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Early days at the Johannesburg Bar

R L Selvan SC
Johannesburg Bar

When precisely the Johannesburg Bar became a Society of Advocates separate from the Transvaal Society of Advocates – I have not so far been able to ascertain. Up to the year 1919 the Johannesburg advocates were members of the Transvaal Order. The oldest Minute Book that we have been able to trace relating to the meetings of the Bar Council runs from the year 1905 to the year 1907. From this it appears that meetings of the Council took place sometimes in Johannesburg and sometimes in Pretoria.

But it seems probable that de facto as time went on each Bar tended more and more to manage its own affairs. More than once in the minutes there is mention made that the Pretoria members had not paid their subscriptions.

In the report of the “local Bar Council” dated 14 November 1919 the following paragraph appears:

“(6) During the early part of the year there was a strong movement arising out of a General Meeting of the Pretoria Members for the separation of the Transvaal Division into two separate Divisions, one in Johannesburg and one in Pretoria. On the 22nd February, a Special General Meeting was held, at which there was a record attendance of 31 Members to deal with this question. It was resolved at such Meeting that a decision on this matter be deferred pending an inquiry into the question as to whether the rules of the Society relating to “Silks” should not be modified, and also as to whether some modification should not be made in the rules relating to Administration, to meet the conditions of members in Johannesburg and Pretoria. Consequently, at the half-yearly general meeting, certain modifications in re: Rules relating to “silks” and Administration, which are referred to below, were adopted; it was unanimously resolved that the question of separation should be dropped.

Paragraph 8 of the report setting out the new regime as to administration reads as follows:

“Administration: At a Half-yearly Meeting, it was resolved that Section 11 of the Local Rules relating to officials be deleted, and the following substituted:

There shall be two Joint Secretaries and Treasurers: one to be chosen from among the Pretoria Members and the other from among the Johannesburg Members.

Pretoria members shall pay their subscriptions to the Joint Secretary and Treasurer at Pretoria who shall form therewith a Pretoria Fund: and Johannesburg member, to the Joint Secretary and Treasurer at Johannesburg, who shall form therewith a Johannesburg Fund. The Pretoria fund shall be administered solely by the Pretoria members of the Bar Council, and the Johannesburg fund by the Johannesburg members of the Bar Council.

The existing fund shall be divided between Pretoria and Johannesburg pro rata.

The following addition was adopted:

“All powers exercisable by the Council shall be exercisable by the Pretoria or Johannesburg Members thereof acting separately, provided that in every case due notice shall be given to the Joint Secretary and Treasurer residing in the Division other than that in which the members of the Bar Council taking action reside.

In the event of the joint local Secretary giving notice that the said action affects members of the Society in his town, a General Meeting of’ the Local Bar Council shall forthwith he called. Such Meeting shall be called by the Joint Local Secretary residing in the town where the matter first arose.”

The change was calculated to bring about virtual autonomy for each of the Johannesburg and Pretoria Bars.

Where Chambers were kept

As in Pretoria, the ideal appears to have been for advocates to keep chambers in the same building. This conduces to congeniality and comradeship, not to mention the maintenance of standards the advancement of the interests of the Order. But, much more than today, there were advocates who elected not to join the Society. The Minutes revealed that from time to time complaints were received regarding such, to which the Council replied, doubtless with regret, that it had no jurisdiction over them. As appears from the interesting account of Mendelow QC in Consultus 56 (1988(2)) in the year 1903 members the Bar were housed in buildings all over Johannesburg. In his autobiography, Not Heaven Itself, Manfred Nathan, who was admitted to the Transvaal Bar on 26 October 1897 says the following:

“I took chambers in Natal Buildings, Commissioner Street, Johannesburg – a small, pokey office, with every nook and corner of which I was destined to become well acquainted during the next ten years. I may at once mention that in 1908, I moved across the street to the new Standard Bank Buildings, the other members of the Bar being C F Stallard, J T Barry and R Honey. Then in 1919, the majority of the Bar decided to migrate to Sauer’s Building, opposite the City Hall, and I was induced to join them, much against my wife’s opinion.” (at 133).

However Nathan has his dates wrong.

From 1908 most of the members of the Bar had chambers at Sauer’s Buildings. But Dr Krause, Harry Morris and L O Pyemont kept chambers at National Mutual Building. From about the year 1923 the Bar moved to Corporation Building where it remained until about 1939 when it moved to Empire Building. A resolution to move to His Majesty’s Building was passed in the year 1940 and the move took place in November 1941. In 1948 there was a rent increase of 50%, which gave rise to some expressions of discontent. The Bar moved from His Majesty’s Building to Innes Chambers on the corner of Pritchard and Kruis Streets in 1961. In the year 1977 the Bar, by reason of a pressing need for further accommodation, per force became the tenant of some rooms in a building in Pritchard Street on the other side of Kruis Street which subsequently became Schreiner Chambers. In 1993 two floors in Innes Chambers were extended into a new building in Market Street, called Colman Chambers after that eminent judge. Each move was preceded and accompanied by the expression of divergent views, misgivings and recriminations.

Personalities at the Bar

Nathan in his autobiography says that at the time of his admission there were at most half a dozen practising advocates in Johannesburg. One of them was P M Beyers, then well over fifty, who had been a fellow student of Lord de Villiers CJ at a university in Holland where they had both studied theology. Of Beyers Nathan writes:

“Beyers had no law degrees and I must say was not much of a lawyer; nor did his practice ever attain any dimensions. We became very good friends, and we often lunched together at the Goldfields Hotel; also I used to spend a late afternoon on the balcony in front of his bedroom at Mount’s Bay House, watching the carriages and the pony carts go by.” (at 133)

Another advocate then practising at Johannesburg was J C Smuts, then as Nathan reports, a young advocate aged twenty-seven who occupied chambers with one Cleaver at Marais Court, There are other references to Smuts in the autobiography. He tells of receiving a letter from Smuts, the State Attorney, asking him to prosecute on circuit at Ermelo and Carolina. The date does not appear but it must have been about 1898. Nathan goes on to say:

“Prior to going on circuit, he asked me to visit him at his house, and I was hospitably entertained by him and Mrs Smuts. He enlarged on Kant, then among his favourite authors, and on the merits of Cape wines, for which he predicted a great future:”

Of Smuts’s qualities as a lecturer to law students and as an advocate, see further J Hayman Smuts as a Lawyer: An Intimate Study by one of his Pupils (1950) 67 SALJ 339, largely reproduced by Ellison Kahn – Law, Life and Laughter at 235. From the article it appears that largely because of his anti-Rhodes attitude Smuts had scant success while practising at Johannesburg; but it was otherwise after the signing of the Treaty of Vereeniging in May 1902,when according to Hayman work poured in on him and he held his own against such worthy opponents as “Leonard, Curlewis, Ward, Gregorowski and Esselen”. It is worthy of note that Smuts proposed the resolution that the Bar offer no opposition to the application of F E T Krause for his admission as an advocate. (See Bar Stories under the heading “F E T Krause”, elsewhere in this issue – Editor).

During the war Nathan betook himself to Cape Town. He apparently had scruples about taking up arms against the Government to whom he had sworn allegiance when admitted to practise as an advocate, although his sympathies were clearly with the British side. Nathan was of course a prolific writer of textbooks including his four-volume work, The Common Law of South Africa that apparently sold well at the time but is now held in little regard. A review thereof by J C Smuts appeared in 21 (1904) SALJ at 305. The review was on the whole kindly if somewhat patronising, albeit some comments of the author earned from Smuts a devastating rebuke for his audacity. And the following passage from the review is perhaps not altogether flattering:

“The public will be grateful to Mr Nathan for not having followed the advice of Horace and withheld this work from publication because of a too critical or fastidious taste.”

Pro Deo Defences

Another advocate subsequently to become well-known as a politician was C F Stallard, of whom Nathan writes in his autobiography that he appeared in uniform as a Sergeant Major to prosecute Dr Tom Visser, Johannesburg’s First Medical Officer of Health, on a charge of subversion before a Court Martial after the Boer War. Stallard was for many years leader of the Johannesburg Bar. N E Coaker, in (1971) 88 SALJ 277, refers to Stallard having defended pro Deo persons charged with murder and other grave offences after the Rand strike, persons with whom Stallard, the arch-conservative, could have had little sympathy. Coaker writes:

“It was quite unsuitable that such cases should be defended only by the most junior members of the Bar who were then taking cases pro Deo. At this time it was Stallard who, with his characteristic courage and sense of propriety, gave an impressive lead to the senior and established members of the Bar in appearing in these cases, and so overcame whatever reluctance there may have been to take on such arduous work without fees, or with only nominal fees, acting in a very unpopular cause.”

Stallard lived to be more than a hundred and on his hundredth birthday the Johannesburg Bar presented him an illustrated address which is reproduced in this article. Further as to Stallard, see Ellison Kahn – Law, Life and Laughter at 250-255. It may be surmised that Stallard was the lone dissenter to the resolution regarding the admission of Krause.

Nathan gives the names of those present at a dinner given by the Johannesburg Bar at the New Club to welcome Sir William Smith, the first judge to sit in the Rand District (afterwards High Court). They were:

Sir W Marriott (in the chair); the Hon J W Leonard, KC; Seward Brice, KC; J G Auret; A E Balfour; P M Beyers; C W Bovill (possibly Judge’s secretary); F Cliffe; A L Cohn; E W Douglass (Crown Prosecutor); J D Forster; G Hutchinson; M Campbell Johnson; P J McDonnell; Emile Nathan; Manfred Nathan; C F Rorke (Registrar of the Court); S Solomon; C F Stallard; J Stratford; I P van Heerden and C A Wentzel (then Chief Magistrate). (at 209)

English Silks

Earlier (at 195) Nathan relates that Sir William Marriott and Seward Brice, KC were English Silks who came to Johannesburg to practise, the latter being a Chancery Barrister, who he says was not suited to the rough and tumble of ordinary Bar work in Johannesburg. Of J G Auret, Nathan writes:

“… but for certain failings, (he) would have become a High Court Judge”. Emile Nathan (a cousin of the writer Manfred) relates an anecdote concerning Emile wearing a red waistcoat in the Court of Chief Justice Innes who flabbergasted Emile by observing that he was unable to see him. There is a portrait of Saul Solomon in the Johannesburg Bar Common Room. Of him and other illustrious members of his family, see, Ellis on Kahn, op cit at 238. James Stratford became a judge of the Transvaal Provincial Division in 1921, Judge of Appeal in 1927 and Chief Justice for the years 1938 and 1939.

Elsewhere in this article there is reproduced a page from the Minute Book dated 29 October 1924 constituting a list of members of the Johannesburg Bar in order of seniority. The most senior silk, G T Morice KC, had been a judge in the Transvaal Republic before the Boer War. Of him Nathan relates that while going on circuit to Carolina they passed Lake Chrissie, which was swarming with wild duck. The Judge, who had a shotgun with him, according to Nathan, proved himself a poor shot. “Once” says Nathan “he got within 120 yards if a flock of about 400 duck, but failed to hit anything”. (at 152) Nathan goes on to relate the following anecdote:

“When we got to the Carolina Hotel that night the judge suggested drinks, and we went into the bar. He called for a beer, and I followed suit. He laid down sixpence for his beer, and I, seeing there was no alternative followed suit. However, this may have been second nature, as Morice came from Aberdeen.”

Morice would appear to be the first of a series of Johannesburg silks who became legendary for their stinginess and at the same time achieved notable eminence in the profession and in some instances on the Bench.

At the same page Nathan relates that after the Boer War Morice practised again at the Bar “and made most amusing after-dinner speeches to his fellow barristers, lugubriously depicting his briefless state”.

From Bench to Bar

There seems to have been no difficulty about former judges coming back to the Bar in those days. After his celebrated dispute with President Kruger, Chief Justice Kotze practised at the Bar and his conduct of a case for the defence of a person charged with contravening the Morality Law is criticised by Nathan who says the following:

“The members of the profession were considerably surprised when Kotze undertook the defence; and more so at his manner of conducting it. In fact, there were severe animadversions on the method adopted by the defence. Defending counsel made most improper and unfounded attacks on Cleaver, who prosecuted; and even went so far as to make insinuations against the State Prosecutor’s private character – insinuations easy to make when regard was had to the type of witness necessarily called for the prosecution. It was the one blot on the otherwise admirable career of the ex-Chief Justice. I cannot help feeling that his acceptance of the defence brief was an error of judgement. In the end it all recoiled on the accused, who was sentenced, I think, to seven years’ hard labour. The case had the excellent effect of at least putting an end to the open immoral traffic which had flourished for several years in Johannesburg. It was driven underground.”

Gregorowski J who sentenced the Reformers also returned to the Bar at Pretoria, apparently to the chagrin of the members of the Pretoria Bar with whom he competed for motion court briefs.

Leopold Greenberg

The list does not include the name of Leopold Greenberg, presumably for the reason that he was to be made a judge on 1 November 1924. The renown earned by so many on the list as great advocates and great judges make further comment in this article on them unnecessary. However, it is of interest to learn from the archive more about William John Hiscock, of whom it may be said that he was a practical lawyer engaged in the routine work of the courts. As to the discovery of Hiscock’s diary, see Professor A A Landman 5 (1992) Consultus 151.

Minimum fee

In an endeavour to prevent unfair competition, minimum fees had been laid down. Even then there were murmurings about this constituting a restrictive practice and making it difficult for members of the Order to compete with those who practised without belonging to the Order. In the Minute Book there is a letter from Advocate Hiscock dated 30 July 1925 pointing this out. In his letter, Hiscock refers to remarks made at a meeting of the Bar that a member of the Society was receiving more than his fair share of work. He suggested that because of the “hard times, the fees in the tariff should be lowered”. At the bottom of the letter there is a note by Morice KC that although he is not personally affected by the state of things described by Hiscock he agrees, with Hiscock that for the protection of members of the Society certain reductions should be made in the tariff, because it appears to be to the advantage of an advocate with a small practice not to belong rather than to belong to the Society. The kind of undercharging against which the Bar set its face seems to be related mainly to divorce and motion court work.

Hiscock did indeed resign from the Society on 9 April 1926, probably for the reason given by him, but subsequently rejoined it. In his article Professor Landman refers to the bequests by Hiscock to the Johannesburg Bar. In amplification thereof, the following extract from the Minutes of a Meeting of the Bar Council held on 21 April 1961 is of interest:

“A letter from Messrs Webber, Wentzel, Hofmeyr, Turnbull & Company in which was enclosed a cheque for the sum of R1 230,17 was, put before the meeting. The Cheque represented a bequest to the Bar Council by the late William Hiscock who in the joint will of himself and his wife provided the following:

“We give and bequeath the sum of £600 free of succession duty to our said Administrator in Trust that he shall … on the death of the survivor of us pay the said sum of £600 to the Johannesburg Bar Council to be utilised by the Council as it is in its discretion may decide.”

It was stated in the letter that a certain amount of the interest accrued on the sum of £600 was mistakenly paid to the heirs and the attorneys wished to know whether the Bar Council wished them to endeavour to obtain a refund from the heirs concerned.

It was agreed that the cheque be paid into the Bar Benevolent Fund and that Messrs Webber, Wentzel, Hoffmeyr, Turnbull and Co., be informed that the Council did not desire them to obtain a refund from heirs in respect of the interest that has been paid to them. It was further agreed that enquiries should be made as to whether the heirs did not perhaps have prior claim to the money left to the Bar Council.

Hiscock had in earlier years received a grant of £3 per month from the Bar Benevolent Fund – hence perhaps his bequest.

Discipline

There is an account in the Minutes of an investigation into a complaint against an advocate, E Turner on 28 May 1921. The charges against him included charges that by arrangements with attorneys he did not charge a fee on the return days of restitution orders or for drawing the declaration. Turner is quoted as having said in evidence the following:

“ln Divorce actions in scores of cases since 1 have been a member of the Society I have signed declarations without brief to draw and without charging fee. I don’t think that is unprofessional conduct. I don’t think it is a quibble to distinguish between drawing and signing. I am relying on the rules. I have signed declarations in restitution actions without reading them. So long as there is no agreement to charge no fee I don’t think there is any breach of the rules.”

The resolution of the Local Bar Council was that a recommendation be made to the General Council of the Bar that advocate Turner be expelled from the Society.
With a view to avoiding unseemly competition among members of the Order, rules were passed to regulate the conduct of advocates going on circuit. At a meeting on 10 November 1907 a letter was discussed from Lyn Evans referring to the fact that in the constitution of the Order there were no rules with regard to circuits. He asked for a ruling on the following:

“A proceeds to a Circuit Town, and arrives there before the Judge and other members of the Bar, thereby obtaining any work there may be for that Circuit and prejudicing the interests of brother barristers.”

The opinion of the Council was that advocates who go on circuit should travel together so that there should be equality of opportunity in respect of work to be obtained. It was also decided that a circuit organisation should be formed and the Rules framed.
In due course this came about. It is of interest to note that as late as 1918 a complaint was preferred against advocate Franks that he had arrived at a Circuit Town before the rest of the Bar. The following appears in the Minutes:

“6. Complaint in re Franks. This was a complaint brought against Franks by Roberts under Rule 29, Subsection 4 and Circuit Rule 4 Local. Complaint was: Circuit was due to commence at 9am on Thursday October l8th. On Wednesday the 17th Franks went to Potchefstroom on an avowed “foraging expedition” leaving again before the Circuit Court arrived. Later on he went down and conducted a defence before the Circuit Court at Potchefstroom. After considering the letter from Franks it was resolved that no blame whatsoever attaches to Franks.”

At a meeting of the Bar Council held on 13 July 1907 the following is recorded:

“Complaint by J W Jamieson Esq against Advocate Löwenthal. After discussion, the Secretary was instructed to write to Mr Löwenthal informing him that the Council were of opinion that it was the duty of Counsel defending a prisoner pro Deo in the absence of an attorney to personally see the prisoner before the trial and ascertain what his defence was, and also that the Council regarded Mr Löwenthal’s remark to the Court at the end of the Trial as peculiarly unfortunate.

The Secretary was further instructed to write to Mr Jamieson thanking him for bringing the matter to the notice of the Council, and informing him that the Council had suitably dealt therewith.

Disputes between attorneys and counsel

The everyday business of the Council largely consists of disputes between attorneys and counsel as to fees and in the enforcement of the ninety-seven-day rule. In addition to having incurred the displeasure of Innes CJ for wearing a red waistcoat, Emile Nathan fell foul of the Bar Council because he accepted a negotiable instrument for fees. In the Minutes of a Meeting of the Council held on Saturday 8 February 1908 in “Mr Leonard’s Chambers” the following appears:

“Disputes.

(a) Advocate E Nathan & Attorney A MacInnes. A written document dated Oct 14th 1904, on which was written “Good for debtor Emile Nathan for Forty Pounds Stg, value received, (signed Allan MacInnes)” was produced.

The Council held that Mr Nathan had infringed rule 6 in accepting the above document in payment of his fees, and that as he had adopted his own method of recovering his fees, the Council could not now assist him recovering the same from Mr MacInnes.

Fusion

On 29 July 1907 the following was resolved:

“Resolution of the Johannesburg Bar dated July 29th 1907. Instructing the Bar Council to communicate with the Bars of the Cape Colony, the Orange River Colony, and Rhodesia with a view to ascertaining their opinion on the subject of the amalgamation of the professions of Advocate and Attorney, and requesting their co-operation in maintaining the divisions in the professions as heretofore.”

On 10 August 1907 the following appears:

“Honourary Secretary was instructed to collect all possible information from all quarters as to the division and amalgamation of the Professions and more particularly to communicate with the Secretary of the Bar Council in England. Thereafter on 8 February 1908 letters in response were read, appreciation expressed therefor and the Honourable Secretary (G Wille) and F A Lucas were appointed as a sub-committee to prepare a case against amalgamation.”

The new Supreme Court at Von Brandis Square

The outcome of joint action taken by the Bar and the Side Bar with a view to persuading the Government not to erect the new Supreme Court Building at Von Brandis Square came to nothing. The Bar started on the wrong foot. At a meeting held on 17 April 1908, the Secretary, G Wille, reported that at a meeting between the Honourable the Minister of Public Works, Hartog representing the Council and Messrs Mulligan and Bowker, with reference to the plans for the proposed new High Court building, the Secretary had incurred the Minister’s grave displeasure for not having convened a representative gathering of members of the Order to meet the Minister. Laconically, the Council decided that the matter called for no further action. (The Minister was V E P Solomon.)

Thereafter there was a joint meeting between representatives of the Law Society and the Bar in the Bar Common Room at which it was agreed that the proposed site was undesirable and a sub-committee was appointed to see the Minister. However, on 5 June 1909 it was reported that the Government was not prepared to reconsider the decision and therefore it was useless for a deputation to wait upon him.

What precisely the objection was to the location of the new law courts does not appear – perhaps it was because of its distance from Sauer’s Buildings, which was at the corner of Market and Loveday Streets. (See the notes at the end of this article – Editor)

The main concerns of the Bar Councils over this period were to prevent unfair competition, to maintain standards in the conduct and professional competence of members and to seek to prevail upon Government not to appoint unsuitable members to the Bench.

F W Beyers

The opposition of the Bar to the appointment of F W Beyers to the Appellate Division is well documented. See: Ellison Khan, Law, Life and Laughter at 6 sv. Frederick William Beyers. As appears from Khan’s entry (op cit) judges of appeal Stratford and Wessels were also disconcerted by the appointment – which was of a cabinet minister directly to the Appellate Division.

At a joint meeting of the Bar Council and the Council of the Transvaal Law Society, a resolution was passed condemning the Legal Professions Bill. This was not all so far as the Bar was concerned. The minutes show that after the withdrawal of the members of the Council of the Incorporated Law Society, the following further resolutions were passed:

“A. That the Bar Council deplores the action of Mr F W Beyers in introducing legislation vitally affecting the status of the profession to which he belongs without any previous notification or consultation with the governing body of that profession: such action being in its opinion totally at variance with the spirit and traditions of the Bar”

and, “That the Honourable Secretary be directed to communicate this resolution to Mr Beyers forthwith,”

“B The attention of the Bar Council having been drawn to the fact:

(a) that Mr Beyers has his chambers closely connected with the offices of the firm of “Steytler, Beyers and Grimner”, formerly “Fredgold, Steytler and Beyers”;

(b) that the name of “Beyers” occurring in the name of the firm represents Mr F W Beyers, and also to rumours that Mr F W Beyers has not wholly severed his connection with the said firm, and that he has a right to return to the said firm.”

The Minutes go on as follows: “The Attorney General then joined the Council and took the Chair, and approved of the Resolution “A”. The Attorney General thought the Resolution “B” should not be communicated to Mr Beyers until the Legal Professions Bill had been decided in Parliament to which the Council agreed. The Hon. Secretary was instructed by the Council to communicate to Mr Beyers the Resolution passed by the Joint Meeting of the Councils of the Bar and of the Incorporated Law Society.”

Those present at the meeting were:

Bar Council

J W Leonard KC (in the chair), E Esselen KC, M R Greenlees, A E Balfour, C F Stallard, J Stratford, D Brewis (Hon Treas) and G Wille (Hon. Sec).

Council of the Inc Law Society

J Mackintosh, F J Lunnon, N L L Feltham, C A Wentzel, P I de Kock and M G Nicholson (Secretary).

In the Minutes of the next meeting of the Bar Council held at Leonard’s Chambers, Johannesburg on 10 August 1907 it is recorded that a letter from Mr F W Beyers was read. We are left in ignorance as to what was contained in it. However, a resolution was then passed that inasmuch as the Legal Professions Bill had been rejected in the Legislative Assembly, the Resolution “B” passed at the previous meeting should now be communicated to Mr F W Beyers, and that he be advised by the Secretary when the next meeting of the Council would be held.

At a meeting of the Council held in the Supreme Court Library on 11 November 1907 the following is recorded:

“Two letters from Mr Beyers were read, both dated the 14th August 1907; the first one in reply to the Resolution “B” sent to him by the Bar Council, denied that Mr Beyers had ever done anything derogatory to his position as an Advocate: The second was a notice that Mr Beyers had had his name removed from the roll of Advocates. Mr Beyers had since given notice that he would apply to the Supreme Court on November 19th 1907 for readmission as an Advocate.

Mr Balfour moved “That no action be taken by the Bar Council opposing the application of Mr Beyers for readmission as an Advocate; that after his readmission he be referred to the letter written to him by the Hon. Secretary on August 12th 1907 with a suggestion that he should meet the Bar Council and consider the same.

The Attorney General was opposed to the resolution. He thought no charge should have been made except upon the strongest evidence, which was not present in this case. Though Mr Beyers did not specifically deny the charges made, yet his letter covered those charges and the Bar Council should accept his denials.

Messrs. Duxbury and Tindall spoke in favour of the Resolution, which was carried.

The Council were further of opinion that upon a construction of Constitution 7(B), Mr Beyers had never ceased to be a member of the Order of Advocates, as the Council had never given a “direction”.

The Attorney General at that time was J de Villiers, then a member of Botha’s cabinet in the Transvaal, subsequently to become Judge President of the Transvaal Provincial Division, Judge of Appeal and Chief Justice. See of him, Khan op cit. at 39 sv. Jacob Abraham Jeremy de Villiers.

The Bar and the Colour Bar

The first salvo by the liberals was fired at a general meeting of the Bar held on 4 September 1920. The minutes record the following:

“Proposed by Mr L Blackwell:

that in the opinion of the Johannesburg bar the rules of the Society of Advocates should be amended so as to abolish the discrimination against non-European advocates existing in the rules.

In addition to the proposer and seconder, Mr Nathan KC, P Duncan, R Feetham and K C G Alexander spoke in favour of the motion.

F Adler, L Greenberg, J Van Hoytema KC, R F MacWilliam, F C Grey and Van Soelen spoke against the motion.

Voting 9 for 13 against.”

Some three years later, on 23 October 1923, notice was given of a resolution to be moved at the annual general meeting to be held on 10 November 1923 deleting from clause 3 of the Constitution the words “Membership of the Society shall be confined to white persons”. The signatories to the notice were:

Leslie Blackwell, P Millin, F W Lucas, O D Schreiner and Saul Solomon.

The minutes of the general meeting of 10 November show that sixteen members voted in favour of the motion and thirteen against. Speakers in favour of the motion were, in addition to the proposer Saul Solomon, and the seconder Blackwell, P Millin, Greenberg and M Nathan KC. The speakers against the resolution were, W Peirson KC, MacWilliam, Hartog, Nixon and Stallard KC.

Following on this vote there was a requisition for a special meeting of the members “for the purpose of rescinding or amending the resolution, carried at the annual general meeting”, on three grounds which were specified. The first ground was that the meeting was not properly convened in terms of the rules; the second ground was that by reason of the importance of the matter, a specially convened general meeting should have been convened; the third ground was that:

“(iii) the forgoing resolution does not reflect the opinion of the majority of members practising in this division;”.

The signatories to the resolution were:

“W A Currie, Russell MacWilliam, G Hartog, L Adler, C Blakewell, Menzies Murray, J G van Soelen and A C Thompson.”

A special general meeting was duly held, but the motion was withdrawn after E Nathan had moved the adjournment of the meeting on the ground that even fewer members were present than at the meeting on 10 November 1923. Nonetheless, the following “ruling” by the chairman is recorded:

“The Chairman ruled that the Resolutions taken on the proposed amendment of Clause 3 of the Constitution by the Pretoria and Johannesburg Bars resulted in a majority against the proposed amendment by the votes of the Division as a whole, and that the original motion had consequently lapsed.”

The offending clause must have been deleted subsequently. We hope that the relevant records will be found.

Notes:

1. After going to press the following note was received from Selvan SC: “Judge Peter Schutz who read an earlier draft of this article writes me as follows: ‘I think you have missed the obvious as to what the objection was to moving the law courts to Von Brandis Square. The old court was on Van der Byl Square only a block or two from the Rand Club. What better reason for objection could there be? These men were far-seeing. Today the club is just that much too far for convenient use.'”

2. For an interesting article on the Supreme Court Building see J H Liebenberg (1970) Codicillus 34.

Consultus
Volume 7 No 2
October 1994

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