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Summary FSAL Semester 1 case summaries
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FOUNDATIONS OF SOUTH AFRICAN LAWCASE SUMMARIES WITH SOME CONTEXT
HUGH CORDER
1. In Re Willem Kok and Nathaniel Balie (1879) 9 Buch 45
Facts: The leader of the Griqua people died and a battle between his sons ensued over uccession. One
of the sons, Muis, with 130 followers revolted against the British presence in Kokstad and joined with
the army from Pondoland. The revolt was put down by the British. But many of them were detained
and didn’t appear in court for over a year. They instructed counsel to ask for the court to release them
as they were not prisoners of war, but British subjects who should be afforded the same rights.
De Villiers CJ: ordered the officer in command of the prison bring the prisoners before the court.
“habeas corpus” or “writ de homine libero exhibendo” meant to produce the body or the free man.
Ultimately, the court ordered their release after having been in detention for a year. If they were
prisoners of war the court argued that they could not have intervened. There was some argument
about whether or not a war needed to be declared or whether a state of war itself was sufficient; to
announce the existence of hostility. The arrest took place after the rebellion was put down thus there
was in no way a war state. The Court derived their power to release the men from the Charter of
Justice. The Court described its duties when faced with this type of circumstance (at 66).
This case provides the first evidence of a willingness to apply justice irrespective of the status of the
people seeking it. This judgment goes against Chanock’s argument.
2. Brown v Leyds NO (1897) 4 Off. Rep 17
Background: The Transvaal ‘grondwet’ provided that all besluiten had to be promulgated three
months before their discussion in the ‘Volksraad’. After 1877 a bench of 3 legally trained judges
replaced the LANDDROSTEN in the Transvaal High Court. The interrelationship between the court,
the grondwet and the volksraad was unclear.
In Executors of McCorkindale v Bok, KOTZE CJ held that it was unfortunate if the Volksraad did not
follow the procedures in the grondwet but that the court had no jurisdiction over the Volksraad.
Facts: Brown was English speaking, and not a citizen of the Transvaal. A proclamation of the
Transvaal declared a certain farm to be a place where claims could be pegged for gold prospectors.
Brown wanted to peg a large amount of money as his claim. The mining clerk would not allow him to
do this, as he claimed he required permission. When higher authority arrived he claimed that the
proclamation had been suspended by resolution. Brown challenged this in Court, taking on Leyds the
Minster of Mines, claiming that under the constitution of the Transvaal the Volksraad could make law
but could not suspend the effect of a law by mere resolution. The question before the court was
whether or not they had the power of judicial review. If parliament is sovereign they can impliedly
change the operation of law, however it operated according to constitution which was sovereign.
The question before the court was whether or not they had the power of judicial review.
Kotze CJ:
Precedent (of the Transvaal courts) indicated that a resolution of parliament on its own was
sufficient to change the law. The judge felt that stare decisis was a rule that should not be
departed from BUT…
Where a previous decision does not follow the constitution the court may depart from
previous precedent. It was held that a resolution was not a valid law. The testing right of
courts or judicial review of legislative action was regarded as unusual. The court refers
copiously to foreign precedent to back up its reasoning and also looked at the law in the
, Orange Free State in a comparative nature. Brown had therefore been unconstitutionally
denied his mining rights. The constitution needed to be taken seriously for minor
infringements eventually lead to major breakdown.
This represented a turnaround of court’s attitude, and effectively meant that the Volksraad, as
a government of the people, were at least procedurally restrained by the grondwet (i.e.
‘procedurally’ because they had to follow a certain process to pass law).
President Kruger felt that the testing rights of the court were “an invention of the devil introduced
into heaven to mess things up.” He demanded that the judges review their judgment, they refused and
some of them were eventually dismissed. They are the only judges in subsequent history to be
dismissed.
3. In Re Dinizulu (1908) 29 NLR 161+ 277
Facts: Dinizulu was tried on 23 counts of treason for resisting colonisation in Natal. WP Schreiner
was Prime Minister in the Cape and was the strongest supporter of federalism. He appeared for
Dinizulu in his trial instead of going to negotiation surrounding the formation of the Union of SA.
There were major irregularities in the pre-trial stage. At the initial stage of the trial a magistrate
decides whether there is a prima facie case against the person. The irregularities included the fact that
the prosecution alone was allowed to enter Zululand to get evidence whilst the defence was banned.
The interpreter was not allowed to enter Zululand alone, prosecution had to be present. The process of
preparatory examination was so flawed that Dinizulus team attempted to have it set aside. This failed
and the case went to trial where he was convicted of 3 counts of treason. He went to jail for 4 years,
and died 3 years after his release.
The state manipulated its case against the defence; in what Dugard calls a “persecuting political trial”.
During the time when all provinces governed themselves separately all highest appeals went to the
Privy Council in London, the highest court of appeal for the commonwealth. After this, the Appellate
Division was created in Bloemfontein whereby the High Courts in the different provinces became
branches of the Provincial Division. There were 5 judges in the appellate division Innes, De Villiers
etc. In regard to the appellate division the question is to look at how the AD dealt with cases whereby
the civil liberties and rights of the people clashed with those of the government, and with respect to a
serious of landmark cases the court pursued more broadly a political agenda. In exercising choice they
sided with prevailing white points of view as opposed to an all encompassing one. Note that most
judges were acting party politicians rather than career judges.
Background note on the limited franchise:
Remember that apart from issues of race, half the British population was excluded from the
vote on the basis of gender. This policy was continued in the four South African colonies.
The Cape still had a limited franchise based on education and land ownership. Males who
could write their own name and occupation and had a job paying 50 pounds per year or
occupied land to the value of more than 75 pounds were allowed to vote.
o This system was obviously substantively in the favour of whites who held better
paying jobs and were more educated.
o But in the early 1900’s there were around 20 000 non-white voters, enough to be
worthy of consideration by politicians.
Natal in theory also had an open franchise but the non-whites were a miniscule minority.
4. Moller v Keimoes School Committee 1911 AD 635
This was one of the early indicators of the Parliament-centric approach of the AD. Note this case was
heard in 1911 only a year after Union and provided an authoritative statement on the role that ‘race’
would play in the future of the Union.
, Facts: The Cape School Board Act provided separate public non-religious schools for people of
EUROPEAN extraction. Mr Moller entered his kids into a Cape district school and paid the fees,
other parents withdrew their children so the school refused to admit Moller’s children and returned his
money. His advocate on appeal was WP Schreiner.
Moller was white, his wife was coloured. Three of the 4 grandparents were thus white and
English.
o WP Schreiner (for Moller) made 2 arguments:
Firstly that ‘Europeanness’ was about intellectual and cultural capacity not
colour. This belief was endorsed by several prominent Cape politicians
including John X Merriman and Schreiner (Former Prime Minister of the
Cape) himself.
Discrimination based on physiological ethnicity, Schreiner argued,
would fall foul of the recently established rule in KRUSE V
JOHNSON, that ADMINISTRATIVE ACTION WOULD BE
UNLAWFUL IF ITS EFFECTS WERE PARTIAL AND
UNEQUAL IN THEIR OPERATION AS BETWEEN CLASSES
unless that action was specifically delegated.
Racial identity as Schreiner understood it was a class in this sense.
In the alternative he argued that Moller’s children should be regarded as
European because they were ¾ white.
Lord de Villiers CJ: The court should endeavour to place itself in the intention of the legislature. The
first legislators came from Holland who believed they ruled over the locals. Slaves were black and
their descendents were not considered to be equal to whites. Sex across colour lines, however, was not
unlawful. The vast majority considered such relationships and the children thereof as scandalous
though.
In other words the law should reflect the view of the people (i.e. white people) that white
people were generally superior.
Note - This virtually establishes a rule of statutory interpretation based on racial
discrimination.
Innes J: recognised that the decision would have political and social influence.
He considered that the ambiguity allowed him to turn to the ‘mischief rule’.
The mischief was that the law pre 1905 had not provided expressly for separate schools and
the purpose of the law was therefore to remedy this mischief.
It was not for the court to decide on the wisdom of the policy.
He ended with a note of regret that the Act might reflect hardship on deserving members of
the community and urged the Legislature to consider the matter.
In other words a forerunner of what Corder calls the “sorry but” judgment.
Lawrence: where an act of parliament takes away rights, thus restrictive or disabling provisions,
should be interpreted in a liberal spirit to preserve rights. However, bringing pupils of all colours
together would disrupt the education system despite him deploring the inadequacy of the education of
non-europeans but this was for parliament to decide.
De Villiers J: gave effect to the plain meaning of the act. For him it clearly meant white people.
Kotze: sympathy must be felt for the children, but the father has himself to blame given the
knowledge of race relations.
Appeal was dismissed. As a milestone case, one year after the Union was established the AD
unanimously in a case open to interpretation favoured the dominant view of white people.
NOTE that although on a narrow legal basis the judgment can be supported, it was not the
only option open to the bench – they HAD A CHOICE.
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