Henry Allan Fagan

Henry Allan Fagan,

In the end, Fagan opted for law, and was admitted to the LLB program at the University of London in 1911.^[6] There he lived with his maternal uncle, J. J. Smith, who was researching Afrikaans in the library of the Museum of London and would later become the leading figure in the Afrikaans language movement and compiler of the language's first standard dictionary.^[5] Smith soon persuaded Fagan of the cultural importance of Afrikaans — Fagan had believed hitherto that a simplified form of Dutch was the best way to develop a written language for the Afrikaner people — and encouraged him to write his first Afrikaans poetry and short stories.^[5] Fagan earned his LLB in 1914, and was admitted to the Inner Temple the following year.^[2] He then returned to South Africa to practice at the Cape Bar.^[2]

Political career

Early involvement in the Afrikaner language movement

Fagan returned to the Cape at a time of great turbulence and excitement.

In 1919, Fagan left Die Burger and became, for a brief period, the first Professor of Roman-Dutch law in the newly formed law faculty at the University of Stellenbosch.^[5][6] The following year he returned to legal practice.^[6] He continued to be involved in the Afrikaner language movement, and helped ensure, along with his close friend C. J. Langenhoven, that Afrikaans was made an official language (replacing Dutch) in 1925.^[5]

In Parliament

Though Fagan's practice had become very reputable, and he had been appointed a

Unsurprisingly given his previous professorial appointment, Fagan was a "great exponent of Roman-Dutch law",^[1] and his best-known judgments were those which dealt closely with the old authorities like Voet and the Digest.^[10][11] Yet, unlike many other judges with Afrikaner nationalist leanings, Fagan did not shun English law on principle.^[1][11]

Fagan Commission

In 1946, as pressure was building from Malan's reactionary National Party, Smuts sought to devise a comprehensive United Party position on the so-called native question.

Nevertheless, the Commission had firmly rejected the principles on which the National Party's official policy of

Appellate Division

Despite the uncongenial report of his Commission, the Malan government was willing to elevate Fagan to the

Greater political intrigue marked his appointment and tenure as Chief Justice of South Africa.

In the end, after discussions with Schreiner, Fagan accepted the post.[7] 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.^[7] But this plan failed, unsurprisingly, when Steyn refused to agree.^[7] 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.^[7]

Retirement

When Fagan's judicial career ended in 1959, he re-entered politics, and became a strong opponent of the National Party's increasingly conservative policies under Hendrik Verwoerd.^[1] His remarks on the government's racial policy, serialized in the largest Afrikaans newspaper, Die Landstem, were hailed for "breaking the facade of Nationalist unity" and finally sparking an effective opposition to apartheid from within the establishment.^[5] Though there had been many black opponents of the government, as well as some prominent critics among white English-speakers, Fagan was one of the first Afrikaners to break ranks. His views had added traction among ordinary Afrikaners as a result of his being a celebrated Afrikaner author.^[5]

Fagan's monograph, Our Responsibility, published in February 1960, said (echoing the words of the Fagan Commission) that Verwoerd's policies were "hopelessly impractical", and that South Africa's white population had to accept racial integration.^[5] The book was given a scathing review by Piet Cillié, then editor of Die Burger and a staunch Nationalist.^[5]

Fagan's public pronouncements resulted in calls for him to lead a political movement.

One prominent journalist wrote in 1998, in light of the Fagan Commission's liberal report, which might have changed South African history had the Nats not suppressed it, that Fagan was one of the "unsung heroes" of Afrikaner history.^[5] According to Die Burger, however, the report, by documenting the extent to which the races had become integrated, had only helped show how imperative it was to forcibly separate them.^[5] That assessment was self-serving, but undoubtedly Fagan's views were more conservative than other critics of the government, like Alan Paton's Liberal Party, and did not question the fact that South Africa's white population ought to be preserved and indeed preferred.^[5] Throughout his time as an MP, his views were sufficiently close to Malan's that he could move seamlessly in and out of the National Party, with which he keenly reunified in 1940.^[9] Even after the antipathy sparked by the Fagan Commission, and his retirement from the judiciary, his recommendations on the racial question were, in essence, to re-institute Hertzog's racial policies.^[5] Yet in part it was precisely because he was no more than a "moderate",^[7] who retained significant ties to the Afrikaner establishment, and whose criticisms were so "measured",^[5] that his criticisms were able to have an impact.

Family life

Fagan married Jessie "Queeny" Theron, also from Tulbagh, in 1922.^[5][6] She was often the lead actress in performances of Fagan's plays.^[6] They had three sons, the last of whom, Johannes, became a judge of the Cape Provincial Division in 1977.^[4] The family lived in Bishopscourt, Cape Town, where Fagan died of a heart attack on 6 December 1963.^[5]

References