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.