Western Cape premier Helen Zille’s claim, and her feeble justifications for it, that South Africa has colonialism to thank for its independent judiciary and transport infrastructure is gravely ignorant about South Africa’s colonial past.
Our judicial system is an inheritance of the Dutch and English systems of law. Neither England nor Holland can claim the same robust system of judicial supremacy that we do. In the case of England, it was only during the era of Tony Blair that the judicial arm of the House of Lords was removed from Parliament, when the Supreme Court was established in 2009. The Dutch system, on the other hand, owing to its French origins from the Napoleonic era still recognises the sovereign power of Parliament and its judiciary lacks the power to strike down legislation on substantive grounds. By the time of Blair’s reforms and indeed the creation of the Supreme Court in England, Nelson Mandela had long broken new ground in this country – insisting not only on the independence of the judiciary, but also on its supremacy. If there are any parallels, our system resembles that of the United States. Colonialism hardly enters the equation. But Zille’s claims should be addressed frontally.
In this country, Mandela was not the first proponent of the necessity for the separation of powers doctrine and a supreme judiciary. The idea has a long and solid historical pedigree. The notion of an independent, fair and just legal system ‘which is not influenced by politics whatsoever’ first emerged in the writings, not of a lawyer, but a journalist: John Tengo Jabavu, the editor of the Xhosa newspaper, Imvo Zabantsundu, in the late 1890s. The circumstances under which this arose are worth examining briefly.
In the mid-19th century South Africa practiced a jury system. The jurisdiction of the native courts was severely restricted. However, Africans could not be appointed to sit on the juries. In his capacity as editor of the newspaper, Jabavu began receiving a steady flow of complaints about the lack of impartiality of the juries. Upon his own independent investigation, he discovered that it was true that Africans were more likely to receive harsher sentences where the complainants were White. His findings served as a rallying point around which he started advocating for a ‘an unbiased’ judiciary. To prevent the bias, he proposed, cases should be tried by judges ‘trained in the law’ and not take into account the race of the persons involved in the trial.
Jabavu’s writings in a marginal Xhosa newspaper were unsurprisingly ignored by the colonial government of the day. But they found fertile ground in the organisation which he did not found, but whose foundations he clearly influenced – the South African Native National Congress (as the ANC was then called).
The Congress’s founders included three lawyers, Alfred Mangena, Pixley ka Isaka Seme and George Montsioa. (Historians usually include Richard Msimang to this list, but this is wrong as he was not in South Africa when the ANC was launched in January 1912). Mangena, being a qualified barrister, had a clearer theoretical grounding for the argument in support of an unbiased judiciary. In his constitutional law course at Lincoln’s Inn in London, where he undertook his training to become a barrister between 1905 to 1909, Mangena took particular interest in Baron de Montesquieu, the French philosopher who is credited with the idea of trias politica – three arms of government. Personal liberties and freedom, Montesquieu believed, could only be guaranteed if the power of judging was separated and insulated from the legislative and executive power. Mangena was immediately attracted to the argument given his own experiences of political persecution in the colonial Cape and, indeed, the abuses of power by the Natal colonial government in 1906, when martial law was used to justify the deprivation of fair trial rights to the Bambatha warriors. As a result of Mangena’s influence, a central plank of the ANC in the early 20th century was the demand for an ‘unbiased’ judicial system and ‘equal’ application of the laws of the country without regard to ‘race or creed’.
This influence would also become pronounced in the ANC’s response to the 1910 South Africa Act and the 1913 Native Land Act. The response of Africans to both these pieces of legislation was to work within the ‘constitutional’ system. In 1923 African lawyers, working under the auspices of the Congress movement, produced the first draft ‘Bill of Rights for South Africa’. It called for some civil and political rights and emphasised equality before the law. A later document, the African Claims, which also included a Bill of Rights was produced in 1943 by several African lawyers, including Seme, Professor ZK Matthews, a legal academic and LT Mtimkulu, a practicing attorney. While this Bill of Rights included a more expansive list of rights such as freedom of the press, equitable distribution of land, free and compulsory education, it was equality before the law that constituted its central and organising principle.
The fundamentals of racial segregation in the late 19th century and early 20th century South Africa were undoubtedly laid down by Victorian politicians and their Cambridge and Oxford trained bureaucrats. But it was the colonial judges who cemented and institutionalised racism, in the areas of criminal law, labour, land and the very constitution of the Union of South Africa. Henry de Villiers, the Chief Justice of the Cape had a political career before going to the Bench, having been a Parliamentarian and the Attorney General in the Cape. He presided over the 1908 Convention which decided on the creation of the Union of South Africa where, Africans, despite their protest ,were excluded from all government of this country. His reward was to become the first Chief Justice of the Union of South Africa in 1911. In 1914, despite his position as Chief Justice, he accepted the acting appointment as Governor General of the Union. His legacy was carried over by Chief Justice James Rose Innes, who in a judgment delivered in 1907, ruled that evidence tendered by White witnesses was more reliable than that of Africans – without fail judges of the apartheid era slavishly followed this view. Innes was to preside over the legal system which consolidated pass laws, arbitrary expulsions from land and a compulsory labour system. His successors were no different. It would be too tedious to recount the many number of perverse judgments of the apartheid period. The point, however, is not to blemish all of these judges or to deny the fluidity of judicial decision-making of this period. It is to make the point that at least insofar as the ‘native question’ was concerned, there was clear consensus and explicit collaboration between the colonial judges and the political class.
At the coal-face Africans encountered the legal system either through the native courts or the magistrates’ courts. Both of these institutions were extensions of the executive. Colonial magistrates were government appointees, but they were also clothed with judicial power. It was African intellectuals who were pressing for the separation between the functions of judging and politics. They believed that only an impartial judiciary could guarantee their freedoms against the totalising colonial state.
Admittedly the path to modern constitutionalism has been uneven. It is so that the commitment of today’s ANC to constitutionalism and an independent judiciary has sometimes seemed doubtful. But, as Albie Sachs reminds us in his book, We the People, Oliver Tambo, the venerated president of the ANC, was deeply committed to constitutionalism as reflected in the 1989 Constitutional Guidelines of the ANC. Echoing the views of the earlier period of Jabavu, the Guidelines highlighted the centrality of the Constitution in transforming society: “the effects of centuries of racial domination and inequality must be overcome by constitutional provisions for corrective action”.
We are, of course, unable to draw a straight line between the works of the early African lawyers and today’s Constitution. But what cannot be denied is that their views provided the intellectual fulcrum and fountain from which later generations, including Mandela, drew on when they conceived and discussed today’s Constitution. The defence of constitutionalism, at the apex of which is an independent and impartial judiciary, is not a defence of the colonial legacy, but of the legacy of Mangena, Tambo and Mandela.
The second of Zille’s claims which draws a link between colonialism and the development of our transport infrastructure is equally distortive of history. My research into the history of black lawyers in this country led me to the offices of Mangena and Seme Solicitors in 1916 Pretoria. A criminal accused (referred to as ‘Johanes’ and in his 20s) who instructed Mangena had been charged with escape from ‘detention.’ As Mangena investigated the facts, a different, darker and sinister tale emerged. Johanes had originally been arrested under the pass laws, which were then operative in the Transvaal. While in detention, an unexpected message was delivered by the police. The government was looking for ‘gangs’ and ‘boys’ to work in its public works programmes. Johanes and a number of other detainees were taken under mobile police guard and made to work without their consent and for no compensation whatsoever in road construction projects in the Transvaal. He had tried to escape from this labour when he was arrested. Mangena discovered that this was in fact an official policy of the government. Other prisoners were deployed in the construction of government buildings and the rail network. Johanes was ultimately acquitted by the magistrate on a technicality. His release was possible because he consulted a lawyer – one of the only four African lawyers practicing in the Transvaal at the time.
It was an official policy of the colonial government to use prison labour for infrastructure. Large numbers of Xhosas imprisoned after the last frontier war in 1878 were taken to Cape Town and, on arrival, turned into unpaid labourers, in the development of the rail infrastructure. Government archives for the period between 1906 to 1909 contain clear evidence that the Secretary of Native Affairs, the Attorney General’s office and the Public Works Department resolved the ‘problem’ of the proliferation of prisons by Africans arrested for breaching pass laws by simply deploying them to road construction projects.
By 1915 the policy for the use of prison labour had been perfected. The use of prisoners sentenced by colonial courts to ‘hard labour’ became ubiquitous. The Department of Prisons introduced an innovation which included the ‘renting out’ of prisoners to other departments, such as the Public Works Department and the City Council of Pretoria. Invoices were generated by the Prisons department to be paid by the ‘client departments’, which contained annotations such as ‘prison gangs’ or ‘prison boys’. The African prisoners received no payment for their labour. A significant amount of the Transvaal’s transport infrastructure was built during this era. Even where no prison labour was used, Africans were ‘employed’ to work on road construction projects. Their conditions of employment were appalling and their wages extremely low. It is so that the engineering, official and managerial jobs were undertaken by White employees, some of whom had been seconded by the imperial government. But it is a complete distortion of history to fail to acknowledge the many hours, days and even years of toil spent by Africans in building the transport infrastructure of this country.
The project of building constitutionalism is evidently undergoing strain at the moment. And so is the reconstruction and redistribution project. Finding the country’s path back on track is a difficult task about which there will be legitimate disagreement. It is not my purpose to suggest how to return to the correct track. But it is wholly unhelpful to denigrate, marginalise and deny the histories of others.
Main Pic: Mr Thomas Mapikela, Dr W Rabusana, Rev. J. L. Dube, Mr Saul Msane, and Mr Sol Plaatjie, part of this delegation that went to Britain to contest the Native Land Act – Creative Commons
Take Two: John Tengo Jabavu and his son Davidson Don Tengo, around 1903, – Creative Commons
Third Eye: “We the People” by former Constitutional Court Judge Albie Sachs outlines the Constitutional commitment of the ANC and its late president, Oliver Tambo