but could not compare with his predecessor in ability and erudition. His tenure as Chief Justice (1890-1901) was undistinguished and, apart from the presence of Judge Arthur Mason (future Judge- President of the Transvaal), the Natal Bench of the time was of a mediocre standard. Then, in 1896, the Supreme
Court took over the fundions of the Native High Court. This development was partly the result of certain discontent with the workings of the Native High Court, and also the emergence of an ideological commitment to 'one Supreme Court and one law for black and white'. The Supreme Court exercised the functions of the old Native High Court from 1896 to June 1899. During this period, as in no other time during the Supreme Court's existence, its legal business reflected the true nature of Pietermaritzburg and Natal as a multi-racial, multi faceted society. However, the experiment with one Court proved to be a failure. The Supreme Court judges revealed little understanding of or regard for African customs and legal practices, and the result was a developing lack of confidence in the Court amongst African suitors. The result was the resurrection of the Native High Court in 1899. This was to be composed of a Judge President and two puisne judges, who were to hold exclusive jurisdiction over Africans in all except specifically reserved civil suits, and a greater jurisdiction over criminal cases than that enjoyed by the earlier Native High Court. The new Judge President was Henry Campbell, former civil servant, master and acting judge of the Supreme Court, and the Court was to occupy the court-house in College Road that came to be known in later years as the 'Old Bailey'.

The last decade of the Natal Supreme Court saw a Natal-born man at the helm of legal affairs. Chief Justice Henry Bale succeeded Michael Gallwey in 1901, and remained Chief Justice through to Union in 1910. He was a solid, capable judge, with a reputation for integrity and dedication to duty. The rather pedestrian Bench over which he presided was considerably u p l M in 1904 with the arrival of Judge John Dove Wilson, a talented Scots advocate. Pietermaritzburg was now also the setting for a variety of specially constituted Courts, notably the treason Courts to try recalcitrant Boers (in 1900-2) and the preliminary examination of the Zulu chief Dinuzulu (in 1907-8) for his alleged part in the 'Barnbatha rebellion'.

In the Pietermaritzburg Bar, the closing decades of the Supreme Court revealed a growing sophistication and sense of purpose. The Natal Law Society intensified its efforts to raise the ethical and educational standards of the Bar. For example, it actively developed a library for its members, the collection being housed with certain prominent advocates (notably, at the office of Messrs Hathorn and Mason), and later in the Public Library.

However, the Society did not always exert its efforts constructively: in 1894, it unsuccessfully opposed the admission of Mohandas Gandhi to the Natal Bar, for evidently racialistic motives. Within the ranks of Natal advocates there now emerged men of greater stature and emrtise than the leaders of the early Natal Bar. These included the learned politician-"-advocate William Morcom and the confident and forceful Frederick Tatham.

With Union in 1910, the Natal Supreme Court became the Natal Provincial Division of the Supreme Court of South Africa. By the end of 1910, John Dove Wilson had succeeded Henry Bale as Judge President of Natal. Judge President Wilson, during his twenty years in office, was a highly respected figure in Natal and South African legal affairs: certain of his judgments have remained standing precedents of South African law and he was called upon to assist the Appellate Division in Bloemfontein. His presence helped to compensate for the presence on the Natal Bench of certain judges of lamentable judicial ability. The Native High Court continued to dispense justice for Africans, under the guidance of Judge President Henri Boshoff and his brother judges. But legislation of 1927 and 1929, which established a system of 'native' commissioners, divorce and appeal courts, deprived the Native High Court of all civil jurisdiction and much criminal jurisdiction. Thereafter the Court functioned imply as a superior court to try African crime, and was seen as a 'fossil' survivor of pre-Union days.

Also in 1910, Pietermaritzburg saw the foundation of a legal institution which has had a major impact on Natal legal affairs, namely, the Law Faculty at the University of Natal. Notable members of the academic staff were Robert Inchbold (the founder), and the father-and-son team, Frank and Exton Burchell. The bulk of Natal's legal profession came to be trained at the Pietermaritzburg Law Faculty and (from 1927) its branch in Durban. In 1923, the Natal Law Society established itself in elegant accommodation in
Change Lane. By this time, Natal's dual profession had experienced certain stirrings of change: under the leadership of Graham Mackeurtan, one of the greatest lawyers South Africa has known, a separate Bar of advocates had emerged. Another noteworthy development came in June 1929: Caroline Fraser became the first woman to be admitted as an attorney in Natal. In 1930, Richard Feetham succeeded John Dove Wilson as Judge President of Natal. Judge President Feetham was a scholar, at home in Greek and Latin, and his judgments were models of intellect and elegance. He maintained the standards and rules of the Natal Court with icy efficiency. Soon after his appointment he was called upon to draft Rules of Court which were of great importance to the Natal legal profession. The resultant Order of Court of 1932 brought to an end Natal's distinctive system of dual practice, with effect from 1937, although legislation preserved the right to dual practice of those with such right in 1937.

In 1939 Richard Feetham was transferred to the Appellate Division, and Roy Hathorn became Judge President of Natal. His appointment signified a recurring feature of Natal judicial affairs in the twentieth century, namely, the prevalence of judicial dynasties. Judge President Hathorn's father, Kenneth, had served on the Natal Bench from 1910 to 1926, and his son, Anthony, became leader of the Natal Bar in the 1950s. Thus it was said that 'the Hathorn family is part of the tradition of the law in this province - a tradition of keeping the law consistent and certain'.

Judge President Hathorn's retirement in 1950 brought another of Natal's legal dynasties to the fore, namely, the Broome family. Judge President Frank Broome was the son of Judge William Broome, who had served on the of John Broome who was to become a judge of the Natal Bench in 1976. As Judge President he revealed a logical, clear mind, a strong sense of decorum, and a courteous manner. It was during his tenure that the Native High Court passed out of existence. On 15 December 1954, Judge President Brokensha of the Native High Court announced at the end of the Court session that 'the Court will rise and will not sit again'.

In January 1961 Judge President Bkme retired, and former Transvaal judge Arthur Faure Williamson served as Judge President for the rest of 1961. However, in January 1962, Williamson was sent to the Appellate Division, and his place at the helm of Natal's legal affairs was taken by Alexander Milne. Judge President Milne passionately believed that the proper administration of justice was one of the main foundations of South African civilization. Contemporaries remarked that he conducted the Natal Court with dignity, courtesy, scrupulous fairness and the conscious disregard of outside pressures and influences. On Milne J.P.'s retirement in 1969, Neville James became Judge President. He was said to possess a pragmatic approach to the processes of the law, an invariable 'nose' for the right answer, and an ability to reorganize the work of the Supreme Court so that delays that had occurred in the times of his predecessors were considerably reduced. His tenure proved to be an interregnum in the reign of the Milne family over Natal's legal affairs. Alexander John Milne, the son of the former Judge President, became Judge President in 1982. Judge President A.J. Milne, the kindeyed judge with a gentle sense of humour', remained Judge President to the end of 1987. During his Judge-Presidency, the Natal
Provincial Division has established a reputation for activism and judicial independence in the face of a government intent on exercising a vast array of executive powers.

In July 1983, Judge President Milne and his Court left the Supreme Court building in Commercial Road, which had housed Natal's premier Court for one hundred and twelve years. Judge President Milne spoke of the affectionate regard that the Natal legal profession retained for the old court-house, which was 'rich in memories of powerful battles and human drama'. However, the new Supreme Court premises offered many advantages, with eight acoustically-sound, light, airy and comfortable courts
and sumptuous facilities. The result is that Pietermaritzburg approaches its one hundred and fiftieth anniversary well-provided in terms of material legal facilities. Furthermore, it has, in the person of the present Judge President, and in the careers of predecessors such as Chief Justice Connor and Judge President Wilson, much to be proud of. One may be confident that the declaration of Judge President A.J. Milne, that the Natal Supreme Court is one which is dedicated to serving 'all of Natal's peoples without fear, favour or distinction', is indeed carried into effect.

Source: Pietermaritzburg 1838-1988: a portrait of an african city, edited by John Laband and Robert Haswell (Pietermaritzburg: University of Natal Press and Shuter & Shooter, 1988), pp 96-100.



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