PART ONE—
THE HISTORICAL SETTING

Chapter One—
Law Enforcement and Race Attitudes in a Slave-Owning Society:
The Dutch Settlement at the Cape 1652–1795

The modern legal system in South Africa today, with its flourishing legal profession, bustling courts, vast prison population and busy gallows, had its humble beginnings in the small refreshment station established by the Dutch East India Company at the Cape in 1652.

The first Court of Justice met in a hall in the centre of the Commander's earthenwork fort. The setting was exotic, the judges untrained and the procedures, especially in criminal matters, barbarous by modern standards. Round the walls hung skins of lions and leopards and the polished horns of slain buck, whilst opposite the entrance stood the figure of a stuffed zebra. The judges consisted of the Commander and his advisory council, none of whom were legally trained. They made no claim to be independent from the Executive, in fact they were the Executive; nor were they separate from the Legislature, for inasmuch as they had power to assist the Commander in framing local decrees they were the Legislature as well. The multi-purpose hall in which they met was also used as a Church on Sundays, the zebra being moved out during divine service. This unity of functions was not inappropriate for a tiny refreshment station, but it caused increasing strain when the settlement expanded and gave birth to a large class of independent farmers with interests separate from those of the Company.

The Dutch settlement was never more than a small enclave in the southern African sub-continent, and even after a century and a half of development it did not impinge directly on the lives of the great majority of inhabitants of the territory now known as South Africa. It was governed primarily as a trading station, a half-way house for ships sailing to and from the East Indies, and few of its institutions survive in immediately recognisable form today. Roman-Dutch law-a late Middle Ages inter-marriage of Germanic custom and Roman lawstill exists as the common law of South Africa, but the contribution made to it by the Dutch courts at the Cape was nil. Yet the period of Dutch settlement was of great importance to subsequent South African history, since the little victualling depot became the base for later white

penetration and it was through importation of slaves and contact with the indigenous inhabitants that the dominant white attitudes towards colour and labour were first nurtured.

Although at first the Commander's Court operated largely as a court martial with jurisdiction only over Company servants, when the settlement expanded the court broadened its character and began to handle a variety of cases, both criminal and civil, involving a variety of persons-Christian and Moslem, bondsmen and free, men and women.

The society that developed in and around the settlement was a multiracial one in which Company servants, colonial settlers, slaves, manumitted slaves, Khoi Khoi (so-called Hottentots) and their descendants intermingled in a single legal order. The court enforced inequalities of civic status between owners and slaves, masters and servants and white and coloured, but maintained an identity of personal law. Save for limited recognition of Islamic law given to non-slave Moslems with regard to matters of family law and succession, all inhabitants, regardless of colour or status, came under the Roman-Dutch law and such statutes as were of local operation.

Most legal historians are agreed that the laws at the Cape were in a state of great confusion, and that they were generally administered in an arbitrary fashion by untrained judges. A Commissioner sent to enquire into the government of the Cape during the last years of Dutch rule exclaimed in a much-quoted statement: "Behold the sorry state into which the administration of justice has fallen!", and the most that even a relatively sympathetic modern historian could claim on behalf of the Dutch legal system at the Cape was that it was 'viable' (Visagie).

The Cape settlement was in effect a colony of a colony, being subject to the control of the Company's overseas headquarters in Batavia. which which in turn was subordinate to the Directors in Holland. An endless stream of statutes and instructions flowed from both sources to the Commander, later called the Governor. In addition a vast mass of local decrees were issued, frequently conflicting with each other and with the Batavian ordinances. Since the Cape did not possess any form of printing press until the beginning of the nineteenth century, promulgation of new laws took the form of public declamation or announcement in church; the decrees in manuscript were then filed away in the Governor's office. The court itself lacked precise instructions on how it should conduct its proceedings, directives being cast in such general form as: "The Governor must be gentle, godfearing, friendly and courteous, ready to converse with and aid the good, but severe and

terrible to the wicked" (1685). The court judgements were very bare, containing merely the verdict and such authorities as had been quoted in argument, with the result that no body of precedent grew up for the guidance of later judges. If there were too many statutes, there were too few textbooks, and by 1739 the law library attached to the court contained only ten books, though this might have been regarded by the judges as a virtue rather than a deficiency.

There do not appear to have been many lawyers practising at the Cape during the period of Company rule, but court records mention the name of an advocate as early as 1688 followed by that of another one in 1706. By 1715 the question of attorney's fees had already become an issue, preceding in priority by three-quarters of a century the question of what rules should govern the formal admission of attorneys. In 1791 four attorneys were admitted, followed by a fifth the next year and a sixth the year after. Advocates and attorneys performed functions roughly similar to those of barristers and solicitors in England, with advocates having the higher official status and being entitled to wear hats in court.

Probably the most important of all the officers of court was the Fiscal, who from 1688 was called the Fiscal Independent because from then onwards he was appointed by the Directors in Holland and was responsible to them rather than to the local administration. His main duties were to defend the property and revenues of the Company, and to initiate prosecutions of criminal offences. In a general atmosphere of petty extortion the Fiscal was the most oppressive of all officials, and since he personally received a third share of all fines imposed he was well placed to enhance his fortune through overzealous or fraudulent use of his office. One writer described him as combining the acuteness of the lawyer with the greedy watchfulness of the customs officer, and to this day the predatory butcher bird in the Cape is popularly known as the Fiskaal.

The Company's monopoly of trade with passing ships and its exclusive control over the importation of slaves limited the amount of civil litigation, and obliged farmers with claims against the Company to seek their remedies by petition to higher authority rather than by suit in the local court. Law enforcement at the Cape was thus at first largely a matter of maintaining Company discipline, protecting Company property, and guarding Company morals but later it included regulating relationships between masters and slaves and masters and Khoi servants.

The introduction of slaves to the Cape was destined to have a profound effect on master-servant relationships in South Africa, and to

establish the pattern, early recognised in legislation and judicial attitudes, whereby privilege was associated with racial type. Factors of race and skin colour, however, played little or no part in determining the social attitudes of the first Company servants and settlers, whose behaviour towards groups and individuals was conditioned largely by whether or not such persons were Christians, rather than by whether they were black, brown or white. The social and legal gap that existed between Christian and non-Christian could be crossed by means of baptism, which, particularly in the case of women slaves, opened the way to marriage and full legal and social integration into the Christian community. Thus the first Dutch commander arranged a special bridal feast in his home to celebrate the marriage of his surgeon to a Khoi woman, and many other marriages were contracted between Dutch settlers and freed women slaves. The most popular as well as the most ardently Dutch of all the Governors at the Cape in the eighteenth century was in fact the son of an inter-racial marriage.

As the number of slaves increased, however, what had started off as a means of cheap labour became a settled institution, so that the slave was no longer merely an unpaid servant but a valuable piece of property who contributed as much to the owner's status as to his patrimony. Most labour, skilled and unskilled, was done by slaves, and whites became increasingly disinclined to suffer what they considered to be the degradation of doing work fit for slaves. Gradually it came to be thought by colonists that slavery was the proper condition for all dark-skinned people.

Slaves were imported from all the many regions where the Dutch East India Company traded, while their number was added to by West Africans seized as prize cargo from British, French and Portuguese slave ships. The increase in the proportion of slaves to colonists is given in the following table:

The relative smallness of the Cape settlement can be gauged from the following figures estimated for the year 1790 for other slaveholding societies. In the United States of America there were 757,000 blacks, all but eight per cent slaves, and consituting twenty per cent of the total population. In the British West Indies there were 455,000 blacks, who made up eighty-six per cent of the population. In the French colony of Saint Dominique 450,000 blacks, of whom six per cent were free, accounted for more than ninety per cent of the population (Brion Davis).

Most of the Cape slaves were employed on heavy domestic or farm work, but others were used as cooks, musicians or artisans. ("Jason, of Madagascar, appears to be of good character, and told me after I had purchased him that he could cook and knew how to make all kinds of pastries, sweet meats, marchpanes and other sweet things, and could play on the flute, hautboy and French horn.")

Life for household and artisan slaves was much easier than for those who worked in the vineyards and wheatfields. Many of the children of the former went to slave schools where they were taught by slave teachers, while some sat alongside their masters' children at general schools. A small number of artisans and pedlars were even permitted by their masters to trade on their own account, and a few were manumitted by will on the death of their masters. (However, only 893 slaves were manumitted between 1715 and 1792, mostly as a result of purchase by free relatives or friends.) Good conduct, however, often reduced a slave's chances of manumission by raising his economic value.

Those slaves who worked as farm labourers not only had to perform arduous work but were grouped by their owners, who wished to achieve the maximum discipline for the minimum cost, into large and tightly supervised field-gangs. Thus one of the consequences of the introduction of slavery at the Cape was the development of extensive rather than intensive agriculture, since it was uneconomical for the colonists to supervise small groups of slaves. The sons and grandsons of small-holding European peasants therefore became the owners of large semi-autonomous estates, exercising paternalistic control over slaves who were closely bound to them and with whom they were in constant contact. One writer has suggested that it was these slave-worked farms which were to constitute the ideal model of race relations for later generations of white South Africans, and that in its milder form it was slavery that provided the basis for 'Cape liberalism"

which he felt could better be described as 'Cape paternalism' with an injection of nineteenth century British humanitarianism (Van den Berghe).

"Whereas the social conditions of slaves varied greatly, their legal condition was rigidly defined. The Dutch common law relating to slavery was based entirely on the well-developed principles of the Roman law of slavery, and long after slavery was abolished in Holland, these principles were applied in the courts of the overseas settlements. When the Fiscal was asked by the British early in the nineteenth century to prepare a report on the law relating to slaves at the Cape, his main source of reference was the Digest of Emperor Justinian published fourteen centuries earlier. This provided that slaves were the property of their masters who had bought them or who had owned their mother at the time of their birth. They could be sold or hired out at the will of their master, and on their master's death they passed with his other property to his heir. A purchaser of a slave could sue the seller for rescission of the contract or reduction of the purchase price for any latent defect found in the slave.

The law of slavery has rightly been described as practically an enumeration of the rights of the master, but provided a slave obeyed all lawful commands he was entitled to food, clothing and shelter and protection from bodily injury. By and large the slave was the object rather than the subject of rights. In addition to being liable to punishment by the court for ordinary contraventions of the law he could also be punished directly by the master for what were called domestic offences, such as carelessness, disobedience, drunkenness, impudence, desertion, minor household thefts, and other similar offences. For these misdemeanours the master could by statute impose a whipping with a sjambok of up to thirty-nine lashes, which according to one critical observer, was loosely interpreted by some farmers as a whipping for as long as it took the farmers to smoke a pipeful of tobacco (Barrow). More serious offences had to be reported to the authorities, who alone had the right to imprison a slave or place him in irons, save that as a temporary measure to prevent escape the master was permitted to impose physical restraints.

A slave had no legally recognised dignity which could be injured, but a corporal offence against him was punishable according to the circumstances. Unlawful and intentional killing of a slave was technically murder, though the fact that death was caused by excessive punishment was regarded as an extenuating circumstance. If a slave was injured or abducted it was not he but his master who could maintain

an action, which was for damages suffered for financial loss to the master. Discontented slaves could complain to court officials of ill-treatment and if their complaints were verified then their masters were obliged to sell them. If, as was frequently the case, the officials held that the complaints were ill-founded then the slaves were liable to severe punishment from the court in addition to possible retribution from their masters. One slave complainant, for example, was chained to a wheelbarrow and sent to Robben Island for life, and it was not surprising that slaves tended to express their grievances through arson, sabotage and desertion rather than through official channels. In order to control ill-treatment, the Company decreed at one stage that the shackling of slaves be performed only by the Company blacksmith and that no slave be buried without prior official examination. There were also cases in which the court imposed severe sentences on slave-owners who had inflicted lethal thrashings and torture on their slaves, but not even the most heartless killings led to the execution of a master. The evidence of slaves could be received in court even though not given on oath, subject to a judicial discretion as to its credibility.

There were no large-scale slave rebellions, except in the imaginations of the colonists, but there were a number of minor revolts, and many slaves attempted desertion. Some absconders stowed away on passing ships, but most fled to the interior where the more successful ones grew food, fished and ate berries under the protection of the Khoi Khoi, whilst the others led the desperate lives of outlaws. Where the masters were not strong enough on their own to punish insubordination or arson or to recapture escapees they could call upon the services of the garrison at the Fort. The slow-moving, rank-conscious mercenaries were not, however, the most effective men for giving chase, and as time went on the colonists' militia and frontiersmen's commandos did most of this sort of police work. Vengeance on recaptured slaves was severe, the emphasis being on mutilation rather than death, which latter punishment would have deprived the owner of part of his property.

The criminal prosecution of slaves took place in the same courts as were used to try freemen, and generally both classes were liable to the same range of punishments. Some offences such as bigamy and adultery could in fact only be committed by freemen, because marriage amongst slaves was not legally recognised. Criminal process and punishment was harsh for slaves and freemen alike, and it would seem that as a general rule law enforcement was far more severe amongst the Dutch colonists than amongst the indigenous inhabitants of southern

Africa. It would be tempting to regard the tortures inflicted at the Cape as a direct outgrowth of the colonial slave situation, but in fact the practices which now seem so cruel and so inconsistent with the jurisprudence of enlightened seventeenth century Dutch jurists such as Hugo de Groote (Grotius), were part and parcel of the ordinary administration of justice in Holland, just as they were judicially approved in most of western Europe until the French Revolution and the Napoleonic Wars. The effect of slavery was not to invent or to legitimise torture, but to intensify its severity and to delay any humanising reforms. It could even be argued that although the treatment of slaves as chattels facilitated the use of violence against them, it also diminished the use of torture, since torture was the prerogative of the court, and slaves were usually punished directly by their masters without trial or reference to the court. What the rack was to the Fiscal, the whip was to the farm-owner, and like the master of a ship, the farm-owner relied heavily on strokes as a deterrent to mutinous conduct. The slaves had no property out of which to pay fines, and a flogging was both speedy and inexpensive and calculated to cause pain without incapacitating the slaves for work.

The purpose of torture was not primarily to get information or to punish the prisoner, but to get him to confess his crime out of his own mouth. Failure to make a confession even under the most rigorous torture was not usually regarded as a proof of innocence but as a sign of extreme criminality and lack of repentance. The stage at which the torture was applied was when an accused denied guilt after being confronted with substantial incriminating evidence at a preliminary court hearing. (If he pleaded guilty then he would be sentenced at a full hearing of the court without having to undergo torture.) The examining judge would order him to be subjected to 'more stringent examination' and he would then be taken to the torture room (Van Leeuwen-trans. Kotze, vol. 2, p. 588).

As late as 1798, the year in which torture was abolished in Holland, a leading Dutch jurist, van der Linden, wrote that though he disapproved of torture in the wide sense, a little bit of flogging properly used could be most beneficial. If the accused contumaciously denied guilt at the preliminary hearing then he should be proceeded with in a slow and calm manner. First he should be shown the apparatus for flogging. Then if he still remained obdurate, he should be undressed and taken to the flogging post, all the while being exhorted to admit guilt. Then he should be given lashes, but not so severely as to constitute

punishment. "It is not the force of the blows that will soften the heart of the captured thief or housebreaker; it is the apparatus and the accompanying exhortations, which by means of the stings of conscience will cause him as it were to lose countenance, to forget his stubborn resolve to persist in denial, and in such a moment to make confession" (Van der Linden, II, p. 235).

At the Cape the flogging post was one of the milder instruments used by the prosecution to induce an accused person to make a confession. From its earliest days the court made use of the rack and the thumbscrew, and as the settlement progressed and the administration of justice became more specialised, these mediaeval relics were supplemented by instruments which could instil terror and inflict pain in a more refined and modern manner. Thus the Criminal Law Rolls of 1732 reveal that elaborate machinery for torture by suspension had been created. After being escorted to the torture room the accused would be hoisted by a rope tied to his hands and suspended by a pulley from the ceiling. Weights would be attached to his toes-the weights varying according to the degree of torture ordered by the judge-with full torture consisting of 50 lb. weights attached to each big toe.

Slaves were by no means the only persons to be subjected to pre-trial torture. White men and women were amongst the victims, and the records tell of a white woman who was castigated with rods for refusing to confess that she had ordered the killing of a cow belonging to a Khoi herder. They also refer to the case of a white man who, after having had weights hung from his toes, only 'confessed a little' to having killed a black man.

Where a recognised distinction between slaves and freemen existed was in the degree of severity of punishment imposed on each after trial and conviction. Thus defamatory and warning punishments were imposed on white colonists, whilst the most extreme forms of death sentence were reserved for slaves. Defamatory punishments presupposed that the accused had a reputation in the community, and were imposed on colonists guilty of infringing public morals. Thus a bigamist was made to bear a placard reading: The Taker and Possessor of Two Wives. Punishment by imitation consisted of exposing the miscreant on the gallows with a noose around his neck or getting him to kneel blindfolded while shots were fired or a sword was waved over his head. In the early years capital punishment was frequently inflicted by drowning, which was used to kill sailors and slaves alike, but later more prolonged and painful methods of execution

were adopted, with condemned slaves being the main victims. Similarly mutilation was a punishment reserved mainly for slaves.

Right until the period of British rule sentences of death could be carried out in ways ranging from hanging to strangling (for women), breaking on the wheel or cross with or without a coup de grâce , decapitation, quartering and chopping off the limbs, and even burning. This last mode of execution was imposed, though only rarely, for arson, and as late as 1804 a person was sentenced to die by fire.

Freemen sentenced to death were usually hanged, shot or strangled, whereas slaves were subjected to the more lingering forms of death, such as being stretched on the rack or broken by iron clubs while crucified. The severest degrees of death were reserved for runaway slaves who committed murder whilst in night. Thus a slave convicted of "two frightful murders . . . which make the hair of a rational being stand on end, and his entrails to shudder and freeze" was ordered to be punished ". . .in a land where justice and righteousness (were) maintained as the pillars of the public peace" by the harshest death sentence possible: being tied to the wheel, having his flesh pinched and being broken alive by eight blows of the club without the mercy stroke. Another slave was bound naked to a cross, had ten pieces of flesh nipped from him by red hot pincers at lengthy intervals, his right hand hacked and thrown into his face, his body quartered and dragged in portions through the town, and his head secured to a pole as prey to the birds. That such excruciating forms of execution were common throughout the Dutch trading empire is evidenced by the sentence imposed on the male partner of a woman sent as a convict from Batavia to the Cape, namely that he be "Bound on a cross, when his right hand shall be cut off, his body pinched in six places with red-hot irons, his arms and legs broken to pieces, and after that to be impaled alive before the Town House on the Square, his dead body afterwards to be thrown on a wheel outside the town at the usual place, and to be left as prey to the birds of the air. Prisoner also to pay all costs."

Executions were carried out in public, and far from diminishing in severity and scale as the settlement progressed, were effected by more executioners using better equipment and attended by greater ceremony. Improvement of techniques unaccompanied by any softening of objectives resulted in cruel executions occupying a larger rather than a smaller place in Cape society, and even those visitors most sympathetic to the way of life of the colonists recorded in their journals the horror they felt at witnessing the painful deaths of the condemned men. One

of the most extraordinary features remarked upon by these visitors was the stoicism with which many of the victims bore their tortures. On one occasion the keeper of the Company Records was driven to express astonishment at the spirit of a slave who, as the paramour of a white woman and the murderer other husband, was impaled on an iron prong until death: four hours after the prong had been thrust through his body he was given some arrack to drink, but advised not to have too much otherwise he would become drunk, to which he retorted that it did not matter, as he sat fast enough and there was no danger of his falling. According to the Records he lingered on for two days, joking with spectators and saying scoffingly that he would never put his trust in women again.

The public executioner, like the hangman of today, was paid on a piecework basis. A statute of the mid-seventeenth century fixed his tariff of fees as follows (converted into 1970 sterling prices):

For every person he might kill-6 shillings.

For suicides whom he hanged on the gallows-2 shillings.

For punishment where death did not follow, such as flogging, branding with a red-hot iron, cutting off ears, boring a hole through the tongue, cutting off a hand, pulling out the eyes-2 shillings.

Torturing-1 shilling and 4 pence.

The one area of punishment which at first glance seemed to have softened over the years was mutilation, which was inflicted on runaway slaves. Early court records refer to the cutting out of tongues, and the cutting off of ears and other forms of defacement, whereas later cases more frequently involved branding on the back. The main reason for the change, however, appears to have been that the sight of deformed persons was too much for the gentler-born inhabitants, and it was to protect them rather than the slaves that the back was mutilated rather than the head.

It has been pointed out that slavery is paradoxically a great cultural leveller inasmuch as it rapidly shatters the culture of origin of the slaves and encourages miscegenation. Slaves arriving at the Cape from all over Asia and Africa were given European names by their new masters, who often called them after the months of the year or Biblical or classical personalities: thus Jupiter cleaned the shoes, Hercules rubbed down the horses and Juno lit the fire. In a settlement where there was a general shortage of women, Dutch colonists tended to cohabit with slave women, while slave men tended to have sexual relationships with Khoi

women; an early Governor noted that three-quarters of the children born to women slaves had Dutch fathers. For their part, the slaves and Khoi women who looked after the colonists' children had a great influence on the language of their masters, which they helped to simplify so that eventually it was to prove more popular and enduring than High Dutch. Yet the narrowing of the cultural gap between slaves and masters did not lead to any amelioration of the conditions of the slaves, nor did the increase in prosperity and stability of the settlement result in any softening of their masters' attitudes towards them. On the contrary, as time passed the colonists' attitudes towards the slaves became noticeably harder, emancipation was made more difficult, and a series of harsh statutes was passed to control the conduct of slaves. It was not the status of the slaves that improved with the growing sophistication of the settlement but the machinery for their control and punishment. Thus statutes were passed a hundred years after the settlement was established forbidding slaves from being on the sidewalk except in attendance on their masters, prohibiting them from carrying lighted pipes in the street (a security measure against arson), and penalising them for jostling colonists in the street. Provision was made for them to be flogged if they entered the church or even the porch or made any noise outside during divine service, or if they entered a burial ground during the funeral or went into the public gardens unaccompanied by their masters, unless they did so in charge of their masters' children. It was also decreed that any slave whether man or woman, whether with weapons or without, who raised his hand against his master should be punished by death without mercy (1754).

Finally even the adoption of Christianity no longer served to enable a slave to become his own master, for the Church Council in Cape Town declared that neither the laws temporal nor the laws spiritual prohibited the retention of baptised persons in slavery (1792). From this time onwards the great social and legal divide was no longer between Christian and non-Christian, but between white master and black slave or servant. A significant indication of the extent to which colour had superseded religion as the determinant of status was the instruction given in 1780 that Company black servants were no longer to be sent to arrest white offenders.

A similar process of hardening attitudes took place in the relations between colonists and Khoi Khoi. A well-known South African jurist has recently declared that the Cape was res nullius (belonging to nobody) which became Dutch territory by occupation; implicit in this

view is the assumption that the indigenous people belonged to the land, the land did not belong to them. This, however, was not the view of the indigenes themselves, nor of the first European settlers. The hunting bands (the San or so-called Bushmen) occupied territories over which they recognised prior rights amongst themselves, while the herders (Khoi Khoi-the Men of Men-or so-called Hottentots) had a system of government that included arbitration procedures and law enforcement agencies; both groups resisted encroachment by the Dutch on their land. The first Dutch Commander clearly recognised the prior title of Khoi Khoi to occupation and pasturage of neighbouring territory, and the famous hedge which he erected and which has been claimed as the first manifestation of apartheid in South Africa was designed not only to keep the Khoi Khoi out but to keep his own men in. In the first years of the settlement it was the Khoi Khoi who had contempt for the Dutch, who watched enviously as Khoi shepherds drove vast herds of cattle and sheep past the Fort. A leading Dutch jurist had referred to a rule laid down in the middle of the seventeenth century that "the Aborigines shall be undisturbed in their liberty and never enslaved; they shall be governed politically and civilly as ourselves, and enjoy the same measure of justice" (Voet 1:5:3), and Company officials at the Cape initially tried to follow a policy of peaceful trading and non-interference with their neighbours. Gradually, however, the Dutch and the Khoi Khoi came into armed conflict; the Khoi Khoi suffered some heavy blows, and certain sections became increasingly dependent on the settlement economy for their livelihood. Military defeat was followed by economic dependence and social subordination, and the one-time independent pastoralists were absorbed into the expanding settlement as farm labourers, domestic servants and herders. Technically they were not slaves and they were not bought and sold at public auctions, but they were completely dependent on the farmers, they had no redress for grievances and they were treated as runaways if they left service. In the opinion of country farmers they were a docile and cheap form of labour at the disposal of their masters whose personal authority over them was final. In the first years of contact, convicted Khoi Khoi were handed over to their own people for execution, but later they were subjected to the same punishments as convicted colonists and slaves. Because most of them lived in the frontier regions they tended to have less contact with the settlement courts than did the slaves, but they were subjected to a considerable amount of domestic correction by their masters. 'Terribly violent means' were

used to prevent them from lodging complaints against their masters, and when a few managed to get a hearing from officials, redress seldom followed.

Race attitudes of the dominant section of the community, whether on the frontier or in Cape Town, have remained essentially unchanged since the end of the eighteenth century. What has changed is their rationalisation. The emphasis then was on the Christian and his religion, now it is on the white man and his 'civilisation' (Macrone).

Slavery was eventually abolished at the Cape not as a result of insurrection, civil war or pressure from an indigenous abolitionist movement, but by external compulsion in the form of a British Act of Parliament (1834). Yet the legal emancipation of slaves did not lead to their social emancipation. The buying and selling of servants and absolute restraints upon their mobility were outlawed, but many of the features of the master-slave situation were reproduced in labour legislation and pass laws, and sustained by social practice. Farmers continued to pay their workers on a subsistence level, and the close interdependence of farmers and farm workers coupled with strong paternalism and rigid social distance have endured to this day. Other social products of slavery at the Cape which are still much in evidence are the Afrikaans language, the deeply entrenched divisions between brown and white Afrikaners, the racism of the Dutch Reformed Church in South Africa, and the position of dominance exercised by white persons over persons brown and black. Even scholarship is frequently imbued with strong racial assumptions. The author of the one extended work on slavery in the Cape writes that if "the Hottentots had not been so lazy the Dutch would not have had to import slaves . . . A regular trade in slaves was kept up almost from the beginning of European civilisation . . . but many of the slaves had so little taste for work that they had scarcely arrived at the Cape when they began to desert" (De Kock). A leading criminologist, on the other hand, writes of a period when slaves and Khoi women were virtually defenceless against the sexual attacks of their masters, that it is nothing short of astonishing how few cases the records reveal of rape committed by slave and Khoi men against their white mistresses (Venter).

Postscript

When the British occupied the Cape in 1795 to prevent it from being seized by the French under Napoleon, they undertook not to withdraw any of the rights and privileges of the inhabitants. Thus the right to own

slaves was upheld for several decades and in fact the first years of the British occupation saw a very steep rise in the number of slaves held at the Cape. However, the privilege of torturing suspects and imposing different degrees of severity in capital punishment was something the new administration would not allow. After witnessing an execution which he found to be most harrowing, the British Commander wrote to the Cape Court of Justice that in England death itself was the supreme penalty and no degrees of severity were permitted in how the condemned man was to be killed. On receiving this letter the judges were most alarmed and forecast a great increase in capital offences. In their reply to the Commander they pointed out that there was nothing discriminatory in the use of the rack, which was applied to suspects, or, rather, to which suspects were applied, irrespective of race, colour, creed or status. They assured the esteemed Commander that even in Holland, where there were no slaves, the very same gradations of severity were recognised as those in force at the Cape, and, moreover, these gradations were equally applicable at the Cape to freemen and slaves. With regard to slaves who committed offences against colonists, especially against their masters, however, there was a distinction in punishments inflicted but this was not peculiar to the Cape . . . "on the contrary it is grounded upon analogy with the criminal law, according to which the distinctions of persons is one of the essential points by which the degree of punishment is measured in most civilised nations. . . ." Death by torture could be abolished without ill effects in the case of free people, they declared, but to abolish it generally would only encourage revolt among the slaves.

Apparently the public executioners were even more alarmed than the judges. According to the secretary to the British Commander, one of them "made an application for a pension in lieu of the emoluments he used to receive for the breaking of arms and legs". The other waited upon the President of the Court to know from him "whether it was the fashion amongst the English to break upon the wheel". A few days later, because, it was thought, of fear of redundancy, the hangman hanged himself.

Chapter Two—
Enter the British Legal Machine:
Law, Administration and Race Relations at the Cape 1806–1910

Introduction

When in 1814 pressure from British merchants forced court proceedings in the colonised portion of the Cape to be thrown open for the first time to the public, the existing court-room in Cape Town was found to be too small to accommodate spectators. The site chosen for a new and larger building was the yard of the former Government Slave Lodge, which shortly after the second and final British occupation of the Cape in 1806 had been converted into a centre for administration (the slaves having been selected and removed by respectable people on payment of £30 per head). The new court was duly completed and at the opening ceremony (1815) Chief Justice Truter declared that "it had been erected with great expense and peculiar ingenuity, purposely to give the administration of justice in this Colony, all the external lustre, which can tend to place its dignity and freedom in the most exalted point of view . . ."

The hoped-for lustre did not manifest itself immediately. The Cape judges were at various times in the nineteenth century accused of being impetuous, overbearing, theatrical, licentious, over-lenient, over-strict, lazy, intriguing, stupid, prejudiced, incompetent and deaf, and two of them (including the first Chief Justice of the Supreme Court) were nearly impeached for misconduct. Part of the population adulated them for being representatives of British justice, another part detested them for the same reason, while the majority of the population were simply not asked for their opinion.

Yet for all the criticism and controversy, respect for the judiciary grew amongst all sections of the community, especially during the long period when de Villiers was Chief Justice (1876–1910). Just as the elegant Supreme Court building in Cape Town gave lustre to the judges, so did the judges impart a measure of brilliance to the Cape administration. By the end of the century the Royal Colonial Institute in London was told that the Cape Colony had been particularly fortunate in its judges who in point of integrity, learning and impartiality could bear

comparison with any judicial body in the Empire. The Cape Law Journal ("the oldest periodical of its type in English in the world") agreed, declaring that the Cape judges were men of unquestioned probity and fearless independence and that the Cape system of criminal law was as nearly perfect as could be desired and worthy of adoption by the British Government itself. Fifty years later the distinguished South African historian de Kiewiet singled out the judges for the only undiluted accolade in a substantial book ("the specially brilliant role played by the judiciary in South African history").

This chapter examines the growth of the legal system at the Cape from its 'sorry state' at the beginning of the century to its allegedly 'near perfect' condition at the end, and discusses its role in the maintenance of what were regarded as proper relations between masters and servants and white and black. This was a time of expansion and conquest, when the small refreshment station at the western Cape grew to be the headquarters of a huge colony that spanned the whole of southern Africa. It was also a period when the discovery of diamonds and the re-discovery of gold to the north opened the way for rapid industrial and commercial development, and led to the final destruction of tribal and Boer independence and the establishment of British hegemony throughout the sub-continent.

In this setting the concept of British justice assumed particularly great importance. On the one hand it was seen as an instrument for extending Imperial control, on the other it was proclaimed as the guardian of the property and liberty of all British subjects, whether white, brown or black, English-speaking or Afrikaans. The courts lay at the heart of government, since they were used not only to extend the area of effective administration in a territorial sense (via magistracies and the Circuit Court), but also to bind diverse peoples to a common political authority. A court-centred administration modelled on British lines and adapted to the Cape social situation became the basic instrument of rule. The alternative of government by a military bureaucracy was considered from time to time, but apart from the special unpopularity it might have incurred amongst people grown accustomed to access to the courts, it would also have involved greater expense for the British taxpayer. Thus once conquest was complete, soldiers and punitive expeditions financed by the British Exchequer gave way to magistrates and police paid for by the Colonial Government. Eventually the British-type legal administrative machine encompassed the whole of South Africa, where it operated subject to the directives of a

sovereign white-dominated Parliament and to the scrutiny of an influential white-dominated press.

Today it is Afrikaners rather than Englishmen who are largely in charge of this apparatus of control, but the system they employ and the specific techniques they use remain substantially unaltered. Judges, magistrates, lawyers, policemen and prison officers follow methods of organisation and styles of work derived almost entirely from their predecessors in the Cape Colony. The Dutch settlement and the Boer Republics might have provided much of current racial ideology in South Africa, and Natal the policy of separate development, but it was the Cape that supplied the present-day machinery of rule.

Transition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Liberty, Equality, Servility

The Charters of Justice and accompanying legislation made no reference to the colour or status of litigants or witnesses and to that extent may be regarded as having entrenched the technical equality of all before the lawcourts. The criminal courts tried white, black and brown prisoners, and the civil courts heard litigation involving members of all racial groups. Witnesses of all colours and every station could give evidence, and theoretically there was no weighting in favour of or against any class or group of witnesses. In the field of substantive law, too, steps were taken to secure a greater measure of formal or civic equality—in fact this was the only period in South African history when legislation was used to revoke rather than entrench race differentiation. Ordinance 50 of 1828 declared that "Hottentots and other free persons of colour are . . . entitled to all the rights of law to which any other of His Majesty's subjects . . . are entitled". It also expressly abolished the Vagrancy laws of 1809 and 1819 which had prohibited all non-slave coloured persons from moving from one place to another without a written permit from a local official. Soon afterwards (1834) the owning of slaves was abolished throughout the British Empire, and the process of establishing formal equality was complete.

Yet these measures made no provision for the acquisition by Khoi Khoi or ex-slaves of the land, education and political rights necessary for them to achieve any effective social and economic equality. Slave labour was converted into cheap labour; the great majority of coloured people at the Cape, whether ex-slave, Khoi Khoi, or descendants of mixed unions, had no means of subsistence other than to work for white employers on whatever terms were offered to them. Thus the actual situation of baasskap (domination) remained very much the same before and after the legislative reforms. The arming of Khoi Khoi

troopers and the establishment of the Kat River Settlement might have counted for more than statutory declarations abolishing servitude, but this line of development was halted after the Kat River Rebellion of 1851.

When representative government arrived three years later, the franchise was deliberately restricted on economic and not on racial lines, but no black or brown person was ever elected to the Cape Parliament. Masters and Servants laws (1841, 1856 and 1873) were made applicable to all masters and all servants, irrespective of race. They required that contracts of service be annually registered and made insubordination or desertion of service criminal offences, but since most masters were white and most brown people were servants, the effect of this apparently race-free law was to consolidate rather than weaken race domination.

The net effect, then, of these legislative measures was not to constitute a revolution, but to remove certain barriers to emancipation; not to eradicate racial domination, but to sanction its class rather than its colour or cultural aspect; and not to destroy privilege, but to regularise its operation and restrain its arbitrary exercise. With regard to the use of force and the infliction of punishment, the area of permissible self-help open to farmers and other employers was reduced and the effective jurisdiction of the State increased. At the same time the State with its extensive resources could now be called upon to exercise systematically, publicly and on a large scale the sort of control over labour which the farmers had formerly exercised haphazardly, in private and on an individual basis.

For many of the white frontiersmen the bargain appeared inequitable, and they voted against it with their wagons. To them the right to punish servants was a matter of discipline and not of law, and warranted interference just as little as did the right to punish children (or, for those who had contact with schools, the right to chastise pupils). A farmer thought he knew far better than any magistrate how to handle his workers. A thrashing swiftly delivered seemed far more appropriate than punishment after a time-consuming trial at a distant courthouse, especially since fines could not be met and imprisonment deprived the farmer of his labour. At a time when the magistracy had not been firmly established and police and penal establishments were almost non-existent outside of Cape Town (with killing, whipping and banishment being the main forms of punishment open to the court) the advantages of a court-centred system of controlling labour

and maintaining 'proper relations' between white and brown were not as obvious as they were to become later. To aggravate the feeling of injury, these apparently foreign ideas about the regulation of master/ servant relationships were conveyed in a foreign tongue and, with the arrival of the new judges, by foreign men.

Robes and Oxwagons

These early British judges had a complicated task to perform, one not made easier by the wrangles, intrigue and scandal in which they were constantly involved. Today South African legal scholars tend to view their contribution purely in terms of the dispute as to whether English law has polluted or enriched the stream of Roman-Dutch law, and looked at in this narrow way all that need be said is that the Scottish Menzies was a 'staunch upholder' of Roman-Dutch principles, whereas the other judges were more eclectic and inclined to fall back on English legal precepts. Their real contribution, however, lay not so much in what they did to the principles of the law, as in what they did for the activities of the court. They invested judicial office, if not always with a dignity, then with a sense of importance, and they drastically renovated procedures and methods of administration, bringing them into line with British practice.

Their job was not merely to interpret the law but to create it: thus they introduced new Rules of Court and drafted an ordinance which made English rules of evidence applicable to the Cape Courts; they also drafted ordinances dealing with the handling of insolvent and deceased estates, the setting up of a Land Register, the qualifications for jurors, and the establishment of the office of Master of the Supreme Court with responsibility for looking after the estates of minors and lunatics. As general legal advisers to the Governor, they concerned themselves with all proposed legislation, and not only with measures directly related to the administration of justice. It was Judge Burton, for example, who drafted the famous Ordinance 50 of 1828, for which activity the white colonists forgave him only when he later awarded damages against the leading missionary and philanthropist, John Philip, on the grounds that Philip had wrongly accused a magistrate of oppressive behaviour.

The opinions of the judges were sought and given weight to by members of the Governor's Advisory Council and later by members of the Legislature. The first Chief Justice was for a time in fact a member of the council of advice, but he proved to be so disputatious that he

was diplomatically relieved of this office and told he was needed more urgently on Circuit. When, however, representative government was inaugurated in 1854 he became ex officio President of the Legislative Council (like the Lord Chancellor in Britain who presided over the House of Lords), a position which his successors in office continued to hold until Union in 1910.

The judges "in those days were more jealous than they have always been since of the executive's use of emergency powers", and exercised considerable influence over the drawing up of treaties with African leaders (where this was done) and defining the modes of government in the frontier territories. They saw themselves not as mere executants of the law but as watchdogs of constitutionality and representatives of the Crown. The military might conquer, but the judges were needed for good government. On one occasion Judge Menzies while on circuit was so anxious to keep Emigrant (Trekker) families under British jurisdiction, that he actually purported to annex in the name of the Crown large portions of territory north of the Colonial border.

The Colony was poor but litigious and the judges worked hard for their good salaries. Travel on Circuit was particularly arduous, since by 1850 the court's jurisdiction extended to an area of 130, 000 square miles, and distant towns were 800 to 900 miles apart. Thus twice a year every year for three months at a time the judges, who until 1860 travelled in oxwagons over roads 'in a state of nature', covered more ground than did the Voortrekkers, and they had to be on time. The towns were filled with prisoners waiting to be tried and with dignitaries waiting to be entertained (Nagmaal—the Dutch Reformed Church's Communion Feast—was usually made to coincide with the Circuit). Each town accordingly represented a non-stop whirl of judicial and gastronomic activity. The Circuit judge was regarded as second in importance only to the Governor, and his arrival "in this Colony (where but few distinguished occasions occur) an event of peculiar import". Thus the first judge to travel through the Transkei was greeted with triumphal arches, fireworks and addresses (though compulsory jury service dampened the enthusiasm). Escorted into town by a cavalcade of police, the judges generally drove in open carriages with two horses, while the local people stood in the street and removed their hats. Whether or not justice was seen to be done, the judges were certainly seen, and so effective were they as recruiting agents that nearly all their successors on the Bench in the late nineteenth and early twentieth centuries came from small country towns.

To those who criticised the expense of the Circuit, it was pointed out that the judge abroad was the best schoolmaster in the country, exercising a profound moral influence wherever he went. Even if the costs of a Circuit in fact exceeded the value of property stolen in the Circuit area, this was said to be to the credit of the judges, since just as "the Celestial Emperor pays his physicians when he is well and stops their fees when he is sick . . . so one . . . should not begrudge the expenses of the circuit court because the state of crime is what it is, but rather the reverse" (Porter). Nevertheless, savings were made in the costs of travel and entertainment, and by the end of the century judges were complaining of being forced to proceed in forma pauperis .

In order to ease the load of the Cape judges a separate Eastern Cape Division of the Supreme Court was created with its headquarters in Grahamstown. The successive annexations, however, of the Transkei, East Griqualand and Pondoland resulted in the judges being responsible for covering two giant Circuit areas instead of one. The introduction of landau carts drawn by teams of horses opened up a new era of speed but did little to overcome what was by now the greatest hazard of Circuit travel—swollen rivers. Complaining of the absence of bridges, the Cape Law Journal pointed out that "the judge who perhaps but yesterday was seated in Court bewigged and scarlet gown'd . . . may a day or so later be seen crouched in a small wooden box, suspended from a wire rope, being hauled by jerks across a rushing, flooded river". For counsel the indignities could be even worse. "On one occasion a smasher hat and an eyeglass constituted the only articles of apparel upon the form of the prosecuting Barrister, as he waded, holding his clothes aloft, through a river which was more than ordinarily full." It was not reasonable, concluded the Journal , that every six months a Judge and Circuit Bar should be expected to face odds in arriving on time.

To get through all their work on Circuit the judges frequently held court at night. One energetic judge managed to handle cases in eleven Circuit towns in only a month by means of sitting from 6 a.m. to near midnight and then leaving for the next town at daybreak. As late as 1891 the Law Journal referred to the practice of lighting the court with candlesticks placed on the Bench, the jury-box and tables, with the result that "the effect at a recent sitting for the conclusion of a notorious murder case was quite ghastly".

In Cape Town itself the activity of the judges was far less heroic. For some time there was so little work for them to do that three judges

would sit together to hear the most trifling matters (1878). This was so despite the fact that in 1856 the procedure of automatic review—a unique South African contribution to criminal procedure—had been introduced, whereby all magistrates' court cases in which the sentences imposed exceeded one month's imprisonment, or £5 fine, or twelve lashes, were automatically sent on review to the Supreme Court.

By the 185os judges were no longer being appointed solely from Britain. The elevation to the Bench of such persons as Ebden, Cloete and Watermeyer, perhaps lowered the level of judicial rhetoric but raised the standard of Roman-Dutch law scholarship (assisted by the publication of law reports dating back to 1828). Until 1868 the Colonial Office kept a balance between British-born and Colonial-born judges, with the Chief Justice always being an Englishman or Scotsman, but from 1868 onwards all Cape judges were appointed from members of the Cape Bar, and after the coming of responsible government in 1872, the Cape Government itself made all appointments.

The quality of judges during the mid-century varied considerably. Thus Chief Justice Hodges (1858–1868), who was said to have no prejudices except against the letter 'H', was strong on improving jail conditions but weak on points of law, whereas his predecessor and successor, Bell (1855–1858, 1868–1874), was strong on points of law but weak on tact. Newspapers were unafraid to attack tyrannical or unjust judges, and used the most scathing language to do so. Judge Dwyer (1868–1886) was openly referred to as a 'hedgehog' and a 'ginger-pop' judge, and one paper ascribed his wearing of gown and wig to "the custom of covering those parts of the body which are in any way deficient".

It was only when Paarl-born J. H. de Villiers was elevated to the Bench as Chief Justice in 1874 that the court received a leader who combined dignity, tact and legal acumen with a concern for improving the standards of justice. Merely 30 years old when he took office, it was expected that the passed-over judges would refuse to administer the oath to him, so "he rose from his seat and administered the oath to himself and said 'Call the first case, Mr Registrar'". For the next thirty-six years he presided with forbidding gravity over the court, achieving for it an international regard during a period when rapid economic and political development brought South Africa to the attention of the world. As a jurist his greatest achievement lay in the way he moulded Roman-Dutch law to meet the needs of a modern, developing economy, which earned for him from his most eminent successor, Sir

James Rose-Innes, the title of 'master-builder of South African law'. His demeanour was as distinguished as his scholarship, and so great was his eventual fame that to appeal from a judgement of his to the Privy Council was regarded almost as an impertinence. What he brought to the Bench was a sense of authority. He was learned, grave, courteous and prepared to stand up to the Government; being unconcerned about unpopularity (or perhaps taking his popularity for granted) he became popular. A friend and protégé of such liberal statesmen as William Porter and Saul Solomon ('champion of the natives'), he took his stand on "the fundamental principle that no man's fundamental rights should depend on the colour of his skin" (Innes). More than most of his contemporaries in the upper reaches of Cape society he saw what a valuable role the Supreme Court could play in integrating conquerors and conquered into a common society sharing common values and standards of conduct. Unlike most of his colleagues who belonged to Volunteer Regiments, he was not a military man, but a strong believer in civil authority. He publicly condemned moves to make flogging compulsory for stock-thieves, and on at least two occasions severely embarrassed the Executive by ordering the release on habeas corpus (and its Roman-Dutch equivalent) of brown and black political leaders (Willem Kok and Pondo chief Sigcau). To arguments that the detention of such 'troublemakers' was necessary for the security of the Colony, he replied that "actual justice done with an equal hand does more to keep the peace than anything else". His fame as a judge spread to Britain, and he became the first Colonial judge to be appointed member of the Judicial Committee of the Privy Council.

Contrary to the current notion that South African judges have traditionally given politics as wide a berth as possible, de Villiers never left politics alone. The only time the Law Journal ventured to criticise him was when he offered to form a Government in the Cape on a 'broad South Africa' policy: the Journal observed that just as a mathematical line was length without breadth, so his platform was breadth without length, and advised him to stay on the Bench. When the National Convention met after the Anglo-Boer War to consider union of the four colonies, he was the natural choice for President. For twenty years he had worked actively to create an Appeal Court for all states in southern Africa, seeing in it the forerunner of political union; and when eventually such Union and such Court were simultaneously established in 1910, he was selected as first Chief Justice of South Africa.

Barristers and Gentlemen

By accident or design the first case on the roll of the new Supreme Court in 1828 involved the appointment of an advocate to look after the interests of a child of a slave who was claiming that he had been manumitted. At that stage the Bar consisted of only nine advocates, all of whom had been either judges or advocates in the previous court, and additions thereafter came very slowly. When de Villiers commenced practice the number had dropped to four (1866), and this included the Attorney-General. There were accordingly at this stage as many judges as full-time barristers.

By the time James Rose-Innes joined the Bar (1878) the number in practice had risen to twelve, and by 1901 the Law Journal was able to report that "Themis smiles in the forum on more than thirty ardent admirers".

Of the first thirty advocates admitted after 1828 approximately half had English and half Afrikaans names. All except two had qualified by virtue of having been called to the Bar either in London, Edinburgh or Dublin; although examination courses were set in the Cape from 1854 onwards, it was customary until well into the twentieth century for the great majority of aspiring advocates to proceed to Britain (and often to Holland) for their legal education, which usually included taking degrees at Cambridge or Oxford. Out of the dozens of wellknown judges who sat on the Bench during this period only three (Buchanan, Innes and Curlewis) had received all their legal training in South Africa.

Most of the early advocates with British names appear to have been servants of the Crown or else immigrants, who like the early judges came to the Cape not so much to advance their careers, as for personal reasons, such as ill-health (Thomas Upington, Robert King) and shipwreck (Alfred Cole). The Irish Bar contributed a particularly large number of advocates and judges (Porter, Griffiths and Upington—all Attorney—Generals—Fitzpatrick, Dwyer and Connor—all judges—and King QC), prompting the Law Journal to carry an article by an American lawyer who protested that Ireland was the only country in the world where English was spoken and the Irish did not rule.

The Cape Bar accordingly was small, elitist and strongly influenced by British styles and traditions. The division between barrister and solicitors was maintained, as was the practice of appointing judges purely from the ranks of practising barristers. In the latter part of the

century the title Queen's Counsel was awarded to certain leading advocates, and although all advocates and many judges discarded the wearing of wigs, presumably because of the heat, they continued to wear British-style gowns and bibs. The British honours system further bound lawyers and judges at the Cape to Britain, since they were prominent amongst the recipients of royal knighthoods. After the letters patent of the first Queen's Counsel sank en route to the Cape, appointments were made locally by the Governor without an oath of loyalty being taken. Knighthoods, however, were awarded with great ceremony by members of the Royal Family on occasional visits to the Cape, and were much applauded by the Law Journal , which urged that the supposedly inexhaustible Fountain of Honour should not dwindle in the process of distribution over Territories south of the Equator. A limited right of appeal to the Privy Council in London also cemented ties between British and Cape lawyers, and enabled the Law Journal to point out with pride that more than one quarter of humanity had such an appeal as a birthright (in fact only about two dozen persons a year actually availed themselves of this birthright).

The advocate's oath of admission involved not only a declaration of fealty to Victoria but a solemn undertaking that". . . I do from my heart abhor, detest and abjure as impious and heretical that damnable doctrine and position that Princes excommunicated. . . . by the Pope . . . may be deposed or murdered by their subjects . . ." Catholics not planning to kill Victoria were, however, admitted, as was at least one Unitarian (Porter) and one Jew (Jacobs). Most of the advocates were members of the Anglican or Dutch Reformed Churches, with a fair sprinkling of Nonconformists and Presbyterians. Many of the leading South African lawyers—both English and Afrikaans—were Freemasons. There were not many schools at the Cape, but nearly all the Colonialborn advocates who subsequently achieved fame seem to have attended only two, the South African College School in Cape Town and, more remarkably, a Reverend Templeton's school at the village of Bedford in the eastern Cape. This latter had within its walls at one time a future Prime Minister (Schreiner), two future Chief Justices (Innes and Solomon) and a number of future eminent lawyers and civil servants.

Friendships at the Bar tended to be strong and lasting, partly because the number of advocates was so small and partly because the hazards of the Circuit were so great. The association which produced the most enduring results was the one between the ageing Attorney-General Porter and the youthful advocate de Villiers. Porter was the most

distinguished lawyer and gifted orator at the Cape during the middle portion of the nineteenth century; a Unitarian of strongly liberal views, he used all the authority of his office to encourage a low and non-racial qualification for the franchise for the first representative government (he drafted the Constitution). He was a vigorous opponent of the death penalty, and his failure to persuade the Cape Parliament to abolish it was one of the factors which persuaded him to refuse the Chief Justiceship in favour of de Villiers. He turned down all the many honours offered to him, refusing even to allow his portrait to be painted, but possessed such authority that he could silence the most querulous of judges (doing so once with the famous statement that a witness had in error "addressed me, my Lord, as 'My Lord,' my Lord, instead of my Lord, my Lord, as 'My Lord', my Lord"). Porter took de Villiers under his wing, sponsored him for Parliament and encouraged his candidature for the Chief Justiceship; he also transmitted to him a calm, eloquent style and a deep respect for justice through law. Porter and de Villiers may be regarded as the individuals who did the most to establish the traditions and ethics which South African barristers like to feel characterise their profession, while Innes and Schreiner were their most influential successors.

In those days admission to the Bar led almost invariably to a successful political and judicial career. Young barristers on circuit were quickly snapped up as Parliamentary candidates, and once elected could aim to become Attorney—General-a sort of Minister of Justice practising at the Bar—and then, possibly, even Prime Minister (Upington, Schreiner). Progress was often extremely rapid. Thus Thomas Upington the 'Afrikander from Cork', arrived in Cape Town in 1874 aged 30 and broken in health; within four years he was Attorney-General and within six Prime Minister. Of the twelve advocates at the Bar when Innes commenced practice in 1878, ten became judges, the eleventh a Secretary for Justice in the Transvaal, while the twelfth was the man who Gandhi described as that "famous barrister of South Africa, Mr Leonard".

By the end of the century the development of the diamond and gold fields in the north had drawn many Cape Town and Grahamstown lawyers to Kimberley, Pretoria and Johannesburg, where the volume of work was greater and the scale of fees higher. They took with them the styles and traditions of the Cape, and practised before judges many of whom had themselves come from the Cape. Thus in 1903 a writer in the Law Journal claimed that the "Cape Colony, like Africa of old,

may well be called the nutricula causidicorum —the nurse of lawyers—and every South African colony, except Natal, owes the majority of its Bench, Bar and Side-Bar to the parent colony".

Attorneys and Law Agents

For a few years after 1806 attorneys were admitted to practice by the favour of the Governor without having to pass examinations or serve indentureships, and the complaint was made that any bankrupt shopkeeper or reduced officer could set up as an attorney. The Charters of Justice and accompanying Rules of Court entrenched the existing division between advocates and attorneys and made it correspond to the English division between barristers and solicitors. They also provided that prospective attorneys should serve five years apprenticeship as articled clerks as a prerequisite for practice, but that persons qualified for practice as solicitors in England, Ireland and Scotland were automatically entitled to practise at the Cape.

Originally there were even fewer attorneys than advocates at the Cape, with only four being admitted at the opening of the new Supreme Court in 1828. For many years they all had their offices in Cape Town, and visited the outlying centres only when the circuit court went round. Nearly all court work was done by law agents, who had no legal qualification but were entitled on payment of a fee to appear in the magistrates court. Examinations for attorneys were introduced only in the last quarter of the century, but they were gradually made more stringent, while a heavy burden of fees and premiums was used further to restrict their numbers. In the 1880s law societies with more than fifty members each were established in the western and eastern sections of the Colony, and gradually the law agents were squeezed out of practice. At the turn of the century almost every town, village and hamlet had as many and often more attorneys than it could support: in Oudtshoorn alone during the ostrich-feather boom there were more than twenty practitioners, and complaints were loud and frequent about the overcrowding of the profession. Unlike the local advocates, the Cape attorneys were for the most part 'home-grown and home-trained', and consequently the Cape Side-Bar was far less affected by English methods and traditions than was the Bar.

By and large attorneys in the Cape never achieved the eminence of their colleagues at the Bar. The only distinguished jurist to emerge from their ranks was C. H. van Zyl, father of a future Governor-General, who collected the first large law library at the Cape, wrote

important textbooks on procedure and practice as well as many articles for the Law Journal , and pioneered legal education at the Cape. The Cape Law Journal was launched by a young and enterprising attorney (W. H. S. Bell) in 1884, and a few Cape attorneys went on to achieve prominent positions in political life. As a profession, attorneys handled a wide variety of legal matters for clients and did much work preparing for trials, but their main contribution to public life in the Cape lay in the economic rather than the purely legal field, where they negotiated sales, drafted agreements and acted as auctioneers and estate agents.

Magistrates, Justices of the Peace and the Law Department

The administration of justice at the local level was transformed in 1827 when resident magistrates were appointed to replace the local officials (landdrosts and heemraden ) left over from the Dutch era. The magistrates were full-time employees of the Colonial Government who combined the administrative tasks of receiving taxes, issuing licences, collecting information, publishing government notices and solemnising marriages with the judicial tasks of hearing all but the more serious criminal and civil cases. Though their jurisdiction was limited in civil cases to relatively small awards and in criminal cases to the imposition of short terms of imprisonment, heavy lashes and low fines, it was in their courts that most trials took place and it was they who represented the administration of justice to the man in the veld.

For many years the absence of sufficient magistrates was regarded as "one of the chiefest wants" of the Colony. The training of those who were appointed was minimal, and they often lacked the finesse required to handle the frequently conflicting demands of the review judges, their departmental heads and the local public (usually meaning the local white public). Although some magistrates were highly qualified and competent, "many such appointments also went to retired sea-captains and other gentlemen whose ignorance of law and procedure was abysmal". At a later stage senior officers of the Cape Mounted Rifles were often made magistrates, presumably on the premise that their fierce demeanour would compensate for their lack of legal knowledge.

Pressure from local white employers was strongest in cases of desertion or refusal to work, and theft of stock or produce. In such cases magistrates were expected to ensure that the accused were punished as severely as they would have been by the employers themselves in the

days of self-help. Throughout the century the question of punishment of farm labourers continued to be fiercely argued, In 1892 there was a Cabinet crisis over whether a magistrate should be removed from the Bench after he had been criticised by the Prisons Commission for "extreme harshness to Native offenders and refractory Native servants". Strong support for the magistrate came from farmers throughout the Colony, and in 1894 the notorious 'Strop Bill' (Flogging Bill, or, as Olive Schreiner called it: Every man beat his own kaffir bill) was placed before Parliament, which if passed would have once more legalised the thrashing of servants. As members of the local white community, country magistrates were kept well aware of farmers' feelings. Even in the towns magistrates were subjected to pressure by white employers; in one case a lady of standing is said to have called out loudly to a magistrate trying an employee of hers for desertion: "Punish her Percy!"

In the early years when communications were very poor and the administration even poorer, a large number of justices of the peace were appointed to exercise judicial-cum-police functions in the country districts (1827). As the magistracy advanced so did the justices of the peace retire, until eventually they became little more than commissioners of oath. By 1894 they held court only in the most far-flung districts, trying a total of 1,400 cases (compared with nearly 50,000 criminal cases attended to in the magistrates' courts). The majority of cases which they heard related to the Masters and Servants Acts, with the balance being made up mainly of charges of assault, vagrancy, drunkenness and theft.

The country magistrate's duties were as multifarious as his procedures were informal. A policeman turned magistrate later wrote in his memoirs of the time when he was appointed to the Northern Border magistracy (1873) (Hook). His jurisdiction covered an area of 89,000 square miles, and he had power to impose thirty-six lashes with a cat; amongst his first tasks was that of chasing African and San 'squatters' off certain pieces of land. He carried his records in a wagon and held court anywhere. In one case a Boer charged with assaulting an African rode up to the wagon at breakfast-time with the witnesses, who had all come to eat. "The table cleared, the accused stood up for trial just where he'd sat, I sitting in my chair the same. A £ 5 note protruding from his pocket was the penalty imposed. Afterwards he shod my horse gratis . . ."

Although procedures in the larger centres were never as casual as

this, lawyers constantly complained of the magistrates' lack of legal knowledge (as well as of their tendency to act as judge and prosecutor at the same time). The judges were often extremely severe on the magistrates, on occasions not only upsetting their verdicts, but also ordering them personally to pay the costs of successful appeals. One of these orders for costs was in turn successfully taken on appeal to the Privy Council; a newspaper caustically suggested that the judges should now be ordered to pay the costs of the further appeal).

The procedure of automatic review mentioned earlier helped to raise standards in magistrates courts, even though (1894) only a tenth of convictions were so reviewed, and only one in a hundred of the reviews actually led to a conviction being quashed. Those cases in which magistrates were overruled frequently got into the press and the law reports, and also could have affected promotion prospects. Magistrates had no security of office as had the judges; as employees of the Government they were selected, promoted and transferred by the Law Department.

The Law Department came to be regarded as 'the crack Department' of the Colonial Government, an indication perhaps of the important part played by the law in the general field of administration. Of all the Government departments it demanded the highest educational standards and offered the highest pay. The political head of the department was the Attorney-General, who was responsible for courts, police, prisons, the legal profession, the preparation of indictments and the drafting of legislation. Eminent lawyers and statesmen such as Porter, Upington, Innes and Schreiner gave the office a special distinction, while at the end of the century the permanent head of the department Sir John Graham, became a legend amongst civil servants for his industry and high standards. After the conquest of the Republics in the Anglo-Boer War (1899–1902) many Cape officials in the Law Department were sent to the Transvaal to establish a new judicial system there. The statutes which they prepared were based largely on Cape models, and in turn these statutes became the basis for the organisation of courts and rules of evidence and procedure adopted by the whole of South Africa after Union.

The Land Register

The development of efficient methods of regulating land ownership and transfer was one of the preconditions for economic growth in the Colony. In the early years of the century, circular farms were still

being appropriated with a radius of a half-hour's walk, but the British soon attempted to stabilise land ownership, and later made the Registrar of Slaves responsible for compiling a proper land register, so that he became known as the Registrar of Slaves and Deeds. By the middle of the century only a little over half the Colony's surface area had been granted in legal title—the creation of an efficient and reliable service did not mean that it was used—but the number of deeds passed each year was to rise from only 200 at the commencement of the century to over 10,000 at the end. The Cape Land Register was eventually copied in a number of other colonies, and became the basis for land registration in the whole of South Africa. The Law Journal , which regarded it as perhaps the most simple and complete system of its kind in the world, expressed amazement that it had not been adopted in England.

Law Enforcers:
Army and Police

Punitive raids, wars of conquest, the suppression of crime and the maintenance of'proper relations' between masters and servants were so closely interrelated in the Colony that police and military functions were often inseparable.

The military consisted primarily of Imperial troops who started by garrisoning the Cape but then increasingly became involved in frontier warfare. The Dutch had originally colonised a portion of southern Africa populated only by Khoi and then by San people, the so-called Hottentots and Bushmen. Shortly before the British occupation of the Cape, however, white farmers moving up the east coast had begun to penetrate areas populated by black, Bantu-speaking farmers, who will be referred to here as Africans. It was the British Imperial troops who finally accomplished what the colonial forces had been unable to do, namely the conquest of African tribal groups along the Colony's eastern frontier. By and large British troops were not drawn into police work, but they provided the shield of force behind which para-military forces and ordinary police units could operate.

At no stage did the white Colonials have any permanent military force of their own; in the first half of the century they set up mainly Afrikaans-speaking commando units, in the second half mainly English-speaking Volunteers, but both the Commandos and the Volunteers operated on a part-time basis only.

Until the 1850s the Commandos were frequently called up to fight on the frontier. They were mounted infantry drawn largely from the countryside, who wore rough clothes, elected their own officers and

were prepared to leave their farms for only a few months at a time. Although their numbers in battle increased from 800 in the Frontier War of 1811 to 5,000 + 3,000 reserves in 1846, they combined badly with regular troops and their military effectiveness declined, probably because their African opponents were increasingly able to match them in guns and horses. Their activities were always controversial, and Attorney-General Porter likened them to wolves who attacked the African tribes.

From the 1850s onwards the Commandos were largely replaced on the frontier by the Volunteers, who were based mainly in the towns and organised along the lines of British models. Many judges and lawyers joined the Volunteers—'exchanged the gown for the sword'—and even the normally pacific Porter was praised for his military ardour. In peacetime the Volunteers indulged in uniformed parades while "the possession of a rifle and the opportunity of buying ammunition was much sought after in a country where everybody was scared of a native uprising, everyone wanted to shoot game, and many were keen on target shooting". In wartime the Volunteers usually served as support troops for the Imperial forces, but occasionally they took part in 'small native wars' as members of purely Colonial expeditions; by 1894 their numbers were just short of 6,000.

Because of their part-time nature, Commandos and Volunteers could not be integrated into any permanent machinery for law enforcement, so that a special force had to be created to fill the large gap that existed between the military and the constabulary. This special force of 'soldier-policemen' was the well-known Cape Mounted Rifles (CMR), whose name had first belonged to a cavalry regiment of Khoi Khoi troopers maintained by the Imperial authorities. Their task was to pacify the border areas and to create a court-centred administration in the Transkei, but they also "helped to realise the Government policy towards the Griquas and Basutos", and their activities became increasingly military in character. Eventually their paramilitary character was given statutory recognition and Inspectors and Sub-Inspectors were re-named as Captains and Lieutenants in the "Permanent Colonial Forces both for police and defence". Their numbers fluctuated at around the 700 mark.

Because the CMR was so heavily involved in military work on the frontier, a second force had to be created to do police work in the interior. In the early 1880s the Cape Police force was established with this end in view. Because they had so many duties-listed under twenty-

one heads which included patrolling, tracing criminals, inspecting native locations and visiting pounds—the Law Journal considered it "amusing to remember that the Cape Police are under the control of the Law Department and not that of the Colonial Defence. . . . [They] really constitute a valuable military and not a civilian corps". While generally praising the police and complaining that they were overworked, theJournal pointed out that they tended to be too influenced by pressure from local inhabitants and sometimes strained evidence to get a conviction; "a man of weak character might sometimes find it difficult to refrain from making an accused or suspected person talk . . . ." The Cape Police force was slightly larger than the Mounted Rifles, with an establishment of about 1,000 officers and men.

In addition to these two para-military police forces, whose functions were clearly related to the conquest, integration and subordination within the Colonial legal order of Africans, Griquas and San in the east and north of the Colony, there were a number of police forces who had 'ordinary' police duties similar to those carried out by policemen in England. These were municipal police forces in the main centres, and small local forces in the country areas under the control of resident magistrates. Finally a special Native Affairs Police force consisting largely of Africans under white command was established in the Transkei. For many years these ordinary police forces remained smaller than the para-military ones, but towards the end of the century their total numbers increased rapidly and by 1910 they numbered nearly 2,500 men in all, of whom 700 were in the Native Affairs Police.

The racial composition of the various forces was such that whites were in strong control, both with regard to rank and numbers. In the Transkei, the largely white Mounted Rifles were equalled in number by the largely African Native Affairs Police, but elsewhere white police out-numbered their dark-skinned colleagues by approximately five to one.

Prisons and Punishment

The abolition by the British in the Cape in 1796 of extraordinarily barbarous punishments such as breaking on the wheel and mutilation left the judges and magistrates power to impose only ordinarily barbarous punishments such as hanging, flogging and imprisonment. Banishment and transportation were unsuited to conditions at the Cape, but imprisonment was gradually introduced to supplement fines and whipping. At first prisons were used solely for persons awaiting trial,

condemned persons awaiting execution and civil debtors, and the warders were paid by the masters, relatives or creditors of the prisoners. Later, however, prisons and convict stations were established to receive convicts, and they were put on a more organised and regimented footing. The aimless and unprofitable work done by prisoners in the early part of the century gave way to labour on public works, and the whole road system through the mountains of the south-western Cape was constructed by prison labour, as was the breakwater at the Cape Town docks. By the end of the century prisoners were being hired out in large numbers to farmers and mineowners, and at one stage the De Beers diamond mines in Kimberley were employing more than 10,000 prisoners a day.

As civil government was extended into the interior via the expanding system of magistracies, a series of small prisons were built throughout the country. Overcrowding of prisons was chronic, and complaints of bad treatment became more and more insistent, until the Colonial Government was compelled to appoint a special Inspector of Prisons. Then as now the aim of reforming prisoners was accepted in principle while the officially prescribed diet of those days compared very favourably with that provided today. The main picture is one of prisoners suffering from neglect as much as from institutionalised harshness, and of great unevenness in the quality of prison life from one centre to the next. Criticism of prisons seemed to mount towards the latter part of the century, but it is not clear whether this was because conditions got worse or sections of the public became more concerned. An early target for criticism was the practice of chaining prisoners to the wall in insecure prisons to prevent them from escaping; later, when prison buildings were more substantial, the excessive imposition of spare diet and solitary confinement was condemned.

On one occasion Chief Justice Hodges refused to convict a prisoner charged with jail-breaking, on the grounds that the prison was so tumbledown and overcrowded that he would not punish anyone for attempting to get away "from such a wretched hole". Some years later bad hygiene led to outbreaks of smallpox and measles in two prisons and the spread of a disease in a third which necessitated the prisoners being assisted, some even carried, into court. Criticism was also levelled at the rule that 'life' prisoners not only had to do hard labour but also had to spend all their years in chains.

Figures given in the Cape Statistical Register indicate that by the end of the century there had already been established at the Cape the basic

characteristic of present-day prison populations in South Africa, namely a very large annual intake of short-term prisoners. Thus sentences of ten years' penal servitude, so common in Europe, were said to be almost unknown at the Cape, where even five years hard labour was regarded as an exceptional punishment. Of about 61,000 persons charged with criminal offences in the magistrates' courts in 1894, approximately 55,000 were found guilty and 42,000 admitted to prison. (In the Supreme Court 800 indictments led to a further 600 convictions.) Yet at the end of the year there were only 3,000 persons in custody, which suggests that the overwhelming majority of prisoners received very short sentences. Allowing for the increase in population, the present-day annual number of persons received into prison in the whole of South Africa is proportionately about the same while the average daily prison population is approximately twice as big. Also making allowances for population differences, the annual intake of prisoners at the Cape in 1894 was roughly five times as great as that in England and Wales at the time and the daily average prison population roughly three times as great.

In the sphere of capital punishment the attitudes of those in authority at the Cape appear to have been much more lenient than those in South Africa today. In the early part of the century capital punishment was imposed for a wide variety of crimes, and as late as 1831 a man was hanged for sodomy. A survey published in 1897 suggests that in the 1830s the Supreme Court judges imposed death sentences for serious cases of housebreaking, arson, cattle-killing, theft, incest and rape, and attempted murder, but that thereafter the death sentence was reserved almost exclusively for murder. Death sentences passed in 1841 and 1862 on persons found guilty of rape seem to have been matters of note, and in 1888 a book reviewer in the Law Journal doubted whether persons found guilty of rape would ever again be sentenced to death. "It is highly questionable", he observed, "whether the morbid sympathy created by the severity of the punishment for the doomed man might not weaken the results expected from that penalty, and add another wrong to the injury already sustained by the woman." Ten years later, however, the Chief Justice condemned to death a prisoner who had pleaded guilty to rape and attempted murder.

It has already been mentioned that Attorney-General William Porter attempted to get Parliament to abolish the death sentence. The question of abolition was debated by members of the newly created Forensic Society (1893), while the Law Journal contained a number of articles

which favoured abolition (the first strongly retentionist article appeared only in 1909). Although death sentences were always imposed for murder, once even by de Villiers on an undefended man, there are indications that it was sparingly carried out. Thus the Cape Statistical Register for 1894 records that only one inquest was held consequent on a judicial hanging, and seems to record no other figure for death by execution.

If lynching is as American as cherry-pie, then flogging is as South African as biltong. The authorities at the Cape never seem to have been in doubt about the necessity for using the cat and the cane as major instruments of punishment. What was in issue was whether farmers and local officials should be legally allowed to thrash servants and whether the law should prescribe compulsory whipping for stock theft. Neither of these demands was in fact acceded to, thanks partly to the energetic opposition of de Villiers who saw it as his duty to mention during the course of an address to a jury (1884) that the 30,000 lashes administered in one year in the Eastern Province alone, where stock-theft was on the increase, were proof that lashes were not the infallible preventive they had been represented to be. Far better, he declared, to concentrate on an efficient police force, properly regulated canteens and control of smuggling.

On the whole magistrates were more prone to be influenced by the demands of white farmers than were the judges. "In some districts," wrote the Law Journal , "a 'flogging magistrate' is popular though he may not be humane." In 1894 magistrates imposed whipping in slightly over 1,000 cases, while a further 118 prisoners were whipped for disciplinary offences in prison.

Prison was also used to hold civil debtors, insane persons and witnesses who the authorities feared might abscond. Civil debtors could spend years in prison. The judgement creditor had to pay maintenance for an incarcerated debtor, and one Cape merchant is reported to have set aside £ 3,000 in his will to ensure that a debtor of his was maintained in perpetuity—only a sermon by a well-known bishop on the 'Unforgiving Spirit' caused him to relent.

A feature of the system which by then was widely known as 'British justice' was that agents of the law were themselves subject to the law. Thus special regulations penalised cruelty or corruption on the part of policemen and warders, and although it was difficult to enforce such regulations, in 1894 over 300 Cape Policemen, guards and constables were convicted under them (compared with nearly 500 prisoners so convicted).

Black and white prisoners were locked up in the same prisons, a fact which judges regarded as constituting a special degradation for the whites and hence a reason for imposing lighter sentences on them. Criticising this approach, the Law Journal suggested an opposite course so that the treatment of whites "while in durance vile should be at least in proportion to the height from which they have fallen, a level upon which Europeans are credited almost with an incapacity for crime."The Journal was also critical of the fact that whites in a convict establishment and certainly in a jail constituted an upper class of prisoners. By 1894 just over 1,000 prisoners (i.e. a third of the end-of-year total) were accommodated in single cells, from which it might be inferred that association between black and white prisoners took place more at work than in the cells.

There were nearly 450 jailers in charge of prisoners that year, when separate figures for the racial composition of the prison staff were not given. There did not seem to have been any rule forbidding brown or black warders from being in charge of white prisoners; on the contrary, later evidence suggests that such a situation was not uncommon.

Some judges made a point of visiting prisons with a view to exposing abuses, and in an address to a jury in Cape Town which was widely reported a judge went out of his way to criticise the fact that prisoners were not classified. Administrative tradition and economic advantage rather than any purported scientific policy governed penal practice, which might have been as well for the prisoners considering the level of penological thought in those days. In 1892 the Law Journal carried an article by a relatively enlightened Transvaal judge under the heading 'The Scientific Study of the Criminal' in which the judge set out the distinguishing features of the criminal as established by science: sugarloaf form of head; large lower jaw; projecting ears; pale complexion; early wrinkles; abundant hair (baldness rare); rarely good-looking. An extraordinary and ape-like agility enabling him to effect escapes in a wonderful manner. Insensitive to pain (an argument against flogging). The judge pointed out, however, "that an individual was found with all the features of the criminal, but who had notwithstanding led a most respectable life".

White Justice

Though the British Government insisted on the technical equality of all before the law, it did not insist on equality of all behind the law, that is, of all those at the dispensing rather than receiving end of justice. The

administration of justice in the Cape in fact remained almost exclusively in the hands of white men-Colonial Office appointees, retired Imperial officers, immigrants from Britain or their descendants, and anglicised Afrikaners. Not only judges and magistrates, but all advocates and attorneys seem to have been white, though there were a few law agents who were not. In the court-room the only dark-skinned person to occupy any official position of importance was the interpreter, who was frequently brown or black.

The law relating to juries contained no colour bar, and was used as a precedent to justify a non-racial franchise, but in practice juries tended to be dominated by whites. A number of blatant miscarriages of justice resulted, and a visiting British writer observed that trial by jury in South Africa sometimes was an arrangement whereby a white man who had forgotten himself in dealing with a black man could be relieved from the consequences. Chief Justice de Villiers conceded that there was much truth in this, but that it was wrong to allege as a general rule that offences of white against black were not regarded as of the same quality as black against white. The courts were open to all, the press was free, and it was not true that juries consisted of white men only; de Villiers said he remembered the intense excitement caused in a few outlying districts by the report that some coloured men were to sit on the jury, but he had since that time presided at trials in remote country districts where white farmers were called out without a word of remonstrance with coloured men, while in Cape Town it was the most ordinary occurrence at the Criminal Sessions to have mixed juries of both races.

The jury system was frequently described as the bulwark of freedom for British subjects, yet one of the freedoms it upheld in the Cape was what was regarded as the time-honoured right of white farmers to thrash recalcitrant brown or black servants. With wry pride Judge Cole in his reminiscences recalled two occasions from his early days as an advocate when clients of his had benefited from this situation. In the first he had defended an Englishman charged with the unmerciful flogging of an African servant. The jury were all English-born, and he asked them: "Do you think it more likely that a Kafir should come here and lie or that an Englishman, your own countryman, should commit atrocities?" The judge's summing up was strongly against the accused, but without even retiring the jury acquitted. In the second case, a wealthy Afrikaner farmer had been charged with murder as a result of his having thrashed to death an African servant with a sjambok. After spurious medical evidence had been given, the accused was

acquitted, and the cheering spectators wished to carry Cole on their shoulders out of court. In 1892 the Law Journal referred in strong terms to what had become known as the 'East London Case', in which a jury had acquitted a man called Hart and his accomplices on a charge of causing the death of an African by inhuman flogging, torture and exposure. "The presiding Judge, Mr Justice Jones," it wrote, "pronounced the verdict to be a disgrace to the community and declined to thank the jurors . . . for their services."

The strengths and the weaknesses of justice at the Cape were well brought out in two matters which stirred enormous controversy at the time. The first was the 'Koegas Atrocities' case (1879), which arose out of the shooting in cold-blood of captured San prisoners, including women, by white farmers in the north-west Cape. The farmers were charged with murder, and despite a strong summing up against them by the judge, they were, amidst great applause, found not guilty. The furious judge wrote to Saul Solomon asking him to take up and publicise the matter, which Solomon did through the medium of the Cape Argus . The paper attacked the jury but more particularly the Attorney-General (Upington) for his failure to have the trial and a second similar one transferred to an area where a less partial jury might have been selected. The Attorney-General sued Solomon and the editor of the paper for libel, and the case was heard before two judges in Cape Town, one of whom was de Villiers. De Villiers held that the most gruesome atrocities had been committed against defenceless prisoners, and that the Attorney-General had behaved reprehensibly, but that nevertheless criticism of him had gone too far and he should be awarded nominal damages.

The other case (1885) flowed from the shooting in the eastern Cape of an African by a farmer named Pelser. Despite many contradictions and improbabilities in Pelser's story, the Solicitor-General of the eastern Cape accepted that Pelser had acted in self-defence, and declined to prosecute him. A Reverend Don thereupon wrote sharply to the press about the Solicitor-General's dereliction of duty, and mentioned in terms that Pelser was "a wretched murderer". The Solicitor-General retaliated by indicting Don for criminal libel, and the case came before a judge and jury in Grahamstown. Neighbours of Pelser's had previously threatened to take the law into their own hands if Pelser was charged, and now Pelser supporters nearly swayed the jury at a bar to which they retired each evening. In the end, however, the jury found in favour of Reverend Don, who was praised by the judge and then by the

Law Journal for "lending himself . . . to the cause of free discussion and impartial justice".

These two cases illustrated that though the courts might not always have been effective in protecting blacks from atrocities by whites, they would give a fair measure of protection to whites who exposed such atrocities.

The one place where an exception was made to the use of all-white or white-dominated juries was the Transkei where for a time all-African juries were empanelled in cases in which Africans only were charged. Despite the fact that "the native juries acquitted themselves most satisfactorily", they were discontinued. In at least one case, however, an African appears to have sat on a jury with whites. Africans were not legally disbarred from being jurors; their names were simply left off the jury lists. Tribal chiefs in the Transkei were permitted in practice to exercise limited jurisdiction over matters involving tribal law and custom, but otherwise the active and extensive judiciary in the Colony remained almost exclusively in white hands.

With regard to recognition of tribal law and custom Cape policy was not marked by its consistency. As more and more Africans were incorporated by annexation into the Cape legal order (at the end of the century Africans constituted well over half of the total population) greater tolerance was shown towards their traditional law in the newly annexed territories. Even in the Colony 'proper', magistrates informally decided cases by tribal custom. A Cape legislator explained to the Royal Colonial Institute in London that the African in the Cape had a department in the government all to himself. A host of officials were

charged to administer justice and maintain order among native communities, according to an unwritten law in which native precedent and customs are regarded as far as they are right in principle. There are schools for the natives. There are missionaries to the natives. There are native taxes. There are lands reserved for the natives. There is a method for converting natives into citizens. . . . The object of all is to make the African as much like the European as possible (1874).

This dualism of policy was based not so much on principle as on expediency; the primary objective was to cause as little disturbance and expense as possible. It was reflected in a legal dualism whereby a pragmatic interrelationship between Roman-Dutch law and tribal law was maintained, with Roman-Dutch predominating in the Colony 'proper' and tribal law in the Transkei.

If the first half of the century saw the progressive abolition of restrictive laws imposing disabilities on brown men in the western Cape, the second half witnessed the progressive extension of such laws to black men in the eastern Cape. Pass laws were revived, this time to deal with so-called 'native foreigners'. As the borders of the Colony were pushed further and further up the coast, such 'native foreigners' became British subjects, remaining "natives' as far as duties were concerned and 'foreigners' as far as rights were concerned. A similar development took place in relation to locations . At first these were tracts of land on the border set aside for African occupation, but gradually they came to be any area defined and set aside for African residential purposes, "the cramped and neglected fragments, like flotsam and jetsam in a flood tide of white settlement, that have become the normal portion of the Bantu population all over South Africa". The combination of locations and pass laws is referred to in a law report late in the century, which speaks of a large pass raid by police on the Queenstown location, after which arrested Africans were brought in batches of twenty before the court. Special legislation was also passed to restrict access by Africans to the so-called white man's liquor ; though the Innes Act, as the legislation was called, was intended to be a temperance measure and to protect Africans, it in fact led to increasing harassment by the police and a strong sense of grievance. Racial disabilities could also be imposed by administrative action taken in terms of avowedly non-racial statutes. Thus Africans were deliberately lured to the mines and railways by the promise of guns , and then later disarmed by boards set up in terms of the Peace Preservation Act (1878) which did more to destroy the peace than any other contemporary piece of legislation. There was no dissimulation about hut and labour taxes , which were differentially imposed with the open purpose of paying for administration and forcing Africans to work for white employers. As Innes later put it: "Labour meant labour for other people. No toil, however strenuous, upon a Native's own land was dignified enough to satisfy the tax collector." On the diamond fields at Kimberley another feature of South African life made its first appearance: the housing of African contract labour in compounds . Introduced first as a security measure to prevent diamond smuggling, compounds soon proved to be a cheap and convenient measure for controlling migrant workers. Nightly curfews on Africans in urban areas were also imposed.

More and more the legal machine which affected the whole population was hitched to the administrative machine which affected Africans

only. The established police, court and prison system was used to penalise Africans who broke the special laws aimed at their control. The law thus became involved not only with the maintenance of 'proper relations' between masters and servants, but also with the perpetuation of quasi-colonial relationships between whites and Africans. The process was uneven, and thousands of African Parliamentary voters were exempted from most disabilities. Compared with what was to come the number of Africans prosecuted in terms of differential legislation remained relatively small. Yet a legal-administrative machine for the control of Africans was created which was to be imported in more rigid form into the Transvaal after conquest, and which was then to return to the Cape in harsh all-Union legislation.

It should not be inferred from the above remarks that all the time of the courts was taken up directly with maintaining master/servant and white/black relationships. Out of 47,000 prosecutions brought in the magistrates' courts in 1894, only about 7,700 were brought in terms of special legislation of the kind mentioned: Masters and Servants Act (4,000), Pass Laws (1,500), Vagrancy (1,200) and Trespass (1,000). Of the other offences, Drunkenness alone accounted for over 11,000 prosecutions, Theft for 5,000, Assault for 5,000, Municipal Regulations for 3,500, the Scab Laws for 1,500 and Swearing for 1,000. Many of these latter prosecutions involved protecting the property, persons and peace of the white community, but at the same time 10,000 out of 61,000 persons charged in all these cases were white. [Whites represented 25 per cent of the total population of 1,500,000 and were responsible for 16 per cent of all charges.] It should be remembered too that the magistrates' courts also heard 20,000 civil matters involving claims totalling £200,000, in respect of which most debtors were probably white.

The law reports reflect a wide range of civil disputes, covering such matters as inheritance, insolvency, divorce, water rights and mining claims, while towards the end of the century litigation was indulged in over barbed wire, bicycles and telegraph poles. There were a surprisingly large number of cases involving internal wrangles, mainly over property and partly over doctrine, in the Dutch Reformed and Anglican churches and in the Moslem community; there were also, by contemporary standards, an extraordinary number of actions for defamation.

Judging from the names of parties as revealed in the law reports and in the digest of cases in the Law Journal , most civil cases involved white litigants only, whereas most criminal prosecutions involved brown and

black accused. Yet there were also cases of coloured men and Africans suing whites over land and cattle or for wrongful arrest, of whites suing coloured men and Africans for breach of contract or eviction, and of dark-skinned persons suing other dark-skinned persons for a variety of causes. As has been shown above, many thousands of whites were prosecuted for criminal offences.

Lawyers fought hard for their clients in criminal as well as civil matters, and even in undefended matters it was not unusual for an accused person of any race to be acquitted because of lack of evidence. Thus in the Supreme Court in 1894 25 per cent of accused persons were acquitted, and in the magistrates' courts 10 per cent. The law reports also contain a large number of judgements of the Supreme Court in which convictions and sentences of the magistrates' courts were set aside on appeal or review. Sometimes the convictions and sentences were altered on procedural grounds, sometimes on points of statutory interpretation and sometimes purely on the evidence. In one case, for example, the judges overruled a decision that a servant who went to the police to lay a complaint about his employer was unlawfully refusing to work. In another they quashed the conviction of a (coloured) man for obstructing a (white) policeman, holding that as the police had been effecting an unlawful arrest the accused had been entitled to offer violent resistance to them. In a further two cases they treated an African's hut as his home and awarded damages against officials who unlawfully interfered with his privacy.

The Supreme Court judges had no testing right in relation to legislation similar to that enjoyed by their namesakes in the United States of America. The sovereignty of the Cape Parliament was subject only to the overriding authority of the British Government, whose veto could not be invoked by the courts but only by an appeal made directly to the Executive authorities in Whitehall. The fluctuating concern of the Colonial Office in London for the welfare of dark-skinned British subjects may be regarded as the Imperial equivalent of a Bill of Rights, and like the American Bill of Rights, this Imperial responsibility was open to a variety of interpretations. Coloured and African leaders might look to the courts for a favourable interpretation of, or so-called loophole in, a Cape Act, but if they wished to have the Act as a whole set aside they had to proceed to London where they could normally expect a polite but fruitless hearing.

The position was different with regard to subordinate legislation, such as municipal by-laws, and the actions of administrative or police

bodies. Here the Supreme Court had limited powers of intervention based on its inherent jurisdiction to declare such by-laws ultra vires or such actions unlawful. If a by-law or regulation was uncertain, impossible to enforce or in any way contrary to the provisions of the enabling Act of the Cape Parliament, then the Court could declare it ultra vires . In this connection it was presumed, on the British model, that Parliament did not intend to permit subordinate authorities such as municipalities to impose special disabilities on any class or section of the community. The Court could accordingly declare that discriminatory by-laws were ultra vires , provided, however, that Parliament had not expressly or by necessary implication authorised such discrimination. One case in which this principle was upheld arose out of the claim by an African for return of a stick taken from him by municipal authorities pursuant to a by-law which prohibited 'any native from carrying sticks'. Similarly there were a number of rules of construction which enabled the Court to review the actions of boards, officials or policemen and to declare such actions unlawful if improperly exercised.

The effective constitutional role of the Supreme Court was accordingly limited to a review of subordinate legislation and of administrative and police actions. Schooled in British procedures and applying British canons of construction the judges supervised large areas of administration and local government. They did so on an ad hoc basis and only in relation to concrete disputes, either civil or criminal, which came before them. Nevertheless they frequently handed down rulings which embarrassed the administration or the police, and by so doing earned for themselves a reputation for independence and impartiality.

The court system at the Cape, then, fulfilled a variety of complex and interrelated functions. It was central to the spread of government, both geographically and in terms of population groups. It integrated black, white and brown into a common polity in which different rights, duties and disabilities attached to different sections of the community. The lower courts helped to keep the peace, collect debts and maintain relations of domination between master and servant, and white and black. The higher courts supervised the lower courts, regulated proprietary transactions of merchants and landowners, protected the reputations of leading citizens, scrutinised the actions of the administration, and both maintained and restrained the power of the dominant section of the community. As a whole the court system emphasised on a day-to-day basis the subordination of all inhabitants of the Cape to a common law-making authority. Together with the expansion of a

single-market economy, the promotion of a single language (English), and the propagation of the belief in a single deity (God), the extension of a single court-centred administration may be regarded as one of the main integrative forces in South African social history. Yet while it bound the diverse peoples of South Africa together in submission to a common authority, it was also destined on an increasingly large scale to enforce separation; the greater the integration, the more rigid the segregation. Much of the remainder of this book will be devoted to a discussion of this apparent paradox.

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."

Chapter Four—
The Incorporation of Africans into the Legal Order

The Administration of Justice in Tribal Society—Pre-Conquest

Settled communities of Bantu-speaking people existed in the Transkei in the sixteenth century and probably much earlier, according to oral tradition and the journals of shipwrecked Portuguese sailors. Recent archaeological research has disclosed that vigorous and well-organised communities, almost certainly Bantu-speaking, occupied the Transvaal and the Orange Free State in the eleventh century, leaving behind them a complex abundance of ruins and extensive evidence of mining and metalworking. According to this evidence the claim that black and white entered South Africa at the same time in the middle of the seventeenth century is incorrect. The precise relationship of the early peoples to the present major tribal groups in South Africa has still to be worked out, and only now are South African historians beginning to write up the pre-conquest history of the African peoples. A considerable amount is known, however, through oral tradition and the records of travellers and missionaries, of the principal characteristics of African government and law from the late eighteenth century onwards, and although regional variations existed and changes took place in the course of time, the basic patterns are fairly well established. The following observations are based on some of the better known secondary sources.

As far as the administration of justice was concerned, in traditional African society every man was his own lawyer, and his neighbour's too, in the sense that litigation involved whole communities, and all the local men could and did take part in forensic debate. Women did not ordinarily participate in court cases other than as witnesses, but amongst the men there was little division of functions. The concept of professional judges acting according to formalised rules as part of a specialised and aloof administration was quite foreign to African jurisprudence, as was the notion of men hiring themselves out on the basis of their talent to plead. When pre-judicial attempts to resolve disputes failed, the arguments could be pressed to judgement before the chief, whose

word was law; but the chief invariably acted as spokesman for his councillors, who in turn sought to uphold and reinforce the established norms of the tribe. In this context the good chief was reckoned not by the terror he could inspire or the magnanimity he could display, but by his skill in articulating the sense of justice (just-ness) of a relatively homogeneous community, which involved his applying universally accepted rules and precedents to particular disputes in a manifestly appropriate way. His authority derived not from his control of armed force or from his place in a learned bureaucracy, but from his position as leader and representative of the community. His coercive power was dependent not on any praetorian guard or professional police force but on the general body of tribesmen who made up his army. A chief who was corrupt, tyrannical or incompetent risked being deposed or assassinated; alternatively, dissatisfied sections of his tribe could move away from his jurisdiction and establish a new unit elsewhere.

In times of stress and upheaval, such as during the difaqane (forced migration) which decimated populations and revolutionised tribal structures in the early part of the nineteenth century, militarist emperorchiefs like Shaka and Dingane developed structures of rule that were far more authoritarian than those described above, though even amongst the Zulus it was the 'just and generous' king who ruled for a long time rather than the aggressive soldier-kings who forged the kingdom. Generally, too, the procedures were neither benign nor rationally based when sorcery was being investigated, partly because the life of the victim was held to depend on the extraction of a confession. Yet what were innovatory or else peripheral features of tribal adjudication have become widely accepted in white mythology as characteristic and central. Recalling his history lessons at school, Bloke Modisane wrote in his autobiography that "the ancestral heroes of our fathers, the great chiefs our parents had told stories about, were in a class described as bloodthirsty animal brutes. . . . 'Which adjectives did you use?' I asked classmates after writing the examinations. 'I described Dingane as malicious, venomous, ferociously inhuman, beastly, godless; I should get a good mark.'" It is assumed by most whites that all chiefs at all times were ruthless despots and that the cruel procedures used for the 'smelling out' and punishment of witches were characteristic of ordinary litigation.

The ease with which Africans in the Cape adapted themselves to British-type courts came as a surprise to many persons unacquainted with African traditional legal procedures. In 1889 the Cape Law Journal

commented that the manner in which "the ordinary native parries the most dexterous cross-examination, the skill with which he extricates himself from the consequences of an unfortunate answer, and above all, the ready and staggering plausibility of his explanations have often struck those who come into contact with him in the law courts. He is far superior, as a rule, to the ordinary European in the witness box" (1889). As the Law Journal pointed out this forensic skill derived from popular participation in the traditional African lawsuits, which differed from British-style court cases primarily in that they did not involve a class of professional lawyers and judges operating according to a formalised and esoteric set of rules and conventions.

Such difficulties as did arise for Africans in Colonial courts stemmed from these differences in conventions rather than from differences of objectives, as other articles in the Law Journal indicated. One story, purporting to be the narrative of 'an uncivilised native', though in fact written by a magistrate, described the tribulations of an African who gave evidence against a long-standing enemy in the Circuit court (1891). First it described the discomfort of having to wear European dress ("my feet, which have known freedom to this day . . . seemed as if they were being quietly roasted"). Then it told of how the narrator agreed to every proposition put to him by the white man who spoke for his enemy, believing that this was the polite thing to do, and that after the white man had finished speaking he would have the opportunity "to thunder forth in (his) best style what (he) knew, convincing everyone that he was an orator and councillor of the chief". Having lost the case as a result of his good manners, he lamented that he was an old man and knew of only one way of conducting a case, of the new way he was ignorant. A similar story is told in a pamphlet "Is gratitud to be found among the natives?", where an African witness for the prosecution, after being confounded by the rules of evidence, conclude by saying that he has never before seen a thief brought up for trial with a view to acquittal.

On the other hand, it was sometimes the lawyer and not the witness who was discomfited, as when an African witness responded literally to questions:

Prosecuting counsel: Your name is Klaas?

No Answer.

Prosecuting counsel: Mr Interpreter, please make him answer.

Here a dialogue takes place between the interpreter and the witness,

Interpreter: Yes, I know my name is Klaas.

Prosecuting counsel: Why couldn't you say that before?

Witness: That is my name. You knew that. (1893).

These misunderstandings should not obscure the great similarities of approach and procedure which existed between the traditional and the Colonial courts. If classification is based on the essential nature rather than the detailed forms of the enquiry, then the similarities are more evident than the differences. Both methods of adjudication dealt with much the same range of injuries to person, property, reputation or public order, and both proceeded on the assumption that the truth or otherwise of an allegation could be determined by the orderly presentation of evidence and its rational evaluation. Both systems of jurisprudence investigated problems of veracity in a context of probability, and in both the element of the supernatural existed only on the fringes (the oath and witchcraft). Torture and trial by ordeal were untypical of either, and the major difference lay not so much in the nature of the enquiry as in the selection of people who conducted it. Thus the Law Journal was able to describe with great enthusiasm the refinement and skill displayed by tribal litigants and their supporters in settling legal disputes. "The Socratic method of debate appears in all its perfection, both parties being equally versed in it. The rival advocates warm as they proceed, sharpening each other's ardour, till from the passions that seem enlisted in the contest, a stranger might suppose the interests of the nation at stake. . . ." (1889). The article was well received and was soon followed by a fuller account of traditional African government and law, which stressed that the typical form of tribal rule was far from being despotic. Customary law, it pointed out, distinguished roughly between criminal and civil suits on the basis that a man's goods were his own property, but his person belonged to the chief. In cases of treason, murder, assault and witchcraft the injured party was considered to be the chief, and not the victim; in other cases, such as defamation, theft or assault on a man's wife, the man sued in his own name. Possible punishments or forms of compensation included confiscation of cattle or death. Summary executions were usually inflicted for assault on the wives of chiefs or aggravated cases of witchcraft, but otherwise the death sentence "seldom followed even murder, when committed without the supposed aid of supernatural powers; and as banishment, imprisonment and corporal punishment are all unknown in (African) jurisprudence, the property of the people constitutes the great fund out of which debts of justice are paid". Records of cases were kept in the

heads of old councillors, and rules were derived from an accumulation of precedent rather than any generalised and systematic collection of laws.

It should be added that execution of judgement, which usually took the form of attachment of stock, was carried out by a special officer. The death penalty was practically confined to cases of suspected witchcraft, and was normally spontaneously carried out after accusation by the diviners, and then reported to the chief. Some of the great chiefs of the nineteenth century were in fact strongly opposed to capital punishment in all circumstances, not excluding witchcraft, although they did occasionally impose banishment for life (Hintsa, Moshweshwe, Montshiwa). Corporal punishment, where it existed at all, played a far smaller role in law enforcement in African states and chiefdoms than it did in the British colonies or the Boer Republics.

Dispossession Nine Points of the Law:
Colonial Relationships and Colonial Attitudes

As the line of white sovereignty thrust up the east coast of South Africa and into the interior, Africans were incorporated in their hundreds of thousands into the new legal order, until eventually in every South African state there were more African subjects than white. The judicial problems that arose did not stem in their essence from any fundamental conflict of cultures between black and white since the two systems of jurisprudence were basically similar in character, inasmuch as both based the determination of liability on essentially rational procedures, in particular the testing of evidence by questions founded on what would have been reasonable in the circumstances. Nor did they flow from any specific legal doctrine, because by that time the common law of both Holland and England asserted the theoretical equality of all before the courts. The main difficulties arose from the context in which justice was administered, since the courts fulfilled a crucial role in the maintenance of colonial-type relationships between black and white. When Africans appeared in court they did so as members of a conquered race, put at a disadvantage by their poverty, their lack of educational opportunities, their menial occupations, and their inferior status in the eyes of most judicial officers and jurors. In the words of one magistrate, they were tried not by their peers but by their superiors.

A marked feature of nineteenth century social life was that greater dispossession of the African tribesmen led to harsher white attitudes

towards them and more severe use of the courts as instruments for their control. As long as the indigenous peoples of southern Africa possessed their own armies, they were accorded a certain measure of respect by the white colonists. Treaties were entered into with them, alliances created, and spies sent to their camps to learn about dynastic disputes and other possible sources of division. Africans were not regarded simply as a homogenous mass of persons stamped with the same characteristics, but were divided into friendly and hostile groups, each with their acknowledged leaders and systems of government. Africans responsible for killing white soldiers or missionaries outside the colonial borders were handed over to their chiefs for justice, and it was not unusual for early officials and travellers to describe such chiefs in admiring terms. Thus the private secretary to one of the first British Governors wrote after meeting a young African chief that the chief was "of an elegant form and a graceful and manly deportment; . . . his countenance (was) open, but marked with the habit of reflection, and he possessed in a superior degree a solid understanding and a clear head. . . . He seemed, indeed, to be adored by his subjects . . . and had one wife only". In a later passage he wrote of Africans generally as being a bold, brave and resolute people, a formidable enemy and a fine race of men (Barrow).

A century of frontier wars between white and black for land, cattle, water and security, changed relationships and led to a deterioration of white attitudes, with the result that it became increasingly rare for any white official to speak of African leaders in such a sympathetic way. It was the very similarity of interests and occupations of white and black farmers on either side of the fluctuating boundaries that brought them into conflict, not their differences. White trekker communities, British settlers, and African tribal groups might have spoken different languages and had different concepts of the supernatural, but all derived their incomes from and patterned their daily living around herding cattle and planting cereals on a shifting basis. Decades of contact and interaction reduced such cultural differences as existed: skills in hunting, herding, gathering and preserving food, and travelling were interchanged; white and black learnt each other's languages; and Africans sold their labour or exchanged skins, ivory and copper in return for guns, horses, blankets and trousers (Bibles and brandy were usually given free to selected notables). Yet as the culture gap diminished, the whites sought out differences, not in order to eliminate them, but to emphasise them, since they legitimised violence and confiscation, and

sanctioned permanent subjection. A liberal South African historian has noted that to European self-esteem, concepts of native debasement, of inferiority and savagery became convenient modes of thought and useful bases of action (De Kiewiet).

The history of the nineteenth and twentieth centuries [he wrote] is full of unconscious propaganda of the white race against the black race. Although the rifle and the burning torch secured the military submission of the tribes, their work was carried on by concepts and attitudes, sanctions and sentiments which imputed indignity to the natives and increased their submission, till they came sometimes to be regarded as a passive commodity, part almost of the raw material of the country.

There were some Cape officials, especially in the early years, who tried to resist this type of thinking. Thus Attorney-General Porter favoured treaties with African tribes, and condemned commando raids against them as wolfish and irresponsible.

When I hear of losses of cattle — of native foreigners in arms [he declared] and of the impossibility of preserving anything from the audacity of these incorrigible thieves — I do not shut my ears to the remonstrances of the sufferers; but when I hear also . . . that the purchase price of farms lying in the midst of all the mischief is steadily advancing, I cannot feel the evil is of that absolutely ruinous description which some persons . . . are in the habit of representing.

Yet as more land was annexed and more Africans were incorporated as labourers into the white rural economy, voices such as Porter's became fewer rather than greater. The frontier wars themselves produced waves of anti-African sentiment, but they were not the sole causes of hostility. The annexation of tribal land, the confiscation of tribal cattle and the destruction of tribal independence tended to feed rather than appease the tendency on the part of white colonists to regard Africans in a generalised way as unreliable but pliable elements needing to be treated with a firm hand. Now the great fear was of rebellion rather than of invasion, and of a concerted rising of the tribes that would lead to a general servants' revolt. In order to forestall the contemplated barbarities of the rebels, the forces of civilisation were deemed entitled, both in law and morality, to commit almost any atrocity themselves. Thus the punishment of rebels went far beyond military or legal exigencies. When the last major military conflict between black and white in the Cape broke out, Porter's successor as Attorney-General advised the Governor that rebels captured in arms

might be shot without mercy, and that there should be no preliminary trial, only an investigation to distinguish between rebels and other enemies. There might have been precedent elsewhere in the Empire for such a course, yet in the Cape the court system was well developed and could well have handled cases of treason and sedition. The Governor was in fact shocked by the harsh advice given him, and declared that the bloodshed in action provided sufficient example for the rebels and that punishment should not be inflicted indiscriminately on rebels whether captured in battle or surrendering. The next year, however, a new Attorney-General made remarks in Parliament which indicated that he condoned the shooting of defenceless men and women prisoners in the north-west Cape (the so-called Koegas atrocities); he was sternly rebuked by a Cape Town newspaper and later by the Chief Justice when giving judgement in a famous libel case, but he undoubtedly represented the opinion of the bulk of white farmers and administrators in the Cape (Upington).

Even relatively liberal whites were ready to point out the advantages of delivering to Africans occasional lessons in blood. A Cape judge who later became a leading administrator declared that when unfortunately it became "necessary to impress upon the savage mind by striking illustrations the duty of submission to civilised superiors", the process should be as short, sharp and decisive as possible; when "once that lesson (had) been thoroughly taught and learnt by heart", the basis would have been laid for an enduring obedience by men of all races to fair laws justly administered (Shippard). The more openly repressionist whites favoured more frequent reminders of the duty of obedience, and to the extent that they succeeded in persuading the authorities to deploy troops in shows of strength, these persons often provoked the very outbreaks which they claimed they wished to prevent. A number of white farmers welcomed punitive expeditions against African tribesmen because they saw them as agencies for increasing their supply of farm labourers and cattle. Like many a crusader before them, white irregulars who accompanied the army and police on campaigns of suppression found no incompatibility in being at one and the same time saviours of Christian civilisation and appropriators of captured booty (though it should be remembered that the 'loyal' African levies were not far behind in zeal when it came to the seizure of cattle). It may even be argued that in the nineteenth century it was the laws of warfare rather than the enactments of Parliament that sanctioned the spoliation by whites of black property. These irregulars

were able to take advantage of the benefits of military law without being held back by its restraints; whereas individual private stealth was frowned upon and potentially punishable in the courts, collective public dispossession was legitimised and even acclaimed.

The courts played little or no role in the punishment of rebellion or the distribution of rebels' property. On two occasions, the Cape Chief Justice ordered the release on habeas corpus of alleged rebel leaders who had been detained otherwise than in terms of the law, but normally the courts were too remote for effective access by Africans at the time when such access was required. In general, if the judges intervened at all during the period of rebellion it was not to adjudicate on disputes but to raise volunteers. Thus during the 1877 rebellion, an eastern Cape judge campaigned actively to raise men and equipment, and himself contributed a horse, saddle and bridle. Many of his colleagues belonged to Volunteer Regiments, and, as the Cape Law Journal proudly pointed out, saw public service in the arms of the Cape (1898).

While Africans were armed and organised into independent tribal communities—whether legally subject to the sovereignty of white governments or not—they could not be regarded as a passive commodity to be utilised in the same way as water or timber. The wars of disarmament of the late 1870s, however, decisively broke the military power of the tribes, and paved the way for their wholesale incorporation into the white administrative and economic system. These battles brought to an end a century of resistance by the Xhosa people, the longest and most persistent fighters against colonial domination on the African continent. British Imperial troops accomplished what Boer commandos and Cape Volunteers had been unable to achieve. Their main strategy was "to drive the Xhosas out of the bush and mountains into the open rolling country further to the east, where their cattle could be captured and their food supplies cut. The possession of comparatively good firearms by the (Africans) made each succeeding campaign more difficult, but the result was the same—the tribes gave in when their food stocks were exhausted or their great chief killed" (Tylden). In Natal, too, it was the British Army that finally vanquished the powerful Zulu regiments, although only after suffering the heaviest reverse known to Imperial troops for a century. The Basuto under the leadership of their warrior-statesman chief Moshweshwe were never finally conquered, and in other parts of southern Africa tribal groups fought long and hard to play off Boer against Briton and to retain their independence.

During this period of conflict there continued to be extensive trade and diffusion of ideas between different groups, and when wars took place both sides invariably entered into complicated alliances that cut across lines of race, tribe, colour and language. Yet at the end of the century the main tendency had become quite clear: white power in military, economic and political terms had effectively been established throughout southern Africa. Opinions amongst those in authority differed, and, as Sir James Rose-Innes pointed out, the standpoints of the various groups changed with the passage of time, so that the 'repressionists' who favoured a policy of dispersion in the nineteenth century altered their slogan to one of segregation in the twentieth. Yet with the exception of a small minority of persons, almost all whites believed in one form or another of white overlordship in South Africa, differing only on whether brown and black South Africans should have marginal representation in political institutions or none at all. Those favouring total exclusion went so far as to quote both Darwin and the Bible as authorities for their views: one Transvaal legislator declared that the Negro races occupied the lowest position in the evolutionary scale, and that it would be flying in the face of Providence to give them the franchise (Loveday).

It might be thought that the stronger the whites became in military terms, the less need there would have been for them to take severe punitive measures against dissident tribesmen. Yet the participants in the last and most reluctant of tribal rebellions, who adopted an almost entirely defensive strategy, were punished with an aggressiveness that was never employed against their more dangerous and independent forebears. These late rebels were the Zulus of Natal who in 1906 took to the bush with arms in hand to demonstrate their opposition to expropriation of their land and the imposition of a poll tax.

A recent thoroughly researched study of the rebellion has demonstrated that there existed in heightened form in Natal all the sociopsychological forces already seen to have been manifest in the Cape (Marks). Early on in the study it is pointed out that the fantasies of white Natal about black Natal were a combination of wishful thinking, which underestimated the actual power of the African population and their hostility to the oppressive features of white rule, and fear, which exaggerated its irrational nature and evil intentions. The fear took the form of "a strong, enduring and at times almost pathological anxiety" about an African uprising, and hostility was specifically directed at

Christian Africans and the Paramount Chief, who respectively represented the new and the old forms of African independence. Coupled with the fear and hostility was a strong determination to impose exemplary punishments which would "instil a proper respect for the white man" (commander of colonial troops). The perpetration by colonial troops of what would today be considered atrocities, and what was even then criticised as such, was justified on the grounds of the alleged barbarism of the victims. Thus dum-dum bullets were stockpiled in anticipation of the disturbances because of their greater stopping power against "members of savage races who it must be remembered are not creatures of nerves" (Governor). The protection of white women and children from barbarous attacks which never materialised was one of the justifications for punitive operations which included the flogging of African women and children. The response of the authorities to the danger apprehended went far beyond rationally based legal or military requirements. As against a total of 24 whites killed, some 3,000 to 4,000 Africans were shot dead, including many unarmed men lying on the ground and fugitives hiding in trees. A further 700 Africans had their backs 'lashed to ribbons', while a total of 4,700 sentences including lashings were inflicted before the Government called a halt to punishments. Africans were also publicly shot after brief courtsmartial, and several were hanged for murder after conviction by a jury (though a white man who during that period had admitted castrating an African was acquitted by a jury).

When Winston Churchill, then Under-Secretary for Colonial Affairs, was asked to authorise the striking of an Imperial medal for whites who had died in action, he wrote sardonically that he would hesitate to press an Imperial medal upon the survivors of the dozen men, four or five of whom had even died in battle, in view of the distaste which the Colony had so strongly evinced for outside interference of all kinds. M. K. Gandhi, who accompanied the Colonial forces as an ambulanceman, was even more scathing. "This was no war", he wrote in his autobiography "but a manhunt. . . . To hear every morning reports of the soldiers' rifles exploding like crackers in innocent hamlets . . . was a trial." Amongst the wounded African prisoners whom he treated were a number of men who had been detained as suspects and flogged on the order of the general in command, a prominent Natal farmer; white medical officers refused to attend to the festering wounds which had resulted from the whippings, and when Gandhi began to clean and bandage them he was nearly pulled away by white

volunteer soldiers "who became enraged and poured unspeakable abuse on the Zulus".

Police and military historians writing some years after the event recorded that many of the colonial troops regretted the slaughter, even though they recognised its value in shortening hostilities. Some suffered unpleasant psychological effects from shooting men at close range, and at least one was haunted by the experience for a long time. Nevertheless, it was "known that on many of the farms the natives were beginning to turn sour, when the news of a heavy repulse to the rebels brought them to their senses", and in the years since, the Africans of Natal had been "more tractable and peaceably inclined than ever before".

Disarmament of the tribes and the stern repression of rebellion should therefore be seen not simply as the expression of pathological drives, but as part and parcel of a disciplinary process whereby Africans were reminded of their subordination to the whites in what was becoming an increasingly interdependent society. The extensive shooting of rebels was not as some critics maintained part of an exterminatory process whereby white settlers attempted to clear the land of indigenous peoples. Extermination as a deliberate end had been pursued in an earlier period against the San hunting groups, whose mode of life and culture, like that of the indigenes of Australia and North America, revolved so completely around hunting and collecting, that they could not easily be impressed into service as farm labourers or herders. Being unable to postpone the killing of animals for meat, these San hunters could not regard cattle as breeding animals, and when their supplies of game diminished, they began to attack the farmers' stock for food. This in turn led the farmers to hunt them in special exterminatory commandos, more or less as if they were animals themselves; frequently they were in fact likened to vermin which had to be wiped out. The first true 'bitter-enders' in South Africa, the San were almost entirely annihilated. Thus in 1957 it was estimated that only 20 survived in South Africa, although over 50,000 lived in the semi-desert of South West Africa and Bechuanaland. By contrast, the 'rough handling' to which rebellious African tribesmen were subjected, was not intended primarily to reduce their numbers, but rather to act as a punishment. Its objective was disciplinary rather than exterminatory, and related to the process whereby independent African farmers were converted into subservient African labourers.

The placing of white dominance on a secure foundation was not

followed by any reduction in hostility towards Africans. On the contrary, it eliminated the practice of dividing Africans into loyalists and enemies, and converted them all into a homogeneous group of 'natives'. The ideal African in the minds of most whites was one who remained sufficiently tribal in culture to justify his exclusion from citizenship, yet became sufficiently involved in modern society to be able to serve the white man cheerfully, obediently and well. Any African who departed from this stereotype became an object of ridicule and censure, such as was expressed by an English-speaking member of the Transvaal Legislature, who complained that an African wearing a new suit or riding a bicycle was 'advanced'.

The end of the nineteenth century saw the achievement of colonial self-government coincide with the final destruction of tribal power and the sudden development of industrial communities at Kimberley and on the Rand. The era of rapid industrial expansion was about to begin, and the colonial-type relationships which had formerly existed in the frontier regions were now carried into the towns. Africans were no longer viewed primarily as an immature but perfectible section of humanity to be Christianised and traded with, nor as competitors for possession of land and cattle, but as a mass of potential labourers to be lured, recruited and cajoled away from their land on to white-owned mines, railways and farms. "They are people whom we have to teach", said Sir Sidney Shippard, formerly a Cape judge and later a leading administrator, "to teach them the dignity of labour." If properly used, he continued, they supplied the whites with a magnificent source of labour, and his idea was that that was the best thing that could be done with them. Any idea of imagining that they could be on an equality with whites was absurd, they were thousands of years behind. "But today they should be treated with humanity and justice, and they are most useful in supplying us with labour, at any rate such labour as the white man can hardly perform in such a climate." The development of the goldfields on the Rand intensified the need for Africans to learn the dignity of labour. The Royal Colonial Institute, which once had been dominated by explorers, administrators, and philanthropists, one of whom had asked what dignity there was in forced labour, now heard one of its Fellows report after a tour of South Africa that 200,000 Africans were needed on the mines and only 50,000 had volunteered the rest would have to be compelled to work, otherwise Chinese labour would have to be imported. He agreed with the colonists that the South African native "was altogether an inferior animal to the

white man", he was treated too leniently, and was insolent, lazy and immoral; philanthropic sentiment in Britain had influenced legislation permitting liberties to Africans which was fast making life for white women and children well-nigh intolerable. He had personally had numerous experiences of the increasing insolence of the Africans and "for a very long time yet there must be one law for the white man and another for the black. At present," he concluded, "the law is in favour of the black man. The position must be reversed until at least he becomes more industrious, cleanly and moral."

With the decline in the authority of the chiefs and the massive involvement of Africans in the white-run industrial-agrarian economy, new kinds of African leaders began to emerge, men who could guide their compatriots along the highways and byways of the developing multi-racial society. Many of these men were mission-trained clerks, teachers, missionaries and journalists, others were industrial workers who had learnt through bitter trial and error how to adapt to urban life; all had acquired skills not imparted by ordinary tribal education. Although the Cape Colonial educational system was heavily weighted in favour of the whites, the literacy rates in 1894 being approximately 65 per cent for nearly 400,000 whites, 20 per cent for 300,000 coloured people and 5 per cent for 800,000 Africans, there were nevertheless tens of thousands of Africans officially regarded as literate and thousands who qualified as voters for the Cape Parliament. The novelist, Anthony Trollope, described how even in the Free State in the 1870s he had come across an African chief who had the gait of a European and dressed like a European, with a watch and chain at his waistcoat, a round flat-topped hat, and cord trousers; inside the chief's hut was a large iron double bedstead with mattress which he was sure had come from Mr Heal's establishment in Tottenham Court Road (Sapena).

Modern-style education was almost entirely in the hands of the missions, and a number of promising pupils were sent abroad by the Churches for advanced education. The bulk of white colonists, however were never able to reconcile themselves to the existence of what they called 'the educated native'. Recipients of traditional tribal education were accused of being backward and superstitious, but when some of them adopted the more advanced superstitions of the whites and in addition became more learned than most of their detractors, they were received with even greater hostility. This antagonism was sometimes disguised as concern. A Cape educationist addressing the Royal Colonial

Institute in 1883 said that despite twenty-five years of educational legislation there were hardly any well-educated Africans in the Cape,

though certain men like Tiyo-Soga have gone as far as to be educated in Scotland and to take a Scotch degree, and more than this, marry a scotch wife — at least Tiyo-Soga did; but unfortunately the strain of doing all these great things is too heavy for even an exceptional Kafir. It is frequently the case that the too suddenly and too highly trained Kafirs fall victim to consumption and die an early death.

The one exception he was prepared to allow was John Jabavu, who was "very good at repeating a Greek noun", and who survived for three score years. Fifty years later Jabavu's son, the professor, found that prejudice against well-educated Africans had become more not less intense. "If I am stranded in the rural areas," he wrote in the 1930s, "I dare not go to a Boer farm speaking English and wearing boots and a collar without inviting expulsion with execration; but if I go bare-footed and collarless and in rags I shall enjoy the warmest hospitality." A leading member of the Cape Bar corroborated this view and indicated that it was not only Boer farmers who were hostile. White employers would rather have illiterate non-Christians working for them than educated Christian Africans, he said (Tamplin). A spokesman for the Cape Farmers Congress endorsed this opinion, saying that he did not think that the civilised native was a success. A mine manager declared that he would rather make a Kafir useful than learned.

Among the justifications which had earlier been advanced in support of annexation of tribal lands was that this would facilitate the spread of Christianity among the heathens. Yet by the end of the century African Christians were being regarded with greater enmity than were non-Christians, this despite the stress laid by some missionaries on the Gospel of work: "six days shalt thou labour". The Natal Directory for many years stated bluntly that the so-called 'Christian Kaffir' had been a failure, and according to a police historian the Zulu was not a success as a criminal either (Holt). As one writer recently remarked, the whites commonly believed that the education provided by missionaries simply produced lazy good-for-nothings, and that secular agents for change, especially a spell of work on the farms or mines or in the cities, had a far more wholesome effect (Marks). In support of this proposition she quoted the remarks of a Natal official, himself the son of a missionary, on the characteristics of Christian Africans: "They are comparatively few in number and very many of them . . . have by no means improved by having become civilised; they are as a rule less truthful, less honest,

and less trustworthy; they have as a rule adopted more of the vices and few of the virtues of the superior race; and are not an element that it should be desirable to intrude into the midst of a loyal native population."

The acquisition of new skills and the adoption of an urban style of life by hundreds of thousands and then by millions of Africans, further narrowed the cultural gap between black and white, but gave rise to the erection of official colour bars which had been deemed unnecessary in the Boer Republics and unconstitutional in the Cape. Once again, the more alike Africans and whites became, the more necessary was it felt to emphasise their differences. In the 1880s the Law Journal fought vigorously for the retention and extension of the voting rights possessed by Africans in the Cape ("they suffer the worst form of government, namely government by the representatives of others"). It constantly stressed how adaptable Africans were, as were all people, and warned that a policy of deprivation and oppression must lead inevitably to violent resistance (1884, 1887). Yet fifteen years later the Law Journal defended the earlier departure in the Cape from the principle of manhood suffrage on the grounds that it was impracticable in South Africa and would probably have led in time to the white vote being swamped by that of untutored savages (1902). In the following decades Africans were virtually excluded from mention in the pages of the Journal and when they reappeared in a series of sketches in the 1930s they did so not as claimants for citizenship but as foolish bumpkins bewildered by the sophisticated ways of the white men. At a time when Africans were being imprisoned in their scores of thousands for infractions of the pass and liquor laws, the Journal carried allegedly humorous articles with titles such as 'Npongo and his Sixpence' telling of the tribulations of stereotyped elderly tribesmen caught up in a formalised court system. In 1949 the editor of the Law Journal , who was later to become a Judge of Appeal, wrote of the disasters which threatened to arise from "the sudden contact of infant souls with the temptations of the white man's civilisation" (Hall). More recently the Law Journal has dropped all such generalised references to Africans, but in another legal publication the Journal's editors have rationalised differentiation in a more modern way. While stressing that differentiation can be justified only if based on objective and logical grounds, they allege that to treat all persons the same, adult and child, the sane and the insane, the raw savage and the civilised man, would be the height of injustice (1968).

The Administration of Justice in a Tribal Area—the Post-Conquest Position

As long ago as 1887 the Law Journal pointed out that the chiefs had become little more than government police. The effective repositories of power in the tribal areas were the white magistrates—'fathers of the people'—whose wide-ranging functions extended from hearing lawsuits to advising local tribesmen of the approach of a comet. The destructions of the tribal armies and the subsequent disarmament of the African people meant that the white-officered police had a monopoly of force in the tribal areas. The chiefs were no longer spokesmen for independent communities, but rather low-ranking officials in the governmental hierarchy, expected to do the bidding of the magistrates and the Native Affairs Department. As part of the administration they were answerable to the white government rather than to their fellow tribesmen, and their vestigial judicial authority was ultimately enforceable by the police rather than the general body of tribesmen. A retired Chief Magistrate of the Transkei declared explicitly that his instructions had been to undermine the authority of the chiefs.

As the tribal areas developed into politically quiescent reservoirs of migrant labour, the sons of great chiefs became minor functionaries receiving government stipends subject to good behaviour; the sons of warriors trekked to the towns and wielded pickaxes instead of spears and guns; and the sons of diviners invoked the spirits of the forefathers to aid men going to work rather than to war, and to win victories in court rather than on the battlefield.

The last major tribal area to lose its independence and be incorporated into the boundaries of what is today South Africa, was the region between the Cape and Natal known as Pondoland. The changing pattern of jurisprudence in the area has accordingly been relatively well-documented, and may usefully be referred to by way of example to illustrate the complex interrelationships which have developed between the ordinary and the tribal courts in South Africa's various tribal areas, as well as the changing relationships between the chiefs and the white Government.

Stereotypes are notoriously contradictory, and Africans have frequently been charged with being both over-litigious and lawless. Shortly after carrying an article which described in most enthusiastic terms the refinement and skill characteristic of tribal litigation, the

Cape Law Journal made its contribution to the campaign for the annexation of Pondoland by deploring the state of lawlessness which it claimed existed there. "It is unnecessary in these pages", it declared, "to depict any of the refinements of cruelty in which 'chiefs' and 'petty chiefs' so constantly indulge". It added that if a European desired to get a hearing at the chief's court he had first to present the chief with several bottles of spirits, an oblation which was "the indispensable preliminary, the equivalent of our stamp on a summons". A few years later troops were massed upon the border; the Cape Prime Minister, Cecil John Rhodes, demonstrated the efficacy of a Maxim-gun, and the Pondo chiefs capitulated without rattling a spear. Though this bloodless annexation was widely attributed to the charisma of Rhodes, Innes observed that the persuasive power of the machine-gun was great, and the Law Journal claimed that the example of justice being done in the neighbouring Circuit court was decisive. Without an escort the judge had calmly gone on with his work, and "fortunately the legal profession and the public were spared the pain of realising that a vacancy on the bench had been created as a consequence of (his) capture and massacre . . . There can be no doubt that it is precisely this cool sangfroid and indifference to any suggestion of danger, which appeals most strongly to the minds of native people, as they do to the minds of all nationalities." The Journal pointed out that during the previous few years it had been a common thing to see Pondo Councillors crowding the Circuit court and witnessing the conviction and sentence by colonial judges of their own people for crimes committed within the colonial border. ". . . It is gratifying to reflect that in great measure the present happy consummation is the result of the faithful discharge of their duties by the magistrates and judges of this country" (1894).

Like other annexed territories, Pondoland was placed under the aegis of the Cape Native Affairs Department. The chiefs were not deposed, but, after the pattern of the rest of the Transkei, converted into low-level government functionaries. From a formal point of view there was no change in their relationship with their tribesmen, but in substance they were now as much representatives of white authority as of their own people. In particular, control of armed force passed from their hands into the hands of white police and magistrates. Although the tribal courts continued to hear a large number of cases, particularly those relating to family disputes, the extension of the Circuit court area to Pondoland and the division of the territory into magistracies

meant that overriding judicial authority lay with the white authorities outside of the tribal system.

Not all the chiefs submitted tamely to the new regime, and Paramount Chief Sigcau was eventually placed by a proclamation of the Governor in indefinite detention for obstructing a magistrate in the course of duty. Acting on the legal advice of a local white attorney, Sigcau "elected to avail himself of his rights as a British subject" and appeal for liberty to the Supreme Court. The Cape Attorney-General opposed the application, for which he was criticised by the Law Journal , which declared that he should have been only too pleased that a troublesome native chief had demonstrated his submission to the laws and tribunals of the land. On the other hand Chief Justice de Villiers "worthily maintained the best traditions of judicial office"; in a landmark judgement he forthwith ordered the release of Sigcau, and emphasised the civil court's duty to administer the laws without fear, favour or prejudice. Holding that the proclamation was ultra vires because it did not purport to be a general law but was aimed at a particular person, de Villiers said:

to my mind it is a good symptom if a native of this country applies to the Supreme Court for redress . . . but I hope that his advisers will tell him this, that although this Court is open to him when an injustice has been done to him, . . . if it be made known to this Court that he has been guilty of transgressing the law, just as much as the Court would support him in the one case, the heavy hand of the law will be laid upon him in the other (1895).

This was the bargain being offered in the Cape to the conquered African people. They must lay down their assegais and guns and submit to the authority of the whites; in return they would have full access to the courts and the right to demand that they be treated according to law. Although they had no direct say in the enactment of the laws whereby they were judged, a section of their community could qualify for the franchise and thereby influence the selection of legislators. (The limited non-racial franchise was not simply a concession to liberal ideology—black and brown voters helped to counterbalance the numerical preponderance of Afrikaans-speaking whites in the Colony.) Similarly, although they were in practice excluded from the Bench and Bar, they could rely upon what were regarded as the strong traditions of the legal profession to ensure that justice was done to them.

As a result of the Sigcau judgement, the Cape Parliament placed

government of Africans by proclamation on a firmer statutory foundation, and also expressly provided that Africans deemed to be dangerous might be detained for three months without trial. In practice, however, proclamations were generally issued only after extensive consultation with elected and hereditary leaders of the African people, while the detention provision appears to have been used only once in thirty years.

Restricted though they were, civic rights for Africans in the Transkei must be regarded as generous when compared with those available to Africans elsewhere in the country. In Natal the assumption of Supreme Chief status by the Governor placed him at the head of an authoritarian administration that treated Africans as colonial subjects rather than as citizens. The Transvaal adopted a similar policy to that of Natal, but implemented it with less success, while the Orange Free State adopted no special policy for governing its African inhabitants save to regard them all as members of a servile group. It was only in 1927 that a consolidated scheme of African control was worked out for the whole of South Africa. The Native Administration Act of that year combined the Cape technique of rule by proclamation with the Natal doctrine of an absolutist Supreme Chief to produce a colonial-type structure of rule by the white Government acting through the decrees of the Governor-General. As the Minister of Justice explained when arguing in favour of the widest powers being granted to the Governor-General, such powers were needed not only to control Africans living in the tribal reserves, but "also . . . detribalised and exempted natives . . . who in many cases, are the principal agitators in South Africa today" (Tielman Roos). In keeping with the theory of tribal despotism-which has been said to have been as characteristic of tribal government as Fascism was of European government (Welsh)—the Governor-General was declared to be the Supreme Chief of all Africans and invested with the power to rule them by proclamation and banish them by edict. None of the sanctions which could have been used to check a tyrannous chief, however, could be applied against the avowedly dictatorial Governor-General, since the source of his power lay outside of the tribe. Nor could dissatisfied Africans bring constitutional pressure to bear upon him because their franchise rights were so limited that they had no chance of voting the Government out of power. As one commentator neatly observed, the powers of the Governor-General were more characteristic of colonial rule than of tribal society; when eventually chiefs were given autocratic powers of banishment which most of their forefathers had not possessed, the Supreme Chief doctrine

was seen to turn full circle and re-create chieftainship in its own image. Although various historians and jurists in South Africa have criticised the 1927 Act as being against the Rule of Law and granting powers similar to those possessed by Henry VIII, the trend has been for the scope of control by proclamation over Africans to be enlarged and for the limited supervision exercised by the courts to be curtailed.

On the judicial side, the 1927 Act created a segregated court system to hear civil cases in which Africans were the sole litigants, as well as to handle appeals from the tribal courts. African customary law was granted statutory recognition only when its social base had been considerably undermined, and the magistrates and Native Commissioners who constituted the new courts were given a judicial discretion as to whether in any particular case to apply Roman-Dutch or customary law. (In its modern form the latter is often referred to as 'Native law' or 'Bantu law'.) The chiefs continued to exercise limited local jurisdiction, but tribal litigants could appeal from their decisions to the local magistrate or else by-pass the chiefs and go straight to the local magistrate. Shortly after the passage of the Act, a correspondent wrote to the Law Journal that the bitter experience of innumerable Africans showed conclusively that very many chiefs were venal, biased and deliberately dishonest, and entirely lacking in judicial probity (1929). On the other hand the modern-minded Chief Luthuli, whose probity has never been questioned, wrote that he derived great pleasure from trying cases, and enjoyed both the debate and the reconciling of people at variance with each other. "I love the impact of mind upon mind", he added, "and I love thrashing things out in the attempt to get at the truth. The procedures of the court give these things orderliness, and getting at the truth is worthwhile for its own sake. The dying arts of exposition hold great attraction for me." The procedures in his court remained essentially unaltered from the days preceding the advent of the white man, with the exception that the modern tendency was to exclude witnesses when they were not giving evidence.

As far as Pondoland was concerned, the passage of the 1927 Act brought about few immediate changes. Because of its geographical position and late annexation the area attracted fewer mission stations, fewer schools and fewer stores than other parts of the reserves; it was also more fertile and less overcrowded. Accordingly, although thousands of men and women were forced each year by taxes, land shortage and a desire for manufactured goods to go as migrant labourers to white-owned centres of production, Pondoland was less affected by

white rule than any other portion of the Transkei. In 1936 a social anthropologist summarised the main changes which had been brought about in its administration of justice during 40 years of white rule (Hunter). The territory was divided into magistracies, she wrote, in each of which was a police prosecutor, a small detachment of police, and a jail, which was often the most conspicuous building in the village. The most revolutionary effect of the new criminal code—which was enforced by the ordinary courts against all Transkeians, black and white—was that it refused to entertain charges of witchcraft and sorcery. The practice of witchcraft was not punished but the imputation of witchcraft to another was treated as a serious offence, while those who killed alleged witches or sorcerers were tried for murder or culpable homicide. No figures were available for the number of civil cases heard in the traditional manner by the chief's courts, but 'a number' of such cases were tried before the district chief each week. These cases could be taken on appeal to the local magistrate, who would re-hear the matter de novo and not be bound in any way by the chief's verdict. 'School people' who wished to advance civil claims tended to go directly to the magistrate, and only the magistrate had jurisdiction to try criminal cases, while serious cases went to the Circuit court. Professional lawyers could not appear in the chief's courts, but there was enough other work to keep two attorneys in each of the seven magistracies. As throughout South Africa, all magistrates and judges were white.

In a foreword to the above mentioned study, J. C. Smuts, who claimed to have been 'in contact with the native mind' all his life, observed that the Pondo were unusually conservative and tenacious of their own culture. More recently an African political writer commented that the Pondo had been well known in South African history for their allegiance to authority, and that missionary-trained chiefs had led their people with vigour, and enhanced the institution of chieftainship; in two main parts of Pondoland, they had erected modem offices and conducted cases on the pattern of a magistrates' court, complete with officers, a dock, a fairly good method of recording proceedings and a proper system of filing (Mbeki).

Thus on the surface Pondoland would seem to have been the ideal territory for the reception of the new tribal authorities which the Government established in the 1950s pursuant to its policy of encouraging Africans to develop towards self-rule along traditional lines. Yet in fact the introduction of the new authorities and the concomitant extension of powers to the chiefs, brought about a greater social up-

heaval in the area than even annexation had done. The chiefs and headmen found it more difficult than ever to mediate between their tribesmen and white officials, and in eastern Pondoland their action began to arouse considerable opposition.

As their statutory power increased, so did their traditional authority wane and the consensual basis of the justice which they administered disintegrate. Their courts were regarded by their opponents as instruments of partiality and coercion rather than as the means of reconciling parties and asserting tribal unity; they enforced the white man's policies without the restraints which operated on the white man's courts, and their judgements generated rather than reduced social friction. By the end of 1960 civil war broke out in the territory; proGovernment chiefs and informers were forced to flee and many were killed. Defiant tribesmen set up their own authorities in opposition to those of the chiefs and Government, and established popular courts to replace the chiefs' courts.

According to the African political writer quoted earlier, justice, not money, became the criterion; people did not have to pay to have their cases heard. Those who were found guilty of 'greed or selfishness' were fined and the money was used later to pay for the defence of persons charged in the ordinary courts. Appeal from the popular courts lay to the 'Pondoland High Court' which sat on the hill where peasant resistance was organised. As area after area joined the opposition, informal courts were set up in each locality to administer popular justice. People withdrew their cases from the chiefs and magistrates' courts, and gladly paid their fines to the popular courts "knowing that their money was not going to be used to line the pockets of a corrupt tyranny. . ." The setting up of these peoples courts probably did more than anything else to show the peasants what a difference it would make to run their own machinery of administration in keeping with the democratic goals that they had set themselves (Mbeki).

Eventually the Government reasserted its authority by means of deploying thousands of specially trained military and para-military forces. Nearly 5,000 Africans were taken into custody and more than 2,000 put on trial; the authority of the chiefs' courts was re-established and their jurisdiction extended to punishing disobedience. It was at this stage that the full impact of the 1927 Act was first felt in Pondoland, because a special proclamation was issued to authorise the detention of suspects without trial, to compel Africans to obtain permission to hold meetings, and to empower certain chiefs to impose banishment orders

on tribesmen within their jurisdiction. This proclamation made the declaration of martial law or a state of emergency unnecessary, and facilitated the mass round-up for screening of all able-bodied men found in dissident areas. The magistrates' courts and the Circuit court were not entirely by-passed, but only brought into operation at a relatively late stage, when mass trials were held at which thousands of tribesmen were sentenced to imprisonment or fines and a score were sentenced to death.

The revolt in eastern Pondoland encouraged the Government to accelerate the programme of tribal self-rule and give it a more modern character. In 1963 the Transkei was granted a Legislative Assembly with power to pass laws over a wide number of topics ranging from agriculture to education. Two-thirds of its members were ex officio chiefs, its statutes were subject to veto in Pretoria, its budget was dependent on subventions from Pretoria, its civil service was dominated by officials 'on loan' from Pretoria, and it had no authority to override bans and proscriptions issued by Pretoria. Similarly, the far-reaching proclamation of 1960, which applied to the whole of the Transkei, was not repealed. Thus a team of American scholars who observed the Transkei constitutional experiment for two years concluded after an extended analysis that it was more likely to remind Africans of imposed restrictions than of widening opportunities (Carter, Karis and Stultz).

Nevertheless, the Transkei Assembly became the one place in South Africa where Africans could with some safety debate political questions, and a policy of gradual Africanisarion of the civil service was begun. After six years of office the Transkei Government pointed out proudly that the first black magistrates in South Africa had been appointed in the Transkei—one in Pondoland and one elsewhere. They were full district magistrates, save that they had no jurisdiction to handle matters in which white persons were litigants or accused. Some police stations and prisons were placed under African command, but subject to the control of the South African Police and Prison forces respectively, and not of the Transkei Government. A number of small villages were also zoned fully for African occupation, though the territory's only port was declared a 'white spot', and the capital remained largely in white hands.

In some areas, pro-Government chiefs were given squads of homeguards to protect them from attack. This was the first time in nearly a century that chiefs had been armed rather than disarmed by white authority, and it showed how central the maintenance of tribalism

had become to those who wished to perpetuate white control in southern Africa. Now it was Africans rather than whites who attacked the arming of tribesmen; one anti-Government spokesman remarked that as there were only two guards outside Buckingham Palace, he could not see why there should be more for pro-Government chiefs in the Transkei.

Just as the destruction of tribal independence had once been regarded as essential to the disciplining of Africans on the farms and in the towns, so now paradoxically the permitting of some political activity focusing on the chiefs was being offered as justification for the repression of Africans in the towns and on the farms. During the 1960s the tribal reserves were constituted into nine separate 'homelands' occupying about 13 per cent of South Africa's surface area and containing approximately 40 per cent of the country's African population. The Transkei was the largest and most compact, but its sub-subsistence economy compelled it to export labour in order to import no less than half its staple food requirements.

The revival of the chief's power has led to some decline in the authority of the magistrates. Provision has been made for appeals from the chief's courts to be heard by regional chief's tribunals rather than by magistrates, and the indications are that questions relating to tribal law and discipline will be determined exclusively by the chief's courts, while all other matters will continue to come before the magistrates.

A white professor of law at the tribal College for the North insisted recently that "it is not for the whites, who are for the time being teaching law to the Bantu, to determine their future law. This must be done by the Bantu themselves—not only by their trained lawyers but by Bantu from all walks of life" (R. Verloren van Themaat). Yet in the same article he reported that two experts, presumably white, had been appointed by the Government in 1961 to enquire into the future of African courts, both in the towns and in the tribal areas. By 1969 they had not yet made known the results of their researches, and had worked so quietly that none of their activities appeared to have leaked out to the press or penetrated to the pages of the many legal journals in South Africa. The issue was regarded as one for semi-secret investigation rather than public debate, and if Africans were consulted at all no indication of their attitudes found its way into the professor's survey. His main thesis was that there had been considerable growth in the number of African law students and a new willingness on the part of the Government to create institutions for the administration of justice

among Africans; accordingly it was imperative that legal education for Africans be adapted to train them "for the realities of practice in modern Bantu society". Whereas previously he had argued that all law students in South Africa, whether black or white, should study African customary law in a scientific way because of its importance to the legal profession as a whole, now he seemed to be contemplating a differential type of education for Africans to equip them for the practice of law in a separate court system. Legal education for white students has been dominated by the positivist approach, which has tended to accept the decisions of the courts as correct simply because they have been the decisions of the courts. Few attempts have been made by law faculties to introduce moral or sociological criteria into the evaluation of legal rules, and the only substantial critique has been that advanced by Afrikaner jurists who have used historical and nationalist jurisprudence in an attempt to expunge English influence from the common law. The professor of law being quoted here was himself the son and grandson of two of the most prominent of these Afrikaner jurists, and to some extent he can be seen as transferring their approach to the training of African law students. The 'realities' he had in mind were ideological and administrative rather than practical, inasmuch as they related to the tribal and separatist aspects of law affecting Africans, rather than to the more pressing problems that arose from their having the disabilities of being both poor and black. Granted there was sufficient realism, by which he meant acceptance of separate institutions, he thought that the possibilities for African advance in the field of the administration of justice were limitless; he could even envisage that one day in the Transkei, long after the rest of Africa had produced many outstanding jurists, there might even be an African judge.