Hector Macdonald was the last chief justice of Rhodesia in the final three years of the rebel colony’s existence. Ill-temper, an ability to rub people up the wrong way, his habit of viewing a difference of opinion as a personal insult, as well as the fact that he had a false leg, cast him as the archetypal right-wing Rhodesian judge who was presumed to be happiest when sending black guerillas to the gallows. It was a perception he reinforced by leaving the country immediately after swearing in Robert Mugabe as prime minister of the new republic of Zimbabwe.
However, Macdonald was a respected as an able and clever judge by jurists and senior lawyers in Southern Africa and England. Despite his difficult manner, he was, above all, fair.
He was the most antagonistic of all the judges on the bench to Rhodesian prime minister Ian Smith’s unilateral declaration of independence (UDI) from Britain in 1965. He regularly cut prison terms and commuted death sentences passed by lower courts on black nationalists.
Hector Norman Macdonald was born in Bulawayo in 1915 of an English father, who had been one of the early settlers brought by Cecil Rhodes. Hector was locally schooled, went to London in 1934 to study law at Grays Inn, and was called to the Bar in 1938.
Back in Rhodesia at the outbreak of the Second World War, he joined the British Army and became a captain in the Royal Horse Artillery, serving as a battery commander in North Africa. He was in the first parachute assault on Sicily, but lost a leg in the campaign and returned to civilian life.
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He was back at the Rhodesian Bar in 1950 and in 1958 was called to the Bench. In 1965, as Smith was about to secede, the country’s nine high court judges were caught in a complex and tangled constitutional debate.
All the judges opposed UDI and agreed it was illegal. They then had to decide whether to continue to serve on the “rebel” bench. There were charges that it would be treason, but they were supported by Lord Gardiner, the Lord Chancellor, who advised that it was their duty “to uphold the law” and “in no circumstances to resign”. A secret cable from the Queen endorsed this.
Macdonald tried to persuade the other judges to make public their opinion in the hope that it would weaken support for UDI and inspire senior civil servants and army officers who also opposed it. He was overruled.
In 1966, lawyers for the wife of a detained black politician, Daniel Madzimbamuto, and the outspoken advocate, Leo Baron, also in detention, filed a challenge to the legality of the UDI government. Judgment was delivered after two years of tortuous argument involving some of the most acute legal minds in Britain and Southern Africa.
The judges ruled that the detention of Madzimbamuto and Baron was unlawful and pledged allegiance to the Queen. But Macdonald and three of the nine judges held that the UDI regime was a de facto government and therefore de jure. His minority judgment is held up as a model of legal excellence.
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Macdonald was promoted to judge of appeal in 1970, and chief justice in 1977. He found himself at the centre of controversy in late 1979 during the closing stages of the Lancaster House conference in London that brought the warring government and black nationalists to a ceasefire and elections.
He was invited to London by Lord Carrington, the chairman of the conference, for his views on the future of the judiciary. Macdonald, without consulting all the other judges, told Carrington that he “and several other judges” would leave if Mugabe came to power.
In fact, Macdonald was the only judge to leave before he was due to retire. He administered the oath of office to Mugabe at the official independence ceremony on April 18, 1980. It was his last judicial act. He retired to South Africa a month later and never returned. He died in Cape Town.
He is survived by his second wife, Mollie, and two sons and a daughter.
Hector Macdonald, last chief justice of Rhodesia, was born on November 3, 1915. He died on January 30, 2011, aged 95