Transition

The short period of rule at the Cape (1803–1806) by the Batavian (Dutch) Republic saw the beginnings of many modernising reforms not the least of which was the reconstitution of the Court of Justice around a core of salaried, legally trained judges enjoying considerable independence and prestige. Yet juridically speaking very little survived from that period; neither law reports, textbooks, opinions nor decrees. Outside the archival papers, the only physical relic of note was the Bench or, as a later judge was to put it, the Bench, denoting not a collective of judges but a collective of seats, consisting of five canebacked chairs joined firmly together "to uphold . . . the pipe-smoking . . . grave and reverend signeurs . . . who upheld the laws" (Cole). Only two of the incumbents stayed on after the second British occupation, and neither achieved any particular fame. Yet a number of other officials, some Cape-born, others out from Holland, elected to work for the British administration even though this entailed an oath of allegiance to the British Crown. These men staffed the lower ranks of government for two decades after the occupation, and filled nearly all posts connected with the administration of justice. J. A. Truter, after having been under a cloud for his part in looting the Treasury as the British troops approached Cape Town, practised as an advocate and prosecutor until August 1812, when he was appointed Chief Justice. Thereafter he became the right hand man of successive governors and chief adviser on reform of land tenure (1813), tax collection (1814) and criminal procedure (1819). More than any of his colleagues he became the prototype of the many Afrikaners who subsequently were to rise to high office by skilful collaboration with the British. Born in Cape Town in 1763 as plain Johannes Andries Truter, he died

in 1845 heaped with honours as Sir John Truter, the first South African to receive a British knighthood (1820).

Other leading personalities of the old regime manned the court which toured the countryside on the so-called Black Circuit of 1812 sent by the British Governor to investigate complaints from missionaries that white farmers were maltreating Khoi labourers. It was also Dutch and colonial-born lawyers who tried the leaders of the shortlived Slagter's Nek rebellion, whose resistance to British authority and subsequent execution was to make them martyrs in the eyes of future Afrikaner rebels. Significantly, this revolt was sparked off by the defiance of a white farmer who had fired on and been killed by a group of Khoi troopers sent to compel him to attend court on a charge of ill-treating a coloured servant. Eventually five of the rebels were hanged in a grim public execution-Afrikaners of the countryside condemned by Afrikaners of the town.

The problem of fractious frontiersmen was not something that first arose during British rule. Since the early days of the Dutch settlement attempts had been made to keep under rein the more distant farmers, and in fact one of the first appearances in court by Truter as a young advocate had been in a case where he had sought and gained an order for banishment against a farmer "for cattle bartering from Hottentots and shooting some of the latter" (1789). What was new about the British was their greater determination and efficiency and their greater willingness to incorporate armed Khoi Khoi into the police force. The Governors of that time were in general far less liberal in political outlook than their Batavian Republic predecessors had been. They came from a class of High Tory that tended to apologise for slave-owning and sympathise with the problems of landowners, and they loathed anything that smacked of Jacobinism. Yet being autocratic Conservatives they believed that the job of the Governor was to govern. How better both to govern more effectively and to quieten the philanthropic non-Conformist missionaries than by extending and invigorating the whole court system? Both to those who cried out for and to those who thundered against equality, the same answer could be given, one that combined the virtues of morality and effectiveness, of modernity and stability—justice. Justice did not tamper with social differentiation, on the contrary, it regularised it; it gave all inhabitants a forum for the expression of grievances; it established the machinery for the systematic investigation of complaints; and it gave an aura of impartiality to the extension of government control.

It was this very aura of impartiality that caused most affront to the white frontiersmen. The least that they expected of an active government—the only good government being a moribund one—was that it should be partial. Yet here was the law not only refusing to punish insubordinate servants, but actually giving them a chance publicly to defame their masters. From now on it was clear that the law could be used to discipline not only coloured servants, but also their white masters: thus if a slave raised his hand to his master, he would be guilty of an assault, and if a master lashed his slave more than 39 times (reduced in 1823 to 25 times) he too would be guilty of an assault.

This new willingness on the part of the courts to hear complaints from servants and to receive the evidence of Christian slaves (1823) and all non-slaves irrespective of colour or occupation, would have counted for little, however, had there not been people prepared to bring cases of alleged cruelty to court. The men who did this in some areas and to some extent were the Nonconformist missionaries sent out mainly by the London Missionary Society. They were enthusiastic, practical and, above all, safe from reprisals; through their activities they added a new and enduring element to South African political life, the white man who acted as 'champion of the natives' and did so by manipulating the machinery of white power rather than by helping to organise black resistance.

The missionaries received a valuable ally at a crucial stage in the person of a former Attorney-General of New South Wales (Saxe-Bannister) who after living at the Cape from 1827 to 1830, published a book in England criticising aspects of the colonial administration of justice. In some respects he thought that judicial institutions at the Cape were excellent, and he especially admired the public prosecutors in the country areas, whom he regarded as the guardians of the oppressed and a check on magistrates. Unfortunately, however, the courts were not vigorous enough in punishing abuses; in his view they neglected their special responsibility for redressing the inequalities which had been brought about during the long period in which the coloured poor had been stripped of their possessions. Yet one of the local magistrates, understood to be generally well disposed, and of a mild character, very recently remarked in regard to a clear case, in which success was partly gained, that be thought the rest (equally plain) should be waived. The time, said he, was "when Hottentots would have got no justice: now they wanted too much". The writer mentioned a number of other cases he had got to know about at first hand, which prompted him to urge

that the outcome of trials be published in the Colonial Gazette in order that they might achieve maximum educational and deterrent effect. In one case an elderly Khoi man had been thrashed and kicked by a white farmer who had mistakenly suspected him of theft. The farmer was fined and ordered to pay damages in a civil suit, the writer's complaint being that the amounts were too low. Another matter arose out of a dispute over boundaries, which had led a group of white farmers to flog a Khoi farmer and leave him hanging by his arms all night. Eventually after much delay and some attempts at obstruction by lower court officials, the case came before the Circuit Court which awarded the injured man £20 and costs, a fairly substantial sum for those days. Other cases involved convictions for assault of a white woman for ill-treating a slave, of a white constable for beating a Khoi suspect, and of three white men for illegally punishing a slave-all were ordered to pay fines. A Khoi man who stole a sheep was, on the other hand, sentenced to undergo a whipping. Two other interesting matters which were heard outside the Colonial court's jurisdiction related firstly to the trial and execution by their chief of four Africans on a charge of murdering two Colonial soldiers, and secondly to the trial and execution by his chief of a San hunter on a charge of murdering a missionary. Both these cases were brought on the requisition of the colonial authorities, whose representative attended the trials as observer. Finally he mentioned the case of eleven Khoi Khoi who successfully petitioned the Supreme Court as paupers for relief from a contract of servitude unlawfully imposed upon them for debt.

In those years the influence of men like Saxe-Bannister on the Colonial Office was greater than it was to become later in the century. One example of this influence was the pressure put on the Governor at the Cape to end the practice whereby women slaves, who could not be whipped as were their menfolk, were punished by confinement on Sundays. The Governor complained that many of these women were so depraved that Sunday was not a day of rest for them but a day of debauchery and dissipation, and he also asked why the masters should be punished as well by being deprived of their labour on working days, to which the Colonial Secretary replied that he could not see how bad character could be improved by a day in solitary confinement meant for instruction and repose. Ultimately, however, it was the setting up of a Supreme Court in the Colony that was destined to have a greater effect than missives from the Colonial Office.

After the defeat of Napoleon and the conclusion of the Peace Treaty

of 1814, the Cape was regarded by its rulers as a full British colony to be governed in the British interest. Lack of local educational facilities together with a deliberate policy of anglicising the administration made it inevitable that the ageing survivors of the Batavian Republic administration would be replaced by men imported from Britain. Commissioners of Enquiry were sent out from London and they recommended inter alia a complete overhaul of the judicial system, the introduction of British judges, the application of British court procedures and the gradual assimilation of the local Roman-Dutch law to that of England. The use of the English law of evidence, they asserted, could "not fail to produce the most beneficial consequences . . . even under the disadvantages to which it is liable from the strong prejudices of the white population and from the imperfect sense of religious and civil obligation by which the uninstructed portion of the Colonial Population is distinguished".

Following on their recommendations a Charter of Justice was enacted for the Cape in 1827 and confirmed by a second Charter in 1832. These Charters together with accompanying ordinances and rules of court completely transformed the local judicial establishment. At the head of affairs were well-paid judges drawn from the English, Irish and Scottish Bars; at the lower end were magistrates invested with wideranging judicial and administrative responsibilities. The styles and forms of British legal procedures were introduced: preliminary examinations and trial by jury in serious criminal matters, furnishing of indictments, provision for bail, examination and cross-examination of witnesses, in fact most if not all of the characteristic features of the British trial based on the adversary system.

The proceedings of the new Supreme Court of the Cape of Good Hope were commenced on 1st January 1828, when four judges, nine advocates, four attorneys and eight notaries took the oath of allegiance. The judges had been attracted by a good climate and a good salary (£2,000 p.a. for the Chief Justice and £1,500 p.a. for the Puisne Judges), while each seemed to have had strong personal motives as well for taking up posts in what must have seemed to them to be a near-wilderness. Thus one was alleged to have killed a man in a duel (Menzies), another had already served as legal adviser to the Governor at the Cape (Kekewich), a third was a sailor turned lawyer whose globetrotting career was eventually to take him to five continents (Burton), whilst the fourth was probably trying to get away from his wife (Chief Justice Wylde). As a group they were well-educated—

Menzies was a close friend of Sir Walter Scott—and they possessed a flamboyance, panache and independence of spirit quite new to officials at the Cape. Under their leadership the whole legal system took on a more vigorous character; one immediate consequence of their arrival was that demands for 'freedom of the press' could be met, because newspapers could be made subject to the fixed provisions of the law as interpreted by the courts, rather than to the capricious feelings of the Governor. These British judges may have been following in the wagonruts of their Cape predecessors, but they did so with an energy and a style that proved to be both new and lasting.