Chapter Three—
In the Interior:
The Administration of Justice and Race Relations in the Boer Republics and the Colony of Natal

In order to get away from British government, British taxes and British notions of justice, thousands of white Afrikaner farmers in the eastern Cape in the 1830s packed their belongings into wagons and trekked into the interior of southern Africa. Experience had taught them that it was easier to emigrate en masse than to rebel, and what had already been a slow, unco-ordinated movement of the land-hungry became the accelerated and organised exodus of the discontented. Probably the greatest of all their grievances stemmed from the British doctrine of equality before the law, which enabled missionaries to bring servants and ex-slaves to court to lay charges against their masters. Thus the wife of one of the main Voortrekker leaders was herself hauled before court to face a charge of ill-treatment, while the sister of another prominent leader wrote that one of the main causes of the Great Trek was the

shameful and unjust proceedings with reference to the freedom of our slaves . . . It is not their freedom that drove us to such lengths, as their being placed on an equal footing with Christians, contrary to the laws of God and the natural distinctions of race and religion, so that it was intolerable for any decent Christian to bow down beneath such a yoke; wherefore we rather withdrew in order to preserve our doctrines in purity.

This was not the departure of outlaws, but the migration of a community determined to maintain what it considered to be proper relations between masters and servants. The advance of the trekker wagons up the east coast was blocked by the military power of the African tribes living there, but the lands to the north were easily penetrable because a decade earlier they had been largely depopulated by the catastrophic difaqane (forced migration), the chain-reaction of devastation which followed the growth of the Zulu military kingdom. The Voortrekkers were united by language, religion, attitudes to colour and

fear of the British and the Africans, but they were nevertheless jealous of their personal independence and reluctant to entrust their destinies to leaders or governments of any kind. After many vicissitudes, including conflict with and the infliction of heavy military blows against the two most powerful African states in southern Africa (the Ndebele and the Zulu), they settled in the areas between the Orange and Vaal rivers and beyond the Vaal, where they founded the two Boer Republics eventually known as the Orange Free State and the South African Republic, more commonly referred to as the Transvaal. An early attempt to establish a Voortrekker Republic in Natal was frustrated by the intervention of British troops.

The Boers prided themselves on their independence and rural democracy, which were based on the possession by each farmer of his own gun, his own farm and his own entourage of servants. Yet they were far from self-sufficient, being totally dependent on Cape colonists for trade and ministers of religion, and on dark-skinned servants for labour. They forbade the holding of slaves, which, moral objections apart, would have attracted particular odium and given the British further excuse for interfering in their affairs; in any event they had no access to slave traders, and had developed a method cheaper than purchase of obtaining a dependent labour force. All of them had taken coloured servants with them from the Cape, and when they later wished to add to their labour supply they looked to the remnants of the African tribes around them. Some of their new servants they captured during commando raids (these were called 'apprentices') but most of their additional labourers consisted of Africans whose tribal organisations had been shattered by the difaqane and who now returned to their ancestral homes where they took up residence again, as 'squatters', labour-tenants and servants of the Boers. The dispossession initiated by the armies of the Zulu king Shaka was completed and made permanent by the Boers, who continually extended their farm-holdings and took further land from the regrouping tribes. A new multiracial community was thus created on the highveld in which the Boer minority exercised political, economic and judicial mastery over a dark-skinned majority. While economic interdependence and cultural assimilation of black and white proceeded, civic inequality and social distance remained as rigid as they had ever been during the late slaveholding period in the Cape.

In the early years of the Republics only the most rudimentary systems of law enforcement existed, and the administration of justice

consisted of little more than the maintenance of local discipline by untrained and largely illiterate officials. So little legal knowledge did many of these men possess that the Transvaal government at one stage even felt compelled to make it a criminal offence for magistrates not to acquaint themselves with the law. In the absence of a permanent police force or standing army, commandos of mounted burghers were called out from time to time to quell any major African resistance, and the military officials whose duty it was to call the farmers out for the punitive expeditions also acted as directors of labour, demarcators of land and keepers of the peace. Chronic shortages of funds limited the growth of governmental agencies, but by the end of the century modern institutions had begun to develop, and despite the fact that citizenship was restricted to white-skinned burghers only, the two Republics were cited by a noted American constitutional expert as model democracies (Bryce).

The Boers were firm in their Calvinism, firm in their attachment to their language, and firm in their view that only persons with white skins should qualify for rights of citizenship. The Orange Free State constitution declared that all should be equal before the law, but it was clearly understood that as far as substantive law was concerned, the word 'all' meant 'all burghers' and that only white men could become burghers. The Transvaal constitution was more direct and stated expressly that "the People will countenance no equality between Black and White in Church or State".

Besides being deprived of all civic rights, Africans were forbidden to possess firearms, ammunition or horses or to be abroad without a pass signed by an employer or State official.

In the 1870s, High Courts headed by trained judges were established in both Republics, and they succeeded in attracting some outstanding jurists from the Cape who gave a measure of order and decorum to the administration of justice. Yet although their influence on public life was considerable, their jurisdiction did not effectively extend to supervising white farmers in their relations with black servants. Generally the farms continued to be run as semi-autonomous estates, with ordinary disciplinary offences being dealt with summarily by the masters, and only the more serious offences coming before the courts. In theory, servants had the right to complain to local officials about ill-treatment, but they did so at the peril of being punished for laying frivolous complaints.

One further general point which should be made about the administration of justice and race relations in the Boer Republics, is that

despite the violence attendant on their birth as states and despite the strong feelings of group identity which characterised their populations, lynching was very rarely resorted to by members of the dominant white communities. Superficially looked at, all the apparent ingredients of lynch-situations would seem to have been present: weak law enforcement agencies, a ruling group with a monopoly of power and a strong sense of racial solidarity, a frontier tradition of lawlessness and commando raids, and a mythology of smiting the forces of darkness. Private violence against African servants, including lethal thrashings, were not uncommon; nor were punitive raids by self-appointed commandos. What was almost non-existent, however, was the banding together of groups of whites in small towns and villages to engage in frenzied attacks, involving violent and obscene rituals, upon defenceless Africans. Neither mob nor vigilante lynchings have been characteristic of the South African scene. It has been claimed that there has been only one recorded case of lynching in the Transvaal, the 'Steynsdorp lynching case' in the middle of the 1890s which led to the trial and acquittal of seven white men. Gandhi was nearly lynched when he returned to Natal from India in 1896, but otherwise in a country where almost every other kind of atrocity has been documented or alleged, there seem to have been no other recorded cases of lynching.

Perhaps the proper approach to the question is to ask why it was present elsewhere rather than why it was absent in South Africa. In the Southern States of the U.S.A. lynching was first used primarily against white men and expressed something in the character of early nineteenth century American society; only during Reconstruction, when white supremacy was under serious threat, was it converted into a weapon of terror and discipline against black Americans. In Europe lynching was from time to time practised against Jews, who, like the black people of North America, constituted a minority group in the population and could more easily fill the role of scapegoats than could members of a majority group such as Africans in South Africa.

The Courts and Race in the Orange Free State

Being close to the markets of the Cape, the Boers of the Orange Free State developed a far more prosperous and well-organised community than did their neighbours in the Transvaal. Summing up the requirements of a rural folk who, though sturdy enough, were immune neither to illness, sin nor covetousness, a leading Free State jurist wrote in verse that the greatest needs of the country were for doctors, clergymen

and advocates. As far as the supply of advocates was concerned, some of the farmers sent their sons to the Cape or abroad for legal education, whilst the few professional men in the country almost invariably did the same, but the greatest source of recruitment was importation from the Cape Bar. Not many countries have taken the chance of entrusting their destinies to law professors, but the Free State did so, and with signal success, when it invited a law professor from Cape Town to become its President (J. H. Brand, 1863–1888). Under his influence a High Court consisting of three judges drawn from the Cape Bar was instituted in the following decade, from which time onwards Cape legal men dominated political and judicial life in the Republic. The first Chief Justice later became President, and then when he retired from the Presidency he was succeeded by another High Court judge (F. W. Reitz, followed by judge M. Steyn). The Republic's best-known lawyer and last Chief Justice was Melius de Villiers, brother of the Chief Justice of the Cape, and sitting with him on the Bench was the future Prime Minister of South Africa, J. B. M. Hertzog.

So great was the prestige of the judges that when one of them ventured outside of Bloemfontein on the court's first circuit, he was received with immense enthusiasm, and returned home suffering from nervous strain and exhaustion. Just as in an earlier period imported British judges had lent panache to Cape society, so imported Cape advocates gave distinction to Free State life; and if the Cape Bench was invigorated by the addition of anglicised Afrikaners, the Free State Bench came to be strengthened by afrikanerised Scotsmen (Buchanan, McGregor and Stuart). One of this latter group founded a Society for Winter Evening Entertainments in Bloemfontein to whose members he read passages from Dickens; when opening the town's first gymnasium, which he named St Andrew's College, he made an appropriate speech and then, it is said, proceeded in full dress to amaze the audience with some difficult turns on the parallel bars (Buchanan).

This latter judge was in fact the only member of the Free State judiciary who had not received his legal training abroad. All the other judges and a number of other lawyers had spent some years in England and Holland, usually attending universities in both countries, the most popular being Cambridge, Oxford, Leiden and Amsterdam. In their judgements they quoted freely from Latin and old Dutch texts, as well as from the Cape law reports which had great persuasive power but were not binding on them. Although Dutch was the main medium of the courts, the judges and magistrates were normally fluent in English

and followed British styles and procedures and applied the English law of evidence. Roman-Dutch law was maintained as the common law of the country, despite the complaints of many burghers that it was inaccessible, and the objections of a few staunch Calvinists that it was apparently connected with Rome.

In civil matters the judges sat alone, but in criminal cases they were assisted by a jury consisting of white Dutch-speaking burghers. Most criminal trials involved the prosecution of Africans, and whenever Africans appeared as accused persons or as witnesses, interpreters were made available to them. It seems that Chief Justice de Villiers spoke a particularly pure form of Dutch, because once when he tried to address an African in Afrikaans, the African replied in Afrikaans that he was sorry but he did not understand English. (Afrikaans was the colloquial form of Dutch, and is now the main language of Government in S.A.) Although the criminal law was directed mainly against Africans there is evidence that the pious and death-fearing burghers took their jury service very seriously and were reluctant to sentence men to death or help with executions. The lack of proper facilities for carrying out hangings, suggests that capital punishment was not a frequent occurrence in the Free State. A Bloemfontein newspaper spoke out strongly against the death sentence, and at least one leading judge is known to have disliked it intensely. In one case the death sentence was imposed on a white man for murdering a coloured man—which he did for gain—but since he was an Englishman and not a burgher, his life was saved as a result of diplomatic pressure. Judging from his name Hofman, an accused in another matter who was actually executed for the murder of two coloured men, might well have been white. There was no rule against the imposition of whipping on white men, but in practice corporal punishment seems to have been used almost exclusively against Africans. The prisons were few and small, and at one stage a special directive was sent to judicial officers requesting them not to fill the jails up unnecessarily with convicts. A provision which might have helped to empty the prisons was one to the effect that convicts might be ordered to work for farmers, with or without pay.

The only comprehensive and accessible records of the judgements of the High Court are contained in the brief quarterly digests produced by the Cape Law Journal . They carry sufficient detail, however, to demonstrate that the Free State judges were learned in the law and were not afraid to assert themselves against the Executive or the Legislature. Thus in one matter Judge Hertzog, foreshadowing his later political

views on the sovereignty of the people (volk ), directed that a man who had defamed members of the Legislature could not be found guilty of lese majestatis , because only the people and not the Legislature were possessed of majestas . In another matter the Chief Justice provoked a constitutional crisis by declaring ultra vires a statute which purported to penalise persons who libelled the Legislature. The matter aroused considerable controversy, meetings were held in various parts of the country, and in the end the Legislature was compelled to back down.

Yet the judges were less willing to interpret the constitution against the Legislature when it came to racial matters. Two Indian traders sought to have a law declared ultra vires which barred all Indians from dwelling in the country save under permit from the President. They claimed that the law was discriminatory and in conflict with a section of the constitution which stated that "all shall be equal before the law". The High Court held that this provision did not bear the meaning which the applicants claimed for it, and ruled that the statute was valid. As a result of this ruling, the Orange Free State became an almost entirely 'Indian-free' territory, and has remained so to this day.

In another case, however, the judges declared a municipal regulation ultra vires which sought to oblige African women to buy weekly passes. The basis of their decision was that the enabling law did not authorise such a regulation; the court held further that approval by the Executive of the regulation and publication in the Gazette could not give it a legal validity which it had never possessed. (Interestingly, African women in the Free State were in later years to be pioneers in African anti-pass struggles.) The pass laws were, however, strictly enforced against African men; that officials took advantage of these laws corruptly to extort money appears from at least two matters referred to in the Law Journal .

There is today a widely held belief that the race-conscious Boers followed a policy of separate development or apartheid with regard to African tribesmen, whereas the liberal Englishmen pursued a policy of integration; in fact the position was nearer the reverse. The Free State was probably the most racially integrated territory in southern Africa, in the sense that the African population there was more absorbed into the white rural economy and had less opportunity to maintain its tribal identity than anywhere else. (Even today the Orange Free State province has a larger proportion of Africans who are Christian and who

speak Afrikaans or English, and a smaller proportion living under tribal conditions, than any other province.) It has been suggested that had the Free State commandos succeeded in defeating the Basuto people, the kingdom of Lesotho might in fact have been granted some autonomy, but the way captured territory was in fact divided up amongst the Boers does not support this contention. For a while there was a small area in the Free State—"this island in the ocean", as the Chief Justice called it—where African tribesmen were permitted total independence. During a succession dispute, a chief who had been sheltering in Basutoland crossed Free State territory to get to this independent enclave, and then proceeded to murder its ruler, but he was acquitted by the High Court on a charge of treason, on the grounds that he was an alien who had committed his offence outside the jurisdiction of the Free State. Despite, or perhaps because of, this verdict, the Free State President thereupon annexed the small tribal homeland.

There was no judicial segregation in the Free State as there was elsewhere in South Africa, and the High Court entertained proceedings in which Africans appeared as litigants, such as disputes over deceased estates. Tribal law was never recognised as a system and no recognition was given to marriages contracted according to tribal custom. Whether the intending spouses were black, brown or white, the only valid marriage in the eyes of the law was one performed according to Roman-Dutch law. This led to a conflict in the minds of the legislators between their Calvinist desire to promote Christian union and their white Afrikaner dislike of having too many Africans using Church and State facilities. As one commentator recently put it, the burgher ideal with regard to African marriages was a simple, monogamous union solemnised by a separate minister in a separate church, out of sight of the white congregation and without uproarious celebrations which kept people away from their labours and gave them a large appetite for meat (Simons).

Thus the court system in the Free State allowed no autonomy to tribal law, and operated as a single, white-dominated judiciary which tried all civil and criminal disputes recognised by Roman-Dutch law or statute, whatever the race or status of the litigants. Only in some very small areas did tribal law receive recognition. It may be said, then, that the administration of justice in the Free State furthered both racial domination and racial integration at one and the same time, domination in the form of white supremacy, and integration in the form of involvement in a common economy and culture.

Law and Race in the Transvaal

The Transvaal High Court was instituted in the 1870s not to satisfy a need expressed by Transvaal burghers, but as a desperate attempt to stave off annexation by the British. The objective was to prove that the Transvaal was capable of supporting a modern administration without outside direction; the judges, however, had to be attracted from the Cape, which was no easy task in view of the Republic's bankrupt treasury. The man who volunteered for the hazards of establishing and presiding over the court was a young Cape advocate named J. G. Kotze. He had studied in Holland and England, where, as he was to say later, he had been greatly influenced by English judges and their even-handed justice. While at the Cape Bar he had travelled the Cape Circuit with Chief Justice de Villiers.

The 'boy judge', as Kotze was called by the visiting novelist Anthony Trollope, was pleased that at his swearing in ceremony he wore a wig, since it hid his youth, yet guided by the motto 'onward, upward and true to the line', he developed into a strong and erudite judge who dominated the court for twenty years, writing 90 per cent of its judgements, and preparing its first law reports. From his early years on the Bench, however, his relationship with the Government was uneasy, and eventually he came into conflict with President Kruger and was sacked for daring to invoke a testing right against statutes passed by the Legislature.

Kruger was a barely literate farmer who believed that the only source of worthwhile knowledge was the Bible. The contrast between him and the urbane lawyers who occupied the Presidency in the Free State was most striking, and was well illustrated when a former Chief Justice and President of the Free State went to the Transvaal to become Kruger's State Secretary (Reitz). This man's son, who had travelled to Europe and been introduced to Kings and Presidents, later wrote that he was amazed to find that Kruger's wife kept dairy cows and sold milk to the neighbours (Denys Reitz). When a statute of her husband in a top hat was unveiled, she suggested that the hat be hollowed out and filled with water to serve as a drinking fountain for the birds. "My father and I laughed heartily at her simplicity," the young man wrote, "but we agreed that it was decent of her to have thought of such a thing." Yet Kruger was a strong, shrewd politician, close to his people in the way of an African chief. He gathered round himself expert and ardent lawyers from Holland and Afrikaner jurists from the Cape,

notably J. C. Smuts, and in the last decade of the century stood up with tenacious dignity to Cecil Rhodes and the forces of British Imperialism.

The Transvaal was always less stable than the Orange Free State, both in its boundaries and its institutions; the extension of overlordship over the African people took longer, and the patterns of land ownership were more diverse. In theory the Transvaal Government tried to establish good-neighbourly relations with African tribal groups in the frontier regions, but the avidity of the burghers for land and labour proved more powerful than the restraining decrees issued in Pretoria. Thus the destruction of tribal independence, the appropriation of tribal lands and the conversion of tribesmen into servants, labour tenants and 'squatters' proceeded as strongly in the Transvaal as anywhere else in southern Africa. As in the Orange Free State, a multi-racial society of inter-dependent black and white communities developed, with the minority of white, Dutch-speaking burghers exercising political domination over the black majority. The constitution not only restricted voting rights to burghers, it explicitly laid down that there should be no equality between black and white in Church or State. The original version of the constitution provided that "half-castes to the tenth degree" were prohibited from being members of the Legislature, while a later version stated merely that coloured persons or bastards were excluded, along with persons with an openly vicious character, unrehabilitated bankrupts, and persons who were not Protestant. Englishmen were welcome to work in the country, but not to vote.

The rediscovery of gold in the Transvaal in the 1880s (it had previously been mined by Africans) added a new element of instability to political life, which complicated the functioning of both the courts and the governments, and indirectly brought them into conflict. A large influx of English-speaking persons from all over the world led to the creation of towns on the Rand which soon exceeded Pretoria in wealth and size. Hard on the heels of the prospectors and speculators came dozens of English-speaking lawyers, who began to press the claims of immigrants for the vote and to demand on behalf of their clients that English be allowed as an alternative to Dutch in court proceedings. They also argued that Johannesburg, which boasted of some of the greatest financiers and criminals in the world, should be given greater judicial status than that of a mere Circuit town, and complained of the inconvenience of having to travel to Pretoria for most civil work.

The Transvaal rapidly became economically the most advanced portion of South Africa, but its administrative structures, which had

barely coped with the needs of a scattered farming community, were unable to deal effectively with the problems created by the sudden emergence of vast mining towns populated by tough financiers and ruthless adventurers. To hand over power to the new immigrant community would have been to destroy the Boer character of the State, and this Kruger was not prepared to do. On this issue Kruger and Kotze were in substantial agreement. Thus Kotze backed Kruger during the period of the Jameson Raid, when financiers and lawyers in Johannesburg planned an armed insurrection to coincide with the entry into the Transvaal of a batch of soldiers under the leadership of Rhodes' friend, Dr Jameson. He was also firm on the need to maintain Dutch as the language of the courts. Thus in the well known 'Cyanide Patent Case' the costs of which reached the then record total for South Africa of £ 80,000, counsel suggested to the court that in view of the mass of scientific evidence and the fact that everyone concerned in the case spoke English, the formality of interpretation into Dutch be dispensed with. "However," wrote the Cape Law Journal , "the application was met by the enquiry from the Chief Justice: 'What is the interpreter for?' And that," added the pro-English Journal , "was precisely what counsel and everyone else engaged in the case could not understand."

Another point on which the two men saw eye to eye was that Africans should have the right to approach the highest judicial and executive bodies in the country. Kotze made this clear in a matter in which an African chief who was being held by the authorities without charge, applied to the High Court for a writ de homine libero exhibendo , the Roman-Dutch law equivalent of habeas corpus. Counsel for the state argued that the discriminatory provisions of the constitution deprived Africans of the right to approach the court for relief, but Kotze rejected this argument and declared that the court was "bound to do equal justice to every individual within its jurisdiction, without regard to colour or degree, except where in the particular instance the law expressly provides to the contrary". (When the chief was actually brought before court, however, Kotze ruled that he could be held on a warrant without trial until a rebellion in which he was allegedly involved was crushed.) A few years later Kruger stated in the Legislature that he believed in distinction in the social sphere—the greater the better—but as far as law and justice were concerned the highest body in the country should always be open to receive and consider requests and complaints, no matter from whom, even from the lowest.

In 1897 the Legislature promised to pass a law which would prevent Africans from suing burghers in the High Court, but by the time the Anglo-Boer War broke out two years later, it had not acted on this promise. The right of Africans to seek relief in the High Court may be regarded as more nominal than real, however, since the domination of white over black in the social field was so severe as to make it almost unthinkable that an African or person of mixed descent would dare to litigate against a white person. One of the effects of the opening up of the goldfields was to intensify the rigidity of laws aimed at controlling the movements and activities of Africans. Thus Africans were lashed for walking on the pavements of Johannesburg, and sent to prison for being off their masters' property without displaying their passes, which took the form of badges (hence the phrase 'badge of slavery'). So hostile were members of the Legislature to the idea of dark-skinned people making use of public facilities, that objection was even raised to coloured persons putting money in the Post Office Savings Bank, on the ground that it would be a flagrant violation of the constitution for the State to pay interest to coloured people. Dark-skinned people could not even claim familiarity with whites on a verbal level; a cab-driver who saw Kruger opening a bank and shouted "There goes Oom Paul" (Uncle Paul) was arrested by a member of the Legislature and fined £ 5 or 20 days by the Chief Magistrate of Pretoria for referring to the Head of State in such familiar terms. The barriers to approaching the High Court, then, were not technical but social. It might be said that even if the High Court was like the Ritz Hotel in that its doors were equally open to rich and poor, it would nevertheless have been prudent for a wealthy African to go round to the kitchen.

Discrimination against Africans was so explicit and all-pervasive, and reflected a subordination so rigid, that it was not Africans who used the courts to challenge discriminatory actions, but members of the small Indian community. Most of these Indians were traders who had entered the Transvaal from Natal, and whose status as British subjects theoretically entitled them to the protection of the British Resident in Pretoria. When under the guise of a sanitation law, they were ordered by the Transvaal Government to remove from their shops to a location where they would have to trade amongst themselves, some of them applied to the High Court for relief. One of the grounds of the application was that although the law under which action had been taken against them was supposedly designed to promote the health of the people, they had in fact been instructed to remove to what was an

unhealthy spot. Kotze rejected the application, holding that the Government's duty was an administrative one, and if it were not properly carried out then administrative rather than judicial channels should be used to provide a remedy.

Some years later the same point came up for consideration again in the High Court, which by a majority of two judges to one upheld Kotze's decision. The dissenting judge, who was a Hollander, said that the provision in the constitution prohibiting equality between coloured persons and white could have referred only to such coloured persons as already were in the Transvaal at the time the constitution was adopted, and could not be extended to give the Government power to do what it wanted with 'coolies' who came in afterwards. One of the judges in the majority, a Transvaal Afrikaner, held that the court was bound to accept the principle that every right possessed by the white man could only be exercised to a limited extent or not at all by persons of colour. Since the Government had to indicate by a clear definition what rights a coloured man could possess, in a case of ambiguity a law such as the one in question ought to be interpreted against the person of colour for whose benefit it had been enacted. The third judge, a Scotsman who had settled in the Transvaal, reluctantly decided that he was bound by the earlier decision of Kotze, which, although unconvincing to him, was not so clearly wrong that it should be reversed. He found it most singular that privileges should be granted by means of a law which consisted mainly of prohibition—if the Legislature had meant to bless, the language used by it sounded to him very much like a curse. Kotze's judgement had implied that Indians belonged to a lower level of civilisation, in which a place of trading could not be separated from a place of living, and in his view this was not a wholly indefensible proposition. He hoped, however, that the government would treat the plaintiffs, whom he described as 'Indian merchants', with fairness.

The ambiguity of the status of Indians in the Transvaal was well brought out by the visit there in 1894 of M. K. Gandhi, who went to Pretoria to handle his first major piece of litigation as a barrister. Gandhi found that he was received in friendly fashion by members of the Bar and by leading State prosecutors, and was even able to get a room in an hotel, but he was also rudely pushed into the gutter by a policeman when he walked on the pavement past Kruger's house.

As far as Africans were concerned, the law was seen not primarily as

a means of alleviating grievances or securing rights, but as an instrument of control relying mainly on whipping and imprisonment to achieve its objectives. The High Court had jurisdiction to impose as many as 100 lashes per offence, but generally on black people only, since for many years the law stated expressly that whipping should not be imposed on white men. In the early years of the Republic a white man was hanged for the murder of his nephew, but after the High Court was established it appears that execution, like whipping, was carried out on dark-skinned persons only.

For a long time the Republic possessed hardly any prisons, and it was not unusual for white prisoners to be handed over to the magistrate for safe-keeping in his home, while Africans were normally dealt with by summary whippings. The emergence in the 1880s of mining towns on the Rand, however, drastically changed the penal scene, and the number of persons received into prison in a year rose from less than 800 in 1878 to more than 28,000 in 1891. The simultaneous growth of an urban population and of the funds needed for its control was responsible for this extraordinary increase, which may be adduced as a striking piece of evidence in support of the proposition that in a stratified society more industrialisation and modernisation gives rise to more laws, more policemen, more warders and more prisoners. The great bulk of prisoners were Africans—in 1891 three-quarters were black and a quarter white—and those whites who were sentenced to terms of imprisonment seemed to have served only very short periods. Thus although 7,500 whites were received into prison during the year, only 185 were actually in prison on a day when a count was made. Seven years later, however, a count showed that the number of whites in prison on a particular day had risen to more than 2,000.

Not all the white prisoners, it should be mentioned, were criminals in the ordinary meaning of the term. In 1896 the members of the Reform Committee who planned an insurrection to coincide with the abortive Jameson Raid, were jailed for treason, and spent an average of about five months in prison. Prominent amongst the millionaires and lawyers so confined was the editor of the Cape Law Journal , who had recently moved to Johannesburg (Bell). The Law Journal , which was still being produced in the Cape, loyally campaigned on his behalf, and bitterly attacked the holding of prominent lawyers in "an establishment, which to say the least must be utterly unadapted to the detention of European prisoners, to say nothing of gentlemen accustomed to all the refinements

of a civilised life". In later years, however, the editor himself wrote that conditions had not been too bad in prison. Life for dark-skinned prisoners had been very hard, and on a number of occasions he had witnessed or got to know of coloured and African prisoners being flogged, placed in stocks or simply beaten for no reason at all. One sweeper told him that "if Baas (Master) knew how bad prison was he would never have come here", an observation which earned for its maker a cigarend. The Reformers, on the other hand, were regarded as political prisoners and allowed to wear their own clothes; they had none of the comforts of a modern jail, but a great deal more freedom. After being compelled to eat bad prison food for three days, they were allowed to receive a meal a day from their wives, who could visit them each morning. They slept on the floor, got water from a tap in the yard and bathed in a dammed up furrow. Their main complaint was inactivity, and to pass the time they played marbles and poker, drank whiskey and smoked cigars. The warders were at first very strict, but after one of the more disturbed prisoners had committed suicide, their attitude changed and the prisoners could get almost whatever they wanted. Thus a prisoner was told to push a whiskey flask deeper into his pocket where it could not be seen, and another one succeeded in getting transferred to a pleasant nearby hospital simply by complaining that he had got sunstroke playing marbles.

Unlike the Orange Free State, the Transvaal established separate machinery for the hearing of disputes between Africans, but the white-dominated, segregated structures set up for this purpose were never well-developed. At a time when the British exercised direct influence over the Transvaal, the Natal practice of combining judicial segregation with recognition of such aspects of tribal law as were not inconsistent with 'the general principles of civilisations', was adopted. At no stage, however, did the Transvaal recognise the legal validity of marriages contracted according to African custom. In fact the Transvaal was for many years the only South African state which actually had legislation to forbid tribal marriages, on the supposition that they were heathenish and polygamous. It has been pointed out that absorption into a money economy and the development of a migrant labour system proved to be far more injurious to traditional African marriages than any such law, which could not be effectively enforced, but the existence of such a prohibition does suggest that whatever the avowed aim of Boer policy towards Africans, it was not basically designed to preserve tribal institutions. The Transvaal Legislature not only illegalied tribal mar-

riages, it refused to permit 'coloured people' to be married according to Roman-Dutch law, so that for many years there was no system at all whereby Africans in the Transvaal could legally be married. Only in 1897 did the Legislature relent and permit Africans to marry by civil law, and then by the smallest majority after Kruger had assured members that the people wanted neither equality nor polygamy, and that the proposed measure would discourage both evils. Kotze, it should be noted, showed himself to be relatively tolerant towards African customary law, when he held that the second wife of an African accused should be protected by a spouse's privilege from giving evidence in a criminal trial against her husband.

It can be seen that neither Kotze nor Kruger was amongst the extreme repressionists with regard to Africans in the Republic. Kotze was influenced to some extent by British legal ideology, while Kruger belonged to a class of conservative farmers less aggressive in their race attitudes than the younger and more urbanised burghers, who sought to perpetuate in an urban setting rural inequality without the softening features of rural paternalism. Where the two men did disagree, and with increasing asperity, was not over relations between black and white but over relations between the judiciary and the executive. Kotze wished to see the judiciary become a powerful modernising institution, respected in the Transvaal as it was in the Free State and the Cape. Kruger did not object to the judges attending to ordinary civil and criminal cases, but he strongly opposed their taking a stand on questions which he thought belonged to the Legislature and the Executive, and he did not hesitate to reverse by executive action decisions of the judges which he felt to be injurious to the State. Unfortunately for Kotze, he received relatively little support from his colleagues, most of whom were very young and restless, and many of whom were Hollanders not well attuned to South African legal traditions. Judges were appointed and resigned with such rapidity that the Cape Law Journal observed that they were not altogether wedded to judicial office. The Journal also reported that the style of living adopted by some of the judges shocked a number of burghers; a zealous Republican mentioned that "His Lordship had appeared in spangles and danced upon a public stage 'Ta . . . R . . . . '. The Transvaal Legislature also noted whisperings about debts of the judiciary and other alleged Judicial pecadilloes." Kotze himself was not involved in these scandals, but he invited public criticism of himself and his office by standing for the Presidency in 1893, presumably in the hope of emulating the success of his colleagues

in the Free State. He obtained a derisory 85 votes, however, as against more than 7,000 each polled by his two opponents (Kruger and Joubert), and his position became weaker than ever.

Eventually in a series of judgements Kotze took up the position that the Legislature was enacting laws in an unconstitutional fashion, and claimed that the High Court had a testing right to declare such laws invalid. The immediate consequences of his decisions would have been to overthrow the law relating to the pegging of mining claims, while the long-term result would have been to invalidate nearly twenty years of legislation, including that which had sanctioned his own appointment as a judge. Kruger threatened to dismiss Kotze, and lawyers throughout the country divided on the issue, with Smuts supporting the executive and Hertzog the judiciary. The Chief Justice of the Cape intervened in an attempt to reconcile Kotze and Kruger, but his compromise arrangements broke down, and eventually Kotze was dismissed from office. Kruger scathingly told the Volksraad that he thought so highly of the dismissed Chief Justice that "were I to know this would help, I would have him placed in a lunatic asylum and wait until he is restored to health, in order to use his services again. His capacity was high, but he fell into error, in that he accepted the testing right, that principle of the Devil's." Kotze retired to the Cape and was only reappointed to the Bench after the Anglo-Boer War, when once more he became a distinguished judge, now free from controversy. Eventually he spent a total of nearly fifty years in all on the Bench, ending up as a member of the South African Appeal Court, where, in a belated gesture to the Indian community in South Africa, he was to adopt a liberal line of reasoning in direct contrast to his approach in the Transvaal of forty years before.

Law and Race In Natal

When the British took over Natal from the Voortrekkers in 1842, one of the conditions which they declared would govern their assumption of power was that there would not be in the eye of the law any distinction of colour, origin, race or creed, but that the protection of the law in letter and in substance would be extended impartially to all alike. This condition was never formally revoked, but by the end of the century Natal had developed a society in which race domination of whites over Africans and Indians was exercised as rigidly and perhaps with more violence than anywhere else in southern Africa. Far from softening race relations and bringing about a greater degree of equality,

the law and the courts became major instruments for the maintenance of stratification and privilege.

The first judge to be sent to Natal did lay claim to be administering justice equally to all classes, and it was his boast that within a year his just approach transformed the nature of crime in the Colony in a manner unsurpassed in the world (Cloete, 1848). In support of this claim he quoted figures for the two years in which he had sat on the Bench. In the first year thirty-four people appeared before him, of whom ten were Englishmen and Boers charged with assault upon Africans, while three of the accused were charged with murder and most of the remainder with canteen and housebreaking. In the second year, however, only four persons altogether appeared before him, one of whom was indicted for housebreaking and theft and the other three for fraud, theft and perjury, "offences belonging to and resulting from a more advanced state of society, and committed by persons of comparative respectability. . . . Now everyone may sit in peace under his vine and fig tree . . . enjoying the full confidence that every act of violence or oppression would immediately be punished by the Court."

This judge had been seconded to Natal from the Cape, where he had practised at the Bar after having studied abroad in Holland and England and having been influenced by English traditions of judicial independence and 'evenhandedness'. One example of his interpretation of evenhandedness, however, was to give to the Boers and English settlers only half of the immense tracts of land which they claimed for themselves and to allow Africans (who outnumbered the settlers by perhaps fifty to one) to live in locations on the other half. Many of the white settlers felt this award to be grossly unfair to them, and accordingly they were not displeased when he was dismissed from the Bench by the Governor, who accused him of disloyalty in refusing to strike out an affidavit which contained criticisms of the Governor. The Privy Council subsequently held this dismissal to be frivolous and void, but in the end it was the Governor, who happened to be strongly prosettler, who stayed on in office and the judge who returned to the Cape. The second judge to arrive in the Colony was a personal friend of the Governor, and although he was to become a noted expert on Roman-Dutch law, he was not conspicuous for his defence of African rights.

This was a time when the judges could have exercised a lasting liberal influence on the administration of justice in the Colony; an index of their authority was that more was spent on the Judicial Establishment than on the magistrates, police, prisons and interpreters combined.

Like the early judges at the Cape, they could have put their stamp on the Colony rather than have allowed the Colony to put its stamp on them, but it was not to be, and most of them were destined to echo rather than counteract the dominant attitudes of the white colonists, and to see themselves as the instruments of the administration rather than its watchdogs. Natal judges tended to be Colonial Office appointees with an authoritarian bent, or else colonists with relatively little legal training who had made their mark in politics rather than in law. There was no division between advocates and attorneys in Natal, and admission to practise could be obtained merely by sitting in court for a stipulated number of days in a year. Natal therefore never developed until after the First World War an elitist group of barristers on the English or Cape pattern, who regarded law as something standing apart from society in the same way as they stood aloof from the public. Until fairly recently the Natal Bench, with a few individual exceptions, was in fact regarded as the weakest in the country, and the editors of the South African Law Journal observed that "the light of learning shone dimly from the poorly printed pages of the Natal Law Reports". It was only after the First World War that a separate Bar was established under G. McKeurtan, whom many considered the outstanding South African advocate of this century, and it was only after the Second World War that the Natal Bench began to achieve as much prestige as any other in the country. Weakness in terms of style, erudition, and independence, however, was not necessarily conjoined with weakness in distributing punishments or upholding the authority of the Government.

It has already been mentioned that the Boer Republics were more integrationist than the British Colonies in the sense that they gave less recognition to tribal institutions and allowed fewer Africans to live in partially independent communities on tribally-owned land. Though white appropriation of land in Natal and Zululand was extensive and continuous, it was never as complete there as it was in the Boer Republics, and hundreds of thousands of Africans falling under the white administration continued to live under tribal conditions. For purposes of administrative convenience, a separate structure of rule was established for them in which the chiefs were incorporated as subordinate functionaries retaining some of their traditional powers subject to white supervision. Many decades before the Colonial Office propounded the theory of indirect rule, the Natal authorities adopted the expedient of investing the Governor with the powers of Supreme Chief, which placed

him at the apex of an authoritarian bureaucracy that proceeded downwards through white magistrates to African chiefs and headmen to African subjects. What began as a question of convenience hardened into a policy of segregation and colonial absolutism, that was to find favour throughout South Africa and emerge in modern times as the doctrine of apartheid or separate development. On the purely legal side, this policy in Natal led to the enactment of a code, frequently amended, which gave recognition to various aspects of tribal law, and made it applicable by magistrates to most civil matters in which Africans were litigants. A Native Court was subsequently established to hear appeals in matters litigated upon by Africans, and later converted into a court of first instance for all major civil and criminal matters involving Africans. On the political side the adoption of this policy marked a shift away from an earlier approach of attacking tribal customs as heathenish and barbarian. As the challenge to white supremacy passed from the hands of chief and diviners into the hands of urbanised workers, mission-trained teachers, ministers and clerks, a decaying tribalism acquired merit in the eyes of the settlers. Tribal law obtained more statutory recognition as its social basis crumbled. The Natal Native Affairs Commission set up to enquire into the Zulu (Bambata) rebellion of 1906 specifically suggested that polygamy might be regarded as a substitute for the vote; it maintained that the civil rights of the African compared very favourably with those of the European, since, "if for his own good he is restricted in the use of liquor, firearms and the franchise, he enjoys a much wider connubial experience than the European".

Provision was made for 'civilised' Africans to be exempted from the operation of customary law, but exemptions became increasingly difficult to obtain, especially when they were made the stepping-stones for attaining the franchise (by 1910 there were believed to be only six Africans on the voters roll in Natal). Interracial actions in which one of the parties was an African continued to be heard in the ordinary courts, and some important questions of succession involving African litigants only were eventually heard on appeal in the Supreme Court. Thus a Natal lawyer wrote incredulously to the Law Journal of the scene in the Supreme Court where a large crowd of Africans packed the chamber for three days of a hearing of an appeal, listening intently even though all the proceedings were conducted in English. The judgement of the Court of Appeal was interpreted to the Africans, he said, and the same roar of 'Bayete' (Hail!) resounded through the building as

had been heard when the judgement had been given in the court below (1891).

In addition to falling under a separate court system applying a separate system of law, Africans were also governed by a large number of statutes passed by the white Legislature at the behest of the white electorate. As the economy of the Colony developed, these laws, which dealt with matters such as taxation and master/servant relationships, were applied with more rather than less rigidity.

The Natal Supreme Court remained the country's leading judicial body, and although it handled relatively few cases compared to the magistrates' courts and the Native High Court, it had the prestige and the authority to moderate the more severe rulings of the other courts. Yet if some of the judges supported a policy of restraint towards Africans, and if Africans facing political charges sought desperately to be tried in the Supreme Court rather than in special military or Native Affairs courts, none of the judges campaigned as actively as did, say, Chief Justice de Villiers in the Cape, for a less punitive style of law enforcement in respect of Africans. Thus it happened that, in the face of stiff competition, Natal earned for itself the title of the 'lashing Colony'. In 1907 the comparative figures for flogging per annum in the different parts of South Africa were 1 in 400 males in Natal, 1 in 680 in the Transvaal and 1 in 1,100 (approximately) in the Cape.

Leading white Natalians spoke enthusiastically of the whip as a solution to a variety of problems, ranging from cattle-theft to sex crimes to insubordination. Thus after two Africans were sentenced to terms of imprisonment plus 150 lashes each, to be received in three annual instalments, the Natal Witness wrote: "By Jumbo, if only we could publish such like punishments all over Kafirdom, we should soon, I guess, see an end of cattle-stealing" (1866). A member of the Legislature referring to alleged attacks by African men on white women declared that "if a rascal who has attempted to do this violence were branded as he ought to be, with a hot iron, given 100 lashes, and then hanged in public, and the Kafirs were made to know why . . . we would stamp this thing out." It was asserted that any attempt to deal with Africans according to the white man's conception of law and justice would only be interpreted as weakness, and accordingly the whip should be used because it was a form of punishment which the Africans respected. "Nothing but the lash will make them understand that we are in control of them."

By way of explanation of these severe opinions, the South African

criminologist quoted in the earlier chapter on slavery remarks: "The presence of primitive savages in the small towns of Natal as domestic servants, purchasers of goods or simply as layabouts, created special kinds of criminal problem." To begin with, he writes, there was the danger of sexual assaults on white women and then there was the problem of stock theft; he presents no evidence, however, that assaults on white women were prevalent, and concedes that the severe floggings imposed did little to keep the number of stock thefts down.

The amount of flogging inflicted appeared to decline for a period after 1875, only to rise again after 1890. This temporary decline might have been related to the construction in the last quarter of the century of a number of prisons in the Colony, so that imprisonment could more freely be imposed as an alternative to whipping. Yet many white colonists complained that Africans enjoyed being sent to prison, where they got free board and lodging and from which they emerged as heroes. Notwithstanding these alleged advantages, many Africans did all they could to escape from prison, and for some years all Africans were bound by chains to prevent any of them from escaping. When the prison population soared, however, chaining was no longer practicable, and only special risk prisoners working on outside labour were shackled. By 1894 nearly 30,000 prosecutions were brought in the Natal courts, all but approximately 500 in the magistrates' courts. The prison population on one day in that year was nearly 1,200, of whom 77 were whites.

By the turn of the century more than 20,000 persons were being received into prison each year, of whom approximately one-fifth were white. The daily average prison population a short while later was 2,700. The total population of Natal at the time was approximately 900,000 Africans, 100,000 Indians and 100,000 whites, and the relatively high proportion of whites going to prison-10 per cent of the population contributing 20 per cent of the prison intake—could partly be accounted for by the reluctance of magistrates to sentence whites to corporal punishment.

The prison regulations classified prisoners into three groups, Africans, Indians and Europeans, but the definition of Europeans was unusual in that it included "all persons of European descent, Eurasians . . . , American Negroes, French Creoles and West Indians", and seems originally to have been dictated by dietary rather than racial considerations. In practice it was used to segregate whites from Africans and Africans from Indians. Such segregation was not rigid, however, and black,

brown and white prisoners were frequently sent on outside working parties together. In one prison the status of prisoners was clearly reflected in their bathing order; white prisoners were permitted to bath twice a week, dark-skinned prisoners only once, in the same water and after the whites had finished their second bath.

Ironically it was Africans themselves who financed the machinery which was used for their control. In the process of Natal's modernisation, huts were taxed so that prisons might be built. If Africans defaulted on their tax for a year, then they were sent to prisons erected out of the taxes they had paid in previous years. By 1905 the number of Africans prosecuted exceeded 45,000, most of whom were charged in the magistrates' courts for statutory offences. More than 4,000 were charged with desertion and insubordination under the Masters and Servants laws, and a further 1,000 were prosecuted under borough regulations for such crimes as being on the streets at night after curfew hour.

The magistrates were appointed by the Department of Justice, but in their dealings with Africans they acted under the Department of Native Affairs. Many of them were totally untrained, and all were subject to the pressures of white colonists whose interests, with a few exceptions, they tended to put above those of the Africans who appeared before them. For a number of years the police in country districts fell directly under the magistrates' control, who first worked up the evidence against the accused and then sat in judgement upon them. Some of the magistrates made no secret of their hostility towards Africans, and one behaved so roughly towards suspects that he helped precipitate a minor rebellion and was reprimanded by the Colonial Secretary. Defending himself against charges of improper conduct he said, "One of the natives was most insolent, and would not even answer any of the questions put to him, upon which I told (my head constable) to strike him, which he did, giving him about six strokes with a riding sjambok". When the African still refused to answer, the magistrate, satisfied that he "was dealing with men who had no inclinations to keep the law", used a plan "often practised during the Zulu War to gain information from prisoners", which was to take one prisoner aside and fire a revolver over his head and then to threaten the other prisoner that he too would be shot if he refused to co-operate. In the early years of the twentieth century, when twelve Africans who had attacked the police were executed in public by firing squad, the magistrate wrote that he regretted the passing of the good old days when he had seen six Africans

publicly hanged before breakfast. Eventually he ended his career as a member of a special Commission established to bring about better relations between Africans and whites (Addison).

Next to the magistrate, the local police sergeant was for the majority of Africans the most important representative of white authority. The Natal Police acted as a military force as much as a constabulary, and were referred to as the country's first line of defence against an African rising. They did to some extent investigate crime, but this was a relatively minor aspect of their duties, which have been described as having been to protect white property and to ensure an adequate supply of labour. Various police forces in Natal were eventually consolidated into one organisation, which proved to be so successful that the Natal scheme was subsequently adopted throughout South Africa; as proof of its success, a police-historian pointed out that in the first year of its existence the number of arrests in the Colony rose from 2,500 to 16,500 (1895).

The white colonists in Natal were never satisfied with their supply of African labour, which was either too small because Africans refused to leave tribal lands, or too great because 'surplus natives' refused to leave white-owned lands. The main complaint was that Africans migrated too frequently and were too undisciplined to undertake heavy farm work, and to remedy this deficiency thousands of labourers from India were imported into the Colony. The occasion for their introduction was the opening up of sugar plantations in the coastal regions in 1860, which led to the second major introduction in South African history of manual labourers to perform heavy farm work under close supervision. Unlike the Cape slaves, however, the indentured Indian workers were entitled to their freedom after serving a five-year contract period, and many of them plus a few non-indentured fellow country-men eventually settled in Natal as permanent residents. By the end of the century their numbers equalled that of the whites, but they were almost entirely excluded from civic rights and subject to all the rigours of colour discrimination. As far as the criminal law was concerned, the chief offence for which the police watched was refusal of Indians to work for the employer to whom they were bound by contract, while in the civil field the small class of Indian merchants soon began to support a relatively large amount of litigation. Like Africans, Indians were totally excluded from the ordinary Judiciary at all levels, but no segregated court system was created to hear matters in which they were litigants. An Indian barrister did manage, however, to become enrolled

at the Natal Bar, and so to break down the de facto colour bar which had operated to keep the legal profession throughout South Africa in white hands. This pioneer was M. K. Gandhi, who was embarking upon his first large case since being called to the Bar in London. He had intended to stay in South Africa only for as long as it took for a dispute between two Indian merchants in Durban and Pretoria to be disposed of—characteristically he arranged for it to be settled and for the parties to be reconciled—but he ended up by spending twenty years in the country, during which time he developed the technique of passive resistance and worked out the major elements of his personal philosophy. He wrote later that it was his experience as a non-European lawyer in South Africa that taught him what life must be like for an untouchable in India. Despite the fact the he was more highly qualified than many lawyers practising in Natal, the Natal Law Society tried to prevent him from being admitted to the Natal Bar; the judge brushed their objections aside, but then humiliated Gandhi by ordering him to remove his turban forthwith. Gandhi's status in Natal society was not determined by his profession but by his race. Neither the fact of his having taken elocution, French and dancing lessons in London nor his foppish dress or excellent manners gave him access to the homes of his white colleagues in Natal, though a small number of them, including one man who later became Attorney-General, were quite friendly towards him. He was exposed to so many indignities, such as being thrown off a train, made to travel on the outside of a carriage and refused admission to hotels and barber shops that it came as a relief to him to find that he was not being singled out because of any personal inadequacy. It seems strange that life for Gandhi as a British Indian seemed less beset by obstacles in the Boer Republic of the Transvaal than in the British Colony of Natal, but possibly the rather chaotic social situation on the Rand and in Pretoria favoured him at the time. It was the very determination of the white colonists in Natal to impose restrictions on Indians there, and their greater capacity for doing so, that converted Gandhi from being an ordinary lawyer bent on a career of self-advancement into a public leader dedicated to the progress of his people. At the turn of the century Gandhi was joined at the Bar in Natal by a second Indian, R. K. K. Khan, who appears to have had a successful practice, because he died a wealthy man having made substantial charitable bequests.

Gandhi gradually gave up private practice, and there was far more work from Indian clients than Kahn could handle, so many white

attorneys prospered on the basis of their Indian clientele. For their part, the Indians regarded the white attorneys as their eyes and ears. The position was different with regard to Africans, especially in the countryside, where many of the magistrates looked askance at attorneys who appeared on their behalf. The objection was raised that the authority of the magistrates and of the law would be weakened if it was seen to be questioned by lawyers during argument or on appeal. Here again there was a contrast with the Cape, where Chief Justice de Villiers had stressed that justice evenly done was the best means of assuring African submission to the law.

The historical experience of Natal provides a useful corrective to the notion that all harsh laws and attitudes proceeding from white to black in South Africa had their origin in slave society, the Boer Republics and the Afrikaner people. As far as the administration of justice was concerned, the relative efficiency of police and magistrates in Natal meant that racially differential laws there bore more severely on Africans than they did in either of the Boer Republics. It is true that the small body of whites in the Colony who were sympathetic to Zulu interests, prominent amongst whom were Bishop Colenso and his daughters, did on a number of occasions try to use the Supreme Court to protect African leaders from arbitrary actions on the part of the military or the civil authorities, but the amount of success they achieved was slight. On the whole their experience was that writing letters to friends in the House of Commons in London was more efficacious than submitting applications to the Supreme Court in Natal. In its daily administration of the law, the court system was an important agency for maintaining the domination and protecting the property of the white settler community.

It is significant that in the one major case in which the judiciary could be said to have stood up in any noticeable way to the pressures of the majority of white farmers and officials, both the presiding judge (Smith) and the leader of the defence team (Schreiner-head of the Cape Bar) came from outside the Colony; it may be claimed that in this particular matter, international support for the accused counteracted the prejudiced atmosphere in Natal itself. The case was the prosecution of the Zulu king Dinizulu on a charge of treason, shortly after 3,000 Africans had been killed by Colonial forces, for taking part in what has been described as a reluctant rebellion against the poll tax. Acquitting the king of twenty out of twenty-three counts, the judge sentenced him to what was in effect three years' imprisonment, heavy

enough to cost him his throne, but still a relatively light punishment against the background of massacres, executions and floggings which had preceded the trial. The South African Law Journal , commenting on what was really an exotic judicial experience for Natal, observed that "throughout South Africa the trial and sentence of Dinizulu were looked upon as a vindication of the justice and fairness of the white man in his dealings with the natives" (1911). It might have added that in the eyes of most white Natalians there had been too much justice and fairness, for one of the local lawyers in the defence team was to complain that his appearance on behalf of the chief completely ruined his practice and led to his being socially and professionally ostracised by the white community.

A Natal judge had recently declared that lawyers were a great curse to the natives, and the Chief Magistrate of Zululand had reiterated the view that lawyers undermined the authority of magistrates and the Government, adding that he knew of an extraordinary case of a coolie practising in the High Court-he was sure this man touted, but could not prove it. Finally, the Acting Chief Justice had spoken with regret of the vanishing simplicity of Africans. He felt that an educated African was generally a less useful member of society than an uneducated one, and supported the use of direct taxation to compel Africans to work more. In his experience, Africans of forty or fifty years earlier "were all civil and content with low wages and were more satisfactory in every way as servants. . . . The change from barbarous severity to civilised leniency has upset their equilibrium."