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Luke Malaba, Zimbabwe's Chief Justice

Opinion

Zim judiciary and chief justices – from the pioneer Bisset to Malaba

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The NewsHawks continues with a series of articles written by Johannesburg-based Zimbabwean lawyer Tererai Mafukidze about the history and politics, as well as the dynamics of appointing a chief justice in Zimbabwe, tracing the genesis of the issue back to 1927, five years after Southern Rhodesia rejected in a referendum joining the South African Union, when the first head of the judiciary was installed.  Mafukidze also did the research on the trial and execution of Mbuya Nehanda which we carried recently and then used parts of it in our story last week.

John Murray

When Robert Tredgold was elevated to the Federal Chief Justice, it necessitated the appointment of a new chief justice for Southern Rhodesia.  Once again the country imported a chief justice.

This time it was during Garfield Todd’s administration. The then Minister of Justice and Internal Affairs ARW Stumbles went to interview potential candidates in South Africa. As Stumbles records in his memoirs: “It was considered by cabinet that it might be advantageous to have some other person from outside Rhodesia.”

Murray was a High Court judge in the Transvaal in South Africa when he was appointed to be Chief Justice of Southern Rhodesia. Before being appointed to the bench in South Africa, Murray had practised at the Bar in Pretoria for some 24 years. He was a High Court judge in the Transvaal from 1937 to 1955.

Murray was appointed by Sir Peveril William-Powlett on 1 August 1955 to replace Tredgold. He also acted as governor when the incumbent was away.

Murray retired in 1961. The job of chief justice had been offered to him at the age 67 when he was already two years above the retirement age of Rhodesian judges. He held the post until he retired at the age 73. He is possibly the oldest person to hold the position of chief justice.

When Murray was appointed some felt that Judge Ralph Morton should have been elevated instead of the importing Murray. According to Christie: “Ralph had not improved his chances by giving one or two very lenient sentences to farmers who had assaulted their labourers, but the situation was not easy.”

Quite an amazing story that a Rhodesian judge could have been cost the Chief Justice position on account of European justice. This was probably an important consideration for the liberal administration of Garfield Todd.

Thomas Hugh William Beadle

The next Chief Justice was Sir Thomas Hugh William Beadle better known as Hugh Beadle. Beadle had practised at the Bulawayo Bar from 1930-39 before entering politics. He was a member of the Southern Rhodesian Legislative Assembly from 1939 to 1950. He also saw action during the Second World War. During that time he was appointed the parliamentary secretary to the Prime Minister Godfrey Huggins and this necessitated that he be recalled from the battle front.

Following in the footsteps of some of his predecessors, between 1946 and 1950 he was a soldier and the minister of Justice, Internal Affairs, Education and Health. He appointed himself a high court judge in 1950.

After that, he was appointed Chief Justice in 1961 and continued in the role until 1975 when he reached the now applicable retirement age of 70. Instead of retiring, Beadle convinced the government of Ian Smith to extend his term by two years. This precedent was dangerous.

When Unilateral Declaration of Independence (UDI) was declared in 1965, Beadle was the Chief Justice and also could act as the deputy governor. He was also a Privy Counsellor, which required him to be loyal to the Queen. In the heat of the rebellion, Sir Humprey Gibbs remained the governor and loyal to the Crown. Against pressure from the rebellious government, he refused to resign.

Beadle moved into Government House which was the official residence of the governor and shared quarters with him. Beadle, despite holding the position of chief justice, was deeply involved in trying to resolve the political crisis.

Justice Bennie Goldin in his book, The Judge, the Prince and the Usurper, describes Beadle as having acted as an adviser, negotiator and “very often as no more than as the only suitable messenger between the parties.”

Beadle was the traditional legal adviser to the governor. He remained involved in all the negotiations between the governor, Rhodesian prime minister Ian Smith and the British government of Harold Wilson. He even attended the talks held aboard the HMS Tiger.

On return to Salisbury (now Harare), Smith’s cabinet was considering the terms of settlement proposed by the British government. Beadle was smuggled into the cabinet meeting several times so that he could explain the effect or meaning of some of the proposals.

His diaries, which Goldin accessed, show that he was probably the most politically involved chief justice the country has ever had — and he relished in the role. Notwithstanding this role, Beadle as chief justice went on to sit in court decisions that decided the legality of UDI.

By normal legal standards, Beadle should have been disqualified from sitting as a judge in case that determined the legality of UDI.

In February 1968, Beadle, within 48 hours of deciding a case that involved the legal issues surrounding legality of UDI and the power of the Queen over Rhodesia, was asked to leave Government House. He was also fired as the governor’s traditional legal adviser.

Beadle moved back to his own house in Bulawayo. The governor subsequently resigned when the 1969 constitution created a republic.

Arthur Bottomley, who was secretary of state for Commonwealth Relations and subsequently became minister of Overseas Development in Wilson’s British government, described Beadle as the “evil genius of the Unilateral Declaration of Independence”. In retaliation for the court decisions Beadle made recognising Smith’s government, he was unwelcome in London and the Labour government even tried to have him removed as Privy Counsellor. He was considered a traitor to the Crown.

Judge John Fieldsend had resigned on 4 March 1968 after disagreeing with his colleagues on the Appellate Division in their decision on the legality of UDI. In a twist of fate, he was to return in 1980 as Zimbabwe’s first post-independence chief justice.

With Fieldsend’s resignation an opportunity arose for the appointment of Julian Greenland as a High Court judge on 1 May 1968. He was the first post-UDI judicial appointment. On 12 August 1968, another judge, Justice Dendy Young, citing the UDI crisis of legality, resigned and left for Botswana where he was appointed chief justice.

The Smith government did not amend the constitution to make this Beadle extension possible. Beadle simply got an acting chief justice appointment. For the following two years from 1975 to 1977, he carried the title of Acting Chief Justice. The extension of his term was reportedly done with the support of Justice Hector Macdonald and Justice John Lewis, the son of Vernon Lewis. Either could have been appointed chief justice in 1975.

Beadle finally retired in 1977, but continued to be appointed an acting judge of the High Court until 1980. He died in Johannesburg in early 1981.

In his autobiography, Testimony of a Rhodesian Federal, Greenfield, the former minister of Justice during the Federation, speaks about his own appointment to the bench. He was appointed to replace Fieldsend who had resigned after the UDI decision. He says he accepted the judicial appointment with extreme reluctance. Greenfield was the fifth minister of Justice to move from cabinet to the bench.

He records this as follows: “I was sworn in on 1st May 1968. When welcoming me to the bench, the Chief Justice (Hugh Beadle) remarked on the fact that I was the fifth former minister of Justice to be elevated to the bench, but the only one of the five who had not appointed himself. I mention this because a scurrilous article appeared in The Times, signifying that as I had not fared very well since the dissolution of the Federation. I had leapt at the opportunity provided by Fieldsend’s departure to get myself a job.”

In fact, as recorded by Claire Palley in her book The Constitutional Law and History of Southern Rhodesia 1888-1965, four of the country’s chief justices were appointed to the bench as puisne judges having beforehand resigned their offices as minister of Justice. In fact, the ministers appointed themselves to the bench. The four ex-Justice ministers were Robert Hudson, Vernon Lewis, Robert Tredgold and Hugh Beadle.

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