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. We are 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.
SOUTHERN Rhodesian had achieved Responsible Government (self-government) in 1923. This ended the rule of the British South Africa Company (BSAC). Lawyer Charles Coghlan became the prime minister.
In 1927, the office of chief justice was created and Southern Rhodesia’s first Chief Justice Murray Bisset was appointed to the judicial crease by the Colonial Administrator, Sir John Chancellor. He was a gifted test cricketer who captained South Africa before moving to Southern Rhodesia .
Bisset had fought in the Anglo-Boer War. The first chief justice was therefore a soldier or war veteran. He subsequently became a South African politician. In 1914, Bisset had been elected to the House of Assembly as South African Party representative for South Peninsula, holding his seat until his retirement from politics in 1924.
Following his retirement from politics, Bisset moved to Southern Rhodesia, where he was appointed a senior judge in 1925 before serving as chief justice of Southern Rhodesia from 1927 until his death in 1931, having been born in 1876.
Bisset also served as acting Governor of Southern Rhodesia in 1928 and was also serving as governor again in 1931 while the governor Cecil Hunter-Rodwell was in England, when he died in Salisbury on 24 October 1931.
So Rhodesia’s first chief justice died in office. He was not to be the last.
It is important to state that the tradition of involving chief justices in matters that were political continued. Under the 1923 constitution, a governor was the representative of the Crown. He was responsible for appointing the prime minister. He generally appointed the leader of the political party that was in the majority in parliament as premier.
The governor also appointed the chief justice on the advice of the prime minister. In the absence of the governor, the chief justice became the acting governor. Though the acting governor did not exercise the same influence as the governor, on occasion they had a say in political matters.
Alexander Fraser Russell Hunter-Rodwell appointed Alexander Fraser Rusell to replace the deceased Bisset as chief justice in 1931. Russell was born in South Africa and studied law in England before he was appointed a judge of the High Court of Southern Rhodesia.
In 1939, he was appointed the president of the newly-created Rhodesian Court of Appeal. As required of the office of chief justice under the Southern Rhodesian constitution, while holding the office of chief justice, Russell acted as governor from 1934-35, 1936-37 and 1942.
This overlap of judicial office and executive functions had commenced with Leander Starr Jameson, Rhodesia’s first leader, and with the first judge, Justice Vintcent.
Russell remained in office from 1931 until 1943.
Robert Hudson Coghlan, himself a lawyer, was the first prime minister after Southern Rhodesia attained responsible Government in 1923 — which ended BSAC rule. Coghlan founded the Harare law firm Coghlan, Welsh and Guest.
Soon after the elections in 1923, Coghlan appointed Major Robert Hudson, a veteran of the First World War, as Attorney-General. This appointment shocked many as Hudson had not campaigned for Coghlan’s party.
The office of Attorney-General changed to that of minister of Justice under Hudson. He combined this role and that of minister of Defence in that government. Hudson had been born in South Africa in 1885 and practised law at the Cape Bar before joining the Bulawayo Bar in 1910.
Hudson was yet another soldier. He had fought during the First World War.
Hudson subsequently joined the Rhodesia Party and successfully stood for the electorate of Bulawayo North in the Southern Rhodesian Legislative Assembly election in 1924. After the election, Hudson was appointed minister of Justice (as the position of Attorney-General had been renamed) and minister of Defence. Four years later, Hudson was re-elected.
In 1933, he resigned from the Legislative Assembly and was appointed a judge of the High Court. In 1943, Sir Evelyn Baring, who was Southern Rhodesia governor from 1942 to 1944, appointed Hudson to the position of chief justice replacing Russell. He retained the position until his retirement in 1950 after attaining the age of 65.
From 1944, Baring became British High commissioner to Southern Africa until 1951 and then from 1952 to 1959 he was Governor of Kenya, and played a critical role in suppressing the Mau Mau uprising.
Baring was a well-travelled man. Baring followed in the footsteps of his father, the famed “Maker of Modern Egypt” — Evelyn Baring, 1st Earl of Cromer .
Baring Junior had graduated from the University of Oxford with First Class Honours in modern history before serving in the Indian Civil Service. He then joined Britain’s Foreign Office, where he was sent first to Southern Rhodesia before being posted in South Africa as High Commissioner.
In 1949, as British High Commissioner in South Africa, Baring played a key role in preventing Botswana’s founding president Seretse Khama from becoming its king.
He recommended this to the British government on the grounds that Khama had wed a white English woman, Ruth Williams, and that the inter-racial marriage had caused tensions and opposition by apartheid South Africa, a neighbouring state.
Working in close collaboration with Percivale Liesching, permanent under-secretary of State for Commonwealth Relations at the time, Baring persuaded government ministers not only that Khama should be prevented from becoming king, but that he should be exiled from his country.
Baring’s role in what became known as the Seretse Khama affair is documented in Colour Bar: The Triumph of Seretse Khama and His Nation by British historian Susan Williams.
Of particular relevance to the currently blocked Chief Justice Luke Malaba issue is the fact that Hudson believed no judge should serve beyond the age of 65.
As Prof RH Christie recalled: “The first Chief Justice I knew was Bob Hudson, who was in the process of retiring. He had insisted, with all the very considerable authority he had at his command, that in a hot country like Rhodesia no judge should remain in office beyond 65 because his mental faculties would be exhausted and he would be incapable of sustaining the workload.
Nobody agreed with him, but he had his way, started drawing a pension at 65 and promptly became chairman of Standard Bank and a number of other companies, starting a large and lucrative business career.”
After Hudson came Vernon Lewis who was appointed chief justice in 1950. He ranks as the man who occupied the seat of chief justice for the shortest possible time. He died within a week of his appointment. He was appointed chief justice on 16 May 1950 and died on 22 May 1950 — becoming the second chief justice to die in office.
Being European, one would expect that no one suspected that juju hastened his death. Christie records that: “Many old Rhodesians maintained that this was because he lived in Rumbavu Park, a house that was said to be haunted and to bring bad luck to its owners. Several other owners had, and have since, died prematurely.”
Like Hudson before him, Lewis was minister of Justice and Defence of Southern Rhodesia from 1933 to 1936 before he appointed himself a High Court judge in 1936.
Lewis was married to Ethel Amy Jameson, daughter of Leander Starr Jameson.
Jameson, Cecil John Rhodes’s right-hand man, was the first Chief Magistrate of Southern Rhodesia.
The son of Lewis, John Vernon Radcliffe Lewis, was also a Rhodesian and Zimbabwean judge.
In 1950, Robert Tredgold succeeded the unfortunate Lewis as Chief Justice.
Tredgold was born in Bulawayo to Clarkson Henry Tredgold and Emily Ruth Moffat. His father had served for many years as the Attorney-General of Southern Rhodesia.
He had been appointed a judge of the High Court in the 1920s and retired in 1925.
His mother Emily Ruth Moffat was missionary royalty. She was the daughter of the missionary John Smith Moffat. This made her the grand-daughter of the famous missionary Robert Moffat of Kuruman Mission – Ndebele King Mzilikazi’s friend.
John Moffat, like his pioneering father Robert and mother Mary, was a British missionary and imperial agent. John Moffat’s sibling married the missionary explorer David Livingstone. John Moffat was involved in the British colonial expansion into Matabeleband. He started the first mission in Matabeleland North at Inyathi in 1859. Hence, it is the oldest formal educational institution of any kind in Zimbabwe.
In 1865, he took over the running of his father’s mission at Kuruman. In 1879, John Moffat resigned from the London Missionary Society and joined the British Bechuanaland colonial service.
Now in colonial service, Rhodes in 1888 sent him to Matabeleland to use his father’s reputation to persuade Lobengula to sign a treaty of friendship with Britain.
This led to the Rudd Concession which was purportedly about mining rights. Moffat later regretted his role and the deception of Rhodes on Lobengula which led him to sign the concessions. He fell out with Rhodes.
The footprint of the Moffats remains deeply engraved on Zimbabwe’s history. John Moffat’s grandchild Howard Unwin Moffat became Southern Rhodesia’s second prime minister as he succeeded Coghlan upon his death in 1927. Howard married Marion Meikle who was a sister of the three Meikle brothers who founded the Meikle’s business empire in Rhodesia.
Tredgold had similarly had a political career before getting himself onto the bench. He was yet another soldier and saw action during the Second World War. It was during Tredgold’s time as Minister of Defence that the Second World War broke out.
He had been Member of the Southern Rhodesian Legislative Assembly from 1934 to 1943.
During that period, he served as Minister of Justice and Defence from 1936 to 1943. He also served as Minister of Mines and Minister of Native Affairs.
He was appointed a judge of the high court in 1943. He had resigned from cabinet due to differences with his colleagues over land policy for natives.
From 1955 to 1960, Tredgold served as Chief Justice of the Federation of Rhodesian and Nyasaland.
While Chief Justice, Tredgold also served as acting Governor of Southern Rhodesia from 21 November 1953 to 26 November 1954, and as acting Governor-General of the Federation of Rhodesia and Nyasaland from 24 January 1957 to February 1957.
He resigned in 1960. It is widely believed that he resigned due to his abhorrence of the Law and Order (Maintanance) Act which he considered a very repressive piece of legislation. He became a consistent critic of the legislation and other repressive laws passed to oppress black people.
When Tredgold resigned, some claimed he wanted to re-enter politics.
In his fascinating autobiography The Rhodesia That Was My Life, he records his reasons thus: “I had watched the build-up with something approaching agony. As a judge and as Acting Governor I had seen in practice the harsh effects of the earlier laws and, when the Law and Order Maintenance Bill was published, it was the last straw.
I foresaw that it would compel the courts to become party to widespread injustice and I let it be known that, if the government persisted with the main features of the Bill, I would resign my position as Federal Chief Justice.
(The Federal Court was also the Court of Appeal from Southern Rhodesia and, as such, would be compelled to adjudicate upon cases under the new laws.) I had expected that I should be consulted and given an opportunity to explain my principal objections to the Bills, but the government ignored my warning and proceeded inflexibly with the Bills. I resigned.”
Justice Julian Greenfield, a Rhodesian politician, cabinet minister and later on High Court judge, in his autobiography Testimony of A Rhodesian Federal, records the developments as follows:
“Not very long afterwards Welensky sent for me to say he had just had an interview with Tredgold who had informed him that he considered that Whitehead (Prime Minister) should resign and make way for a new government in Southern Rhodesia which he, Tredgold, would head. Welensky was to approach Whitehead and ask him to step down.
Welensky told Tredgold that he would inform Whitehead of the proposal, but could hold out no assurance that he would comply. It came to our knowledge that Tredgold had been persuaded by a group of men in Bulawayo to the extraordinary course I have related. Whitehead declined to resign, and within a few days Tredgold himself did so, informing himself beforehand.
He issued a press statement intimating his intention of entering active politics.
No general election was pending, and there was no split in Whitehead’s cabinet, so the public was mystified as to Tredgold’s plans. Apparently there was no plan, or no practicable one, because no action followed, and the movement fizzled out.
Unfortunately, the resignation of the Federal Chief Justice was naturally construed outside the Federation, and by enemies within, as reflecting a quarrel with the Federal Government, whereas the quarrel was with the Southern Rhodesia Government.”
Tredgold called this view the untruths spread by his enemies stating that he “never liked politics and had no desire to become again involved.” For his part, Tredgold states in his autobiography that he joined the bench as a kind of relief from the political dilemma he faced with the 1941 amendments to the Land Apportionment Acts:
“A possible way out of the dilemma appeared when, late in 1943, a vacancy occurred on the bench. It was difficult to fill it without going outside the country and I was one of the possible choices…Physical reasons had supervened ruling out the possibility of active service (during the Second World War). The prospect of a useful political career had faded. So I became a judge.”
At the Federation level, the South African import John Clayden became Federal Chief Justice. The Federal Court wound up soon afterwards with the end of Federation in December 1963.
To be continued…
*About the writer: Advocate Tererai Mafukidze is a member of the Johannesburg Bar. He practises with Group One Sandown Chambers in Sandton, Johannesburg. His practice areas at the Bar are: general commercial law, competition law, human rights, administrative and constitutional law.
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