He of the recent judgment of your Court in Brown's case. is credited with great sympathy for you and your country, and would not have expressed that opinion unless convinced that it is legally and constitutionally correct. President: Well, what do you think? Chief Justice: Ah, that is another question; but remember that my opinion is not conclusive as against that of Judges who have to administer the laws of your country. In my interviews with them I have candidly stated my opinion that the previous judgment in McCorkindale's case is more in accordance with the letter and spirit of your law and Constitution. President: How can anyone possibly hold a different opinion? I took a part in the establishment of our Constitution, and know that the Volksraad was intended to be the supreme power in the State, with full authority to amend the Constitution as the circumstances of the country altered. There is no other way of amending the Constitution. If the recent decision of the Judges is right, then there are very few laws which may not be called in question. I may have no right to be President and the Raad may have no power to make any laws whatever. Chief Justice: I am convinced, President, that the Judges have acted conscientiously, and in the full belief that they correctly interpreted the Constitution. I believe they feel sore at some of the remarks made by you casting doubts on their loyalty and patriotism. President: I have never said that they were intentionally disloyal, although I may have said that the effect of their judgment was to play into the hands of the enemies of the country, whose only object is to deprive it of its independence. Chief Justice: The dismissal of the Judges would have a very bad effect in other countries as well as here. The difficulty in which you were placed will not be understood, but it will be generally believed that you are removing the Judges because you do not wish them to be independent. Besides, your Chief Justice has served this country well and faithfully for over twenty years, and he cannot be cast off as you would cast off a worn-out shoe. President: I have no wish to deprive the Judges of their independence; on the contrary, it is my desire, for my own credit, that their independence should be fully maintained. I acknowledge the great services which the Chief Justice has performed, and I have no desire to treat him unjustly, but what am I to do if the country is thrown into confusion by a judgment which contradicts former judgments upon which we have acted? If the last judgment stands out independence is gone. We had no choice but to pass the recent law, and England would have done the same if her Judges had given a similar judgment. Chief Justice: This is a very large question to discuss, but we are now more concerned with the present than with the past. I have every hope that the Judges may, to some extent, reconsider their position. Of the six Judges, three hold that the testing power does not exist They may, therefore, all safely undertake not to exercise a power which cannot be practically exercised. Besides, as men of sense, they must see that their recent judgment has placed you and the Volksraad in a very difficult position. But you must admit that your Constitution is very defective in allowing the Grondwet to be altered by a simple resolution of the Raad without those safeguards which in other Republics are deemed absolutely necessary. The Constitution of the Orange Free State is preferable to yours, and if you would promise to introduce a law requiring similar safeguards to those existing in the Free State, I think the Judges might be honourably advised to give an undertaking on their part that they will not exercise the testing power. President: I am in favour of such an alteration of the Grondwet, and have said so more than once, but I will not accept an undertaking which is conditional. The Judges must unconditionally give the undertaking, and then they may, by separate letter, request me to introduce a measure for the amendment of the Constitution. Chief Justice: You should not forget, President, that the Judges have a sense of honour as well as you. I cannot advise them to give the required undertaking except on the understanding that you will, on your part, assist in removing their objections to the existing Constitution. President: I cannot have any conditions. You use the word "understanding" (verstandhouding), but that would be a condition. Chief Justice: No doubt it would be a condition in the sense that they would trust to your loyally fulfilling your promise. President: I intend to fulfil my promise, but I will have no conditions. Chief Justice: Then I fear our interview will have no result. I have come here in the hope of inducing both sides to make some concession, with the view to putting an nothing, I cannot ask or expect the Judges to yield everything. They are prepared to take their dismissal, but the responsibility will be yours, because the Volksraad has given you the widest discretion in regard to the acceptance of the Judges' answer. President: The Volksraad expect an unconditional answer. Chief Justice: The new law does not say so. Unless the Judges' letter is accepted with the understanding mentioned, they will not send any answer except an unconditional refusal. President: Well, what do you suggest? Chief Justice: I suggest that you accept the understanding, on which alone they will give any undertaking. President: But supposing I fail to carry a law through the Volksraad for the amendment of the Constitution, will the Judges be entitled to withdraw their undertaking? Chief Justice: The understanding is, that you will propose the law. If you have honestly proposed the law, and done your best to carry it, you will have performed your part, and the Judges will be bound by their undertaking. President: Such a law cannot be carried next session. A committee will have to be appointed to draft the law and lay it before the people, and only next year will it be possible to carry the measure. If I do not propose a Bill this year, it will be said that I have not kept my promise. Chief Justice: The Judges would themselves wish the measure to be well considered by the burghers, and if you do your best to carry it the Judges would, I feel sure, consider the proposal to appoint a committee with a view to legislation next year as a compliance with your promise. President: Very well, then you may inform them that their letter will be accepted. Chief Justice: I thank you, President, for this interview. If my mediation should prove successful, I shall be grateful to have been once more able to assist in restoring peace in South Africa. President: I know that you are not one of our enemies. Your mediation shows that you mean it well with us, but I am responsible for the independence of the State and must take care that it is not lost. You may depend upon my doing what is right and fair to all. Chief Justice: That is all I ask for. I have been much abused for my interference, but if it leads to a better state of things I shall never regret it. At all events, the immediate object of my visit will be gained if the dangerous dispute with the Judges is settled in a satisfactory and honourable manner. President: I thank you, Chief Justice, for what you have done. (Dr. Leyds was now sent for to translate and explain to the President the form of a letter which I suggested should be written by the Judges and accepted by the President. This letter, with some modifications proposed by the Judges, was subsequently written and published.) ANNEX 12. Correspondence between Chief Justice Kotze and President Kruger and the Volksraad Commission, 1897-8. No. 39. Your Honour, High Court of the South African Republic, As Chief Justice of the Republic I have taken notice of the official minutes of the Honourable the First Volksraad, as published in the supplement of the Gazette of Wednesday, 9th June, and Wednesday, 16th June, 1897. Therein I find, under the proceedings of Monday, 31st May, 1897, Article 185, that a Government Missive 796/97, of 19th May, 1897, was placed on the order. This Government communication contains an Executive Council Resolution of 29th April, 1897, which reads as follows: "The Executive Council bearing in mind the letter of His Honour the State President to the members of the High Court dated 22nd March, 1897, considering that it is desirable that the Grondwet (Law No. 2 of 1896) be further amended and that there be omitted therefrom the provisions which do not properly belong to the said Grondwet: 66 Considering that it is desirable to fix and regulate the powers and the independence of the different departments of State in a definite manner : "Considering that such a revision of Law No. 2, 1896, will also necessitate a revision of several other laws, and considering further the pressing necessity of systematically arranging the local laws of the Republic, and, wherever necessary, to add to, amend, and explain the same, "Resolves to advise His Honour the State President to propose to the Honourable the First Volksraad the appointment of a Commission of three or five members, whose duty it will be, in conjunction with the Government— (a) to draft proposals, in consequence of the above considerations, for the revision of the Grondwet (Law No. 2, 1896); "(b) to add thereto such provisions as will render it impossible to alter the Grondwet, except in the manner provided by the Grondwet itself; "(c) to compose a whole, or more than one whole, whereby the existing laws of the South African |