9 State Attorney
From Part 1 of Grey Steel by H.C. Armstrong

KRUGER was nominally President, but three times in succession he had been elected and gradually he had made himself all but Dictator. All departments, the police, the detective and secret services, were under his hand. The Volksraad, the Assembly of the Representatives of the People which sat in Pretoria, obeyed his orders: any Bill he placed before it was passed with little discussion and no opposition. Only the Courts of Justice refused to be controlled by him, and he was determined to control the Courts and their findings.

The Chief Justice, Judge Kotzé however, opposed him. For many years the two had quarrelled. Kotzé had stood against Kruger for the Presidency and had been defeated. Both were stiff-necked and uncompromising old men, and neither would give way. Kotzé was determined to keep the Courts free from the President and the politicians. He demanded permanent salaries for the judges: Kruger refused them. He demanded that judges should be dismissed only by a full vote of the Volksraad: Kruger refused to place such a proposal before the House.

Kruger began to interfere direct with the Courts. Two men were fined for beating a native: the Government refunded the fines imposed on them by the Courts. A third was found guilty and punished for a similar offence: Kruger issued a statement—" Notwithstanding the judgment of the High Court we think the accused to have acted rightly." Another was charged with a serious criminal offence: Kruger gave orders that the case was to be withdrawn and the man released without trial. More than once he sent for the Chief Justice and instructed him what he should find in cases before him, but Kotzé refused to take such instructions.

The quarrel grew more intense. It had been Kruger's habit to pass "resolutions" rapidly through the Volksraad and to give these the force of law, though the full procedure laid down by the Constitution had not been carried out. He ruled mainly by these " resolutions" This led to insecurity, for new "resolutions" could be passed in a few hours: it made the law shifting and unstable; it upset business and trade, for no business man could plan for the future if his liabilities and the regulations by which he worked were suddenly changed without warning.

Kotzé maintained that "the Constitution must be protected against hasty alterations by resolutions...A written and fixed Constitution is the sheet-anchor of the State... and a protection of the minority in political hurricanes," and advised the judges to test the validity of "resolutions" quoted in the cases before them. Kruger forbade them to do so. "Any resolution of the Volksraad," he said, "is equivalent to a law." The judges persisted. Kruger passed a law through the Volksraad that no judge had any right to test the validity of any law or resolution, and that all judges must take oath to this effect or be dismissed.

The quarrel became very personal. Kotzé said publicly that he did not trust Kruger, and called him an "oily old Chad-band." Kruger retaliated in a presidential address by saying that "the Chief Justice is a lunatic and I would put him in a lunatic asylum and bring him back to the Bench only when he is cured." Kotzé stood his ground and all the judges stood behind him and threatened to resign, and every lawyer, solicitor, and barrister backed them.

Though to the outsider it seemed to be a quarrel over a legal point, in reality it touched the whole basis of the security that the law could give to the citizen: the control of the Courts by the President and the politicians; and it touched the interests of every judge and every lawyer and of the whole legal profession.

Kruger was not sure of his ground and compromised temporarily. He was standing for the fourth time for the Presidency. The elections were to be held in a few months. He realised that he was less popular than he used to be, that opposition to his methods was increasing. His friends advised him to act with caution: he could not afford to put himself in the wrong with the Courts. He decided to wait and see the results of the elections.

While he waited Dr. Jameson made his Raid: South Africa went up in a flame of race-hatred, and Kruger became the national hero of all the Dutch. The elections were held, and he was nominated President for the fourth time by an overwhelming majority. At once he dismissed Chief Justice Kotzé from his post.

The result was an uproar. In the Cape the lawyers and judges were as angry as in the Transvaal. They protested against this "arbitrary and tyrannical step." Even the Law Journal spoke in its staid, formal language of the" President's ill-advised action." The Bar and the Side-Bar of Johannesburg gave Kotzé a complimentary dinner and five thousand pounds, and passed a strongly worded resolution denouncing the "irregularity of the dismissal." Every lawyer down to the smallest attorney was angry and up in arms.

At that moment Smuts saw his opportunity. Alone among the lawyers he backed the President and the politicians against the Chief Justice and the legal profession. He wrote a thesis, carefully argued out, based on his study of English, American, and International law, proving that Kruger was in the right. The thesis was clever, the logic was excellent; but it was completely partisan and played gallery to Kruger. "The President," wrote Smuts, "exercised the powers entrusted to him with singular patience and forbearance." Even his best friends would not have accused Kruger of "patience and forbearance"; and he had shown neither quality in this quarrel. Smuts maintained that the only error Kruger had made was his dismissal of the Chief Justice instead of having him tried for insubordination before a tribunal. Smuts did not touch the vital issues: the maintaining of the freedom of the Courts from the control of the politicians and the upholding of the stability of the law and the Constitution against sudden changes.

The thesis brought down a storm of abuse on Smuts. He was attacked for helping "a corrupt government to declare itself above the law." He was accused of being a renegade to his cloth. The other lawyers showed their disapproval of him by avoiding and even boycotting him; but the thesis had done its work. It had lifted Smuts out of the ordinary ruck of briefless barristers in Johannesburg into the limelight. President Kruger needed some lawyer to back him. He took an interest in Smuts and found out all about him. He sent for him several times to come to Pretoria so that he might talk to him and sum him up—and he marked him down as a useful man.

And Kruger had learned a lesson. He had realised how unpopular he had become: how, in fact, had it not been for Jameson's Raid and Rhodes' treachery, he would have probably been defeated at the presidential election. He realised too the dissatisfaction with the old men round him and above all the intense hostility, which was increasing, to his continued employment of the Hollanders. The Hollanders held many of the most important offices. His Secretary of State, Leyds, was a Hollander, and his Foreign Secretary and State Attorney were also from Holland.

He began to weed out the Hollanders. He sent Leyds as travelling Ambassador to Europe and finished his contracts with the other two and with many of the junior officials. He made Francis William Reitz, a Dutchman from the Free State, his State Secretary, appointed Piet Grobler, a nephew of his own, a Dutchman and a young man, his Foreign Secretary, and he chose J. C. Smuts to be his State Attorney, his Attorney-General.

The appointment aroused surprise and some ill-feeling: ill-feeling because the legal profession looked at Smuts askance and treated the appointment as a slap at them by Kruger; surprise because Smuts was so young—only twenty-eight—and had shown little ability as a lawyer. "A young colonial barrister with no experience," was the best one paper could say, but pointed out that he was diligent, had been successful as a student, and was not known to have been mixed up in any of the dishonest deals of the Transvaal politicians; and that this new move by Kruger was possibly a sign of better things.

Smuts was the man Kruger wanted. His opponents were shouting that he ought to employ local Dutchmen and young men: Smuts was both young and Dutch, and one of the leaders of the Young Afrikanders. Kruger was sure that trouble with England was close: Smuts would be useful: he knew England and English, and he was clearly very hostile to the English. Kruger wanted all the allies he could get, especially the Dutch of the Cape, and he wanted a direct link with the Bond. Schreiner, who was now Prime Mimster of the Cape, thought well of Smuts. Hofmeyr had recommended him. He had summed Smuts up for himself as dour, hard-working, resourceful—a man after his own heart. He was satisfied with his choice of Smuts as his State Attorney, and he kept him.

In June 1898 Smuts left Johannesburg and took up his post in Pretoria. Given the opportunity, he was sure, as his wife was sure, that he would make good. He had his opportunity.

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