KOTZÉ, JOHANNES GYSBERT

Johannes Gysbert Kotzé [Sir John Gilbert] (November 11, 1849-April 1, 1940), lawyer and judge, was intimately involved in the judicial and political affairs of the South African Republic during the crucial final three decades of the 19th century.

PHOTO CAPTION: Johannes Gysbert Kotze. SOURCE: EA Library

Kotzé qualified as a barrister at the University of London and, shortly afterwards, on August 18, 1874, was admitted to the Cape bar as an advocate. After less than three years practice in that capacity, President T. F. Burgers offered the 27-year-old advocate the post of chief justice of the South African Republic.

Shortly before Kotzé reached Pretoria, the British Special Commissioner, Sir Theophilus Shepstone, annexed the republic. For various reasons Burgers’ three-judge high court could not immediately be implemented and Kotzé was induced to serve as sole judge on a single-judge high court.

From May 1877 until early 1879 Kotzé maintained a good relationship with the British authorities and was able to create a well-qualified and professional judiciary for the Transvaal. In May 1879, however, in his judgement in the Utrecht liquor case, Kotzé disputed the right of either the Queen-in-council or her representative to legislate for the colony. This was considered a direct attack on law and order and the young judge’s claim to the chief justiceship was consequently overlooked when a three-judge high court was eventually established in March 1880.

This action proved to be most unpopular. Kotzé himself twice petitioned the British Privy Council, his second petition being submitted almost simultaneously with the outbreak of hostilities between Great Britain and the Transvaal Boers. After the retrocession of the Transvaal on August 8, 1881, Burgers’ judicial reforms were put into effect, and on September 8, 1881 Kotzé was appointed chief justice.

In a young country which initially lacked qualified officials, Kotzé soon became involved in disputes with the New Republican authorities regarding the qualifications of judicial personnel and the appointment of puisne judges. Kotzé’s relationship with President S.J.P. Kruger  and the Republican executive was further strained when the chief justice’s political ambitions were revealed in 1893. In that year Kotzé, without resigning his judicial post, accepted nomination for the presidential election. He polled, however, less than one percent of the votes.

More important was the constitutional crisis brought about by Kotze’s insistence on the independence of the bench vis-à-vis executive. His attitude in this respect was made clear in a judgment handed down in 1886, but which came to a head in 1897 when Kotzé, in his judgment in Brown v. Leyds (1897), claimed for the Transvaal Supreme Court the right to test the validity of Volksraad legislation against the constitution. This claim was vehemently rejected by President Kruger and, when mediation failed, Kotzé was dismissed on February 16, 1898.

Kotzé was then still a relatively young man and his subsequent career, although not marked by further dramatic incidents, spanned a period of 30 years. After a brief interlude in Southern Rhodesia (now Zimbabwe), he returned as a judge to South Africa in 1903. Knighted in 1917, he became a judge of appeal in 1923 and retired in 1927, 50 years after first taking the oath in the Transvaal.

J. W. KEW