page_title: Henry Allan Fagan
section_title: Chief Justice
hierarchical_section_title: Henry Allan Fagan / Judicial career / Appellate Division / Chief Justice
caption_attribution_description: Johannes Gerhardus Hans Strijdom (15 July 1893 - 24 August 1958), former Prime Minister of South Africa (1954-1958)
context_page_description: Henry Allan Fagan 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 supporter of the Afrikaans language movement and a noted Afrikaans playwright and novelist. Though he was a significant figure in the rise of Afrikaner nationalism and a long-term member of the Broederbond, he later became an important opponent of Hendrik Verwoerd's National Party and is best known for the report of the Fagan Commission, whose relatively liberal approach to racial integration amounted to the Smuts government's last, doomed stand against the policy of apartheid.
context_section_description: Greater political intrigue marked his appointment and tenure as Chief Justice of South Africa.
  The Chief Justiceship fell vacant upon the retirement at the end of 1956 of Albert van der Sandt Centlivres. Centlivres had stood firm, in the Harris v Minister of the Interior cases, against the Nationalists' first attempts to strip coloured voters in the Cape Province of their right to vote, which was constitutionally entrenched in the South Africa Act. But virtually his last act as a judge was finally to relent, in Collins v Minister of the Interior, and to give legal sanction to the disenfranchisement, which the National Party, now led by J. G. Strydom after Malan's death, had secured by packing the Senate. Fagan, too, had sat in this last case (but not in Harris), and concurred in Centlivres' judgment. The lone dissentient was Oliver Schreiner, a noted liberal judge of very high esteem. Schreiner was also the most senior judge on the Appellate Division after Centlivres' retirement, and was therefore first in line, according to long-standing convention, for appointment as Chief Justice. Yet he had plainly proven himself to be politically unsafe during this so-called coloured vote crisis, and was, presumably as a result, passed over by the Nationalist government. This move was widely condemned. The next most senior judge, Hoexter, had joined Centlivres' judgment in Collins, but had voted against the government in the Harris cases, so he, too, was disfavoured. That left Fagan, untainted by any association with Harris and with clear Afrikaner and Nationalist ties, who was offered the post by Minister of Justice C. R. Swart. Fagan was shocked by the offer, describing it as a "bolt from the blue". In a letter to Swart, Fagan said he was faced with "a very difficult choice", noting his concerns about superseding the more senior Schreiner and the obvious implication that the offer was politically motivated.
  In the end, after discussions with Schreiner, Fagan accepted the post. They decided it was best for him to accept the appointment, despite all its problems, to prevent notorious National Party favourite L. C. Steyn becoming Chief Justice. Initially they had, at Centlivres' suggestion, tried to reach an agreement among the judges of the Court that they would all refuse appointment, so that the government would be forced to appoint Schreiner. But this plan failed, unsurprisingly, when Steyn refused to agree. Fagan therefore accepted the Chief Justiceship with misgivings. He wrote to his wife after his appointment that he still felt "sick about Oliver [Schreiner]" and ashamed when people congratulated him.
caption: Portrait of Prime Minister JG Strijdom in Die Huisgenoot. Fagan despised Strijdom's authoritarianism, but acceded in Collins v Minister of the Interior to his disenfranchisement of coloured voters and reluctantly accepted appointment by him as Chief Justice.
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