Oliver Deneys Schreiner
MC KC (29 December 1890 – 27 July 1980), was a judge of the Appellate Division of the
Supreme Court of South Africa
The Supreme Court of South Africa was a superior court of law in South Africa from 1910 to 1997. It was made up of various provincial and local divisions with jurisdiction over specific geographical areas, and an Appellate Division which was t ...
. One of the most renowned South African judges, he was passed over twice for the position of
Chief Justice of South Africa
The Chief Justice of South Africa is the most senior judge of the Constitutional Court of South Africa, Constitutional Court and head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the c ...
for political reasons. He was later described as "the greatest Chief Justice South Africa never had".
Early life
Schreiner was born in Cape Town in 1890, the son of
William Philip Schreiner
William Philip Schreiner (30 August 1857 – 28 June 1919) was a barrister, politician, statesman and Prime Minister of the Cape Colony during the Second Boer War.
Early life
Schreiner was born at Wittebergen Mission Station near Hersc ...
, the
Prime Minister of the Cape Colony
This article lists the governors of British South African colonies, including the colonial prime ministers. It encompasses the period from 1797 to 1910, when present-day South Africa was divided into four British colonies namely: Cape Colony (p ...
during the
Boer War
The Second Boer War ( af, Tweede Vryheidsoorlog, , 11 October 189931 May 1902), also known as the Boer War, the Anglo–Boer War, or the South African War, was a conflict fought between the British Empire and the two Boer Republics (the Sou ...
, and his wife, Frances, a sister of
President F. W. Reitz.
The author
Olive Schreiner was his aunt.
Schreiner attended the
Rondebosch Boys' High School
Rondebosch Boys' High School is a public English medium high school for boys situated in the suburb of Rondebosch in Cape Town in the Western Cape province of South Africa. It is one of the topmost academic schools in South Africa and one of th ...
, the
South African College School
The South African College Schools (colloquially often known as “SACS”) is a public English medium primary and high education institution situated in Newlands - part of the Southern Suburbs region of Cape Town in the Western Cape province of ...
(SACS), before going to the
South African College
The South African College was an educational institution in Cape Town, South Africa, which developed into the University of Cape Town (UCT) and the South African College Schools (SACS).
History
The process that would lead to the formation of t ...
(now the
University of Cape Town
The University of Cape Town (UCT) ( af, Universiteit van Kaapstad, xh, Yunibesithi ya yaseKapa) is a public research university in Cape Town, South Africa. Established in 1829 as the South African College, it was granted full university statu ...
), where he was the admired president of the Debating Union.
An excellent student, he "could have had the
Rhodes Scholarship
The Rhodes Scholarship is an international postgraduate award for students to study at the University of Oxford, in the United Kingdom.
Established in 1902, it is the oldest graduate scholarship in the world. It is considered among the world' ...
for the asking", but understood, in the light of
Rhodes
Rhodes (; el, Ρόδος , translit=Ródos ) is the largest and the historical capital of the Dodecanese islands of Greece. Administratively, the island forms a separate municipality within the Rhodes regional unit, which is part of the So ...
's involvement in the
Jameson Raid and subsequent fallout with William Schreiner, that "no Schreiner took such a gift from such a man".
Instead, Schreiner went up to
Trinity College, Cambridge
Trinity College is a constituent college of the University of Cambridge. Founded in 1546 by Henry VIII, King Henry VIII, Trinity is one of the largest Cambridge colleges, with the largest financial endowment of any college at either Cambridge ...
to read Law. Like his father, who had also studied at Cambridge, Schreiner had a brilliant academic career, topping the list for Part I of the Law
Tripos
At the University of Cambridge, a Tripos (, plural 'Triposes') is any of the examinations that qualify an undergraduate for a bachelor's degree or the courses taken by a student to prepare for these. For example, an undergraduate studying mathe ...
in 1912, winning the George Long Prize in Roman Law, and receiving a Trinity Senior Scholarship. In 1915 he was granted his BA ''in absentia'' and in 1916, he was elected to a fellowship of Trinity.
His studies were interrupted by the First World War: he was commissioned into the
British Army
The British Army is the principal land warfare force of the United Kingdom, a part of the British Armed Forces along with the Royal Navy and the Royal Air Force. , the British Army comprises 79,380 regular full-time personnel, 4,090 Gurk ...
, and served with the
Northamptonshire Regiment and the
South Wales Borderers. he was wounded in the right arm at
Trônes Wood during the
Battle of the Somme
The Battle of the Somme ( French: Bataille de la Somme), also known as the Somme offensive, was a battle of the First World War fought by the armies of the British Empire and French Third Republic against the German Empire. It took place bet ...
, and received the
Military Cross
The Military Cross (MC) is the third-level (second-level pre-1993) military decoration awarded to officers and (since 1993) other ranks of the British Armed Forces, and formerly awarded to officers of other Commonwealth countries.
The MC i ...
.
After recovering from his injuries, he was sent to Mesopotamia, but his ship was torpedoed ''en route''. He was demobilized with the rank of
Captain
Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police department, election precinct, e ...
.
Legal career
After the war Schreiner completed his legal studies and was called to the English bar at the
Inner Temple
The Honourable Society of the Inner Temple, commonly known as the Inner Temple, is one of the four Inns of Court and is a professional associations for barristers and judges. To be called to the Bar and practise as a barrister in England and Wal ...
, completing his
pupillage under
Wilfred Greene and
Geoffrey Lawrence.
He was called to the Transvaal bar in 1920 and set up a practice in
Johannesburg
Johannesburg ( , , ; Zulu and xh, eGoli ), colloquially known as Jozi, Joburg, or "The City of Gold", is the largest city in South Africa, classified as a megacity, and is one of the 100 largest urban areas in the world. According to Demo ...
, dealing primarily in commercial arbitration, white collar crime and being recognised as a specialist in procedure. He also lectured on the law of torts and crime at the Faculty of Law of University College, Johannesburg (now
University of the Witwatersrand
The University of the Witwatersrand, Johannesburg (), is a multi-campus South African Public university, public research university situated in the northern areas of central Johannesburg. It is more commonly known as Wits University or Wits ( o ...
), then in its early days: the Law School is today named in his honour. He had a roaring civil practice, and
took silk as a King's Counsel in 1935.
In the 1920s, he was approached by
Jan Hofmeyr to enter politics, but declined to do so.
On 15 February, he was appointed an acting judge of the
Transvaal Provincial Division
The Gauteng Division of the High Court of South Africa is a superior court of law which has general jurisdiction over the South African province of Gauteng and the eastern part of North West province. The main seat of the division is at Pretoria, w ...
, and was appointed to a permanent position on the court on 1 August 1937. As a trial judge, Schreiner was said to be quiet and polite, but a sharp questioner, and looked primarily after Chamber work. During the
Second World War
World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all of the great powers—forming two opposin ...
, he presided over a special court in charge of trying cases of sabotage and hampering the war effort. He also presided over the special court which tried
Robey Leibbrandt
Sidney Robey Leibbrandt (25 January 1913 – 1 August 1966) was a South African Olympic Games, Olympian sportsman, who during World War II acted as an Abwehr agent for the Third Reich against the British Empire in South Africa. He was convicted ...
and others for high treason; the judgment ran to 70,000 words and took seven hours to be delivered.
On 1 January 1945, he was promoted to the
Appellate Division of the
Supreme Court of South Africa
The Supreme Court of South Africa was a superior court of law in South Africa from 1910 to 1997. It was made up of various provincial and local divisions with jurisdiction over specific geographical areas, and an Appellate Division which was t ...
, where he served until his retirement in 1960. Initially he heard primarily civil appeals from trial courts as well as tax appeals, but later on exclusively heard second appeals as well as petitions against the executive
During the
Coloured Vote Crisis, Schreiner steadfastly refused to endorse the attempts of the
Nationalist
Nationalism is an idea and movement that holds that the nation should be congruent with the state. As a movement, nationalism tends to promote the interests of a particular nation (as in a group of people), Smith, Anthony. ''Nationalism: The ...
government to remove
Coloured
Coloureds ( af, Kleurlinge or , ) refers to members of multiracial ethnic communities in Southern Africa who may have ancestry from more than one of the various populations inhabiting the region, including African, European, and Asian. South ...
voters from the
Cape Province's roll. Finally, after the Appellate Division had been packed with pliant judges, it approved the government's reconstitution of the Senate. Schreiner was the lone dissentient.
Passed over for the Chief Justiceship
Schreiner was twice passed over for appointment as
Chief Justice, despite being the most senior appellate judge (tradition dictated that the appointment should go to the most senior appellate judge). On the first occasion he was superseded by
Henry Allan Fagan
Henry Allan Fagan, KC (4 April 1889 – 6 December 1963) was the Chief Justice of South Africa from 1957 to 1959 and previously a Member of Parliament and the Minister of Native Affairs in J. B. M. Hertzog's government. Fagan had been an early ...
, who accepted the appointment with reluctance; although it was obvious to both that Schreiner was being punished by the government for his role in the coloured vote crisis. Initially the judges of the Court had, at the suggestion of outgoing Chief Justice
Albert van der Sandt Centlivres, tried to reach an agreement that they would all refuse appointment, so that the government would be forced to appoint Schreiner.
But this plan failed when notorious National Party favourite
L. C. Steyn
Lucas Cornelius Steyn, PC, QC (21 December 1903 – 28 July 1976) was Chief Justice of South Africa and, as such, acted as Governor-General on two occasions.
Early life
Steyn was born in 1903 on a farm in the Orange River Colony, shortly af ...
failed to agree.
Fagan therefore accepted the Chief Justiceship with misgivings, after consulting with Schreiner, so that Steyn would not be appointed.
When Fagan retired two years later, Schreiner was again passed over, this time losing out to Steyn.
Schreiner was later described by Ellison Kahn as "the greatest Chief Justice South Africa never had".
Politically, Ellison Kahn classifies Schreiner as a traditional Cape liberal: he opposed racism, and in old age refused to sit on whites-only bus seats. In 1970, he refused to be renominated as President of the Cripple Care Association of the Transvaal because its constitution had been amended to restrict membership to whites only.
Honours and awards
After his retirement he served on the University of the Witwatersrand Council and as president of the
South African Institute of Race Relations
Established in 1929,http://www.sairr.org.za/profile/ the South African Institute of Race Relations (SAIRR) is a research and policy organisation in South Africa. The institute is "one of the oldest liberal institutions in the country".
The in ...
.
A long-serving member of the Council of the University of the Witwatersrand (Wits) he was elected unopposed as Chancellor of the university, serving from 1962 to 1974. He also sat on the appellate courts of various African territories. He was awarded three honorary doctorates: from the
University of Cape Town
The University of Cape Town (UCT) ( af, Universiteit van Kaapstad, xh, Yunibesithi ya yaseKapa) is a public research university in Cape Town, South Africa. Established in 1829 as the South African College, it was granted full university statu ...
(1958), Witwatersrand (1961) and
Rhodes
Rhodes (; el, Ρόδος , translit=Ródos ) is the largest and the historical capital of the Dodecanese islands of Greece. Administratively, the island forms a separate municipality within the Rhodes regional unit, which is part of the So ...
(1963). In 1967, he delivered the
Hamlyn Lectures at Cambridge.
The main building at the
University of the Witwatersrand Law School is named for him.
References
{{DEFAULTSORT:Schreiner, Oliver
1890 births
1980 deaths
South African judges
Alumni of Rondebosch Boys' High School
Alumni of Trinity College, Cambridge
South African Queen's Counsel
Recipients of the Military Cross
Members of the Inner Temple
Fellows of Trinity College, Cambridge
20th-century South African lawyers
Northamptonshire Regiment officers
British Army personnel of World War I
Chancellors of the University of the Witwatersrand