Henry Allan Fagan

Fagan was born in Tulbagh, a historical town in the winelands of the Cape Colony, in 1889. He was the oldest of seven children. His father was a lawyer and amateur poet, and kept a vast collection of books at the family's Cape Dutch residence (now a National Monument) on Kerk Straat, including leading works of theology and English literature. Fagan began his schooling in Tulbagh but completed the bulk of it in Somerset West. In 1905 he went to Victoria College (later to become the University of Stellenbosch), from which he earned a BA in Literature. He hoped (like many of his peers) to be a minister of religion, and went to the seminary in Stellenbosch; but his father's long-standing wish was that he would become a barrister, and continued to pay for private lessons in law. In the end, Fagan opted for law, and was admitted to the LLB program at the University of London in 1911. 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. 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. Fagan earned his LLB in 1914, and was admitted to the Inner Temple the following year. He then returned to South Africa to practice at the Cape Bar. == Political career ==

Early involvement in the Afrikaner language movement Fagan returned to the Cape at a time of great turbulence and excitement. 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. In 1936, he was instrumental in setting up the Cape Town-based newspaper Die Suiderstem, an Afrikaans-language mouthpiece for Hertzog (who had lost Die Burger's support after splitting with Malan). In 1938, Fagan was given a chance to withdraw from politics and become a judge, but he refused, preferring to stand as the United Party's candidate for the contested Stellenbosch seat in an attempt to wrest it away from the National Party. Malan himself came out to campaign on behalf of the Nationalist candidate, Bruckner de Villiers, who promised to strip coloured voters of the franchise. Fagan won by a narrow majority. He became Minister of Native Affairs in Hertzog's government (alongside the likes of Jan Kemp and Oswald Pirow) after the 1938 general election and was, in the view of one leading historian, the "most outstanding" of Hertzog's associates. Just a year later, however, Hertzog left the United Party in protest at Smuts' decision, in the face of clamant calls for neutrality from Afrikaans-speakers, to take the country into War in support of Britain, and Fagan "felt bound to go with him into the political wilderness". Fagan resumed legal practice, but remained an MP. Both he and Hertzog rejoined the National Party a few months later, a move Fagan strongly supported. When Hertzog once again split from Malan in 1941 to form the Afrikaner Party, however, Fagan did not follow him, staying instead in the NP caucus. , whose United Party Fagan joined after some hesitation and left after Smuts led South Africa into World War II. Smuts nevertheless appointed Fagan as a judge in 1943 and head of the pivotal Native Laws Commission in 1946. Thus, although Fagan had been in the vanguard of the Afrikaner nationalist movement and began and ended his political career as a colleague of Malan's, he "was not a Malanite" and differed in crucial respects, and at crucial historical moments, from the post-Hertzog National Party. The best-known instance would be his report for the Native Laws Commission (commonly called the Fagan Commission), which recommended a gradual liberalisation of South Africa's system of racial segregation and was accordingly "savaged" by his old party. Fagan was described, at least in these early years, as a "moderate", and retained significant ties to the Afrikaner establishment. == Judicial career ==

Fagan was made a judge of the Cape Provincial Division by Prime Minister Smuts in March 1943. Yet, unlike many other judges with Afrikaner nationalist leanings, Fagan did not shun English law on principle. and that undue influence vitiates a contract. But he did find against the government in its attempt to enforce the Population Registration Act, 1950, raising the standard of proof required to classify a person as 'non-European' on the provocative basis that Parliament could not have intended something so unjust as foisting that status on a person without adequate proof. 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. , who as Minister of Justice controversially appointed Fagan as Chief Justice, and who later defeated him in a Senate election in 1961 to become South Africa's first State President.|200x200px 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. == 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. However, he became a senator for the NU, and also its leader. The NU contested the 1961 election in alliance with the United Party, now led by Sir De Villiers Graaff. The NU soon fizzled out, and Fagan spent his final years as a Senator for the United Party, continuing to argue publicly for racial conciliation, now in the Johannesburg Star. His second treatise on racial politics, Co-existence, was published shortly before his death in 1963. == Legacy ==

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. 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. 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. 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. 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. Yet in part it was precisely because he was no more than a "moderate", who retained significant ties to the Afrikaner establishment, and whose criticisms were so "measured", that his criticisms were able to have an impact. == Family life ==

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