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First published 2018
Publication © Penguin Random House 2018
Text © Tembeka Ngcukaitobi 2018
Cover photographs
Henry Sylvester Williams: Wikimedia Commons; Alfred Mangena: Museum Africa;
Richard Msimang: Historical Papers Research Archive, University of the Witwatersrand;
Pixley Seme: Swaziland National Archives; Ngcubu Poswayo: provided by Poswayo family;
George Montsioa: provided by Montsioa family
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Contents
Introduction
PART I: LAND
1. How the land was lost
PART II: LAWYERS
2. ‘Fair play and no favours’
3. ‘We don’t want to swamp the white man in Africa’
4. The ‘most gentlemanly’ Richard Msimang
5. ‘In all races, genius is like a spark’
6. The unintended legacy of King Leopold
PART III: LEGACIES
7. Visions of equality in a divided Union
8. The birth of constitutionalism
Acknowledgements
Notes
Index
Introduction
In the blazing heat of the Bloemfontein summer of 1943, black intellectuals,
acting under the aegis of the African National Congress (ANC), met to
deliberate the future of South Africa. Before them was the Atlantic Charter,
precursor to the United Nations Declaration of Human Rights. They
discussed how Africans might be accommodated in a new world order that
could follow in the wake of the imminent victory of the Allied forces in the
Second World War. From the discussions, the Africans’ Claims emerged.
This document served not only as a response to the Atlantic Charter, but also
included new normative principles to underpin an imagined South Africa that
belonged to all. The group of intellectuals included some of South Africa’s
first black lawyers. These lawyers were responsible for converting these
principles into a Bill of Rights containing basic civil liberties to be enjoyed
by all, regardless of race, class or origin. For nine decades, it passed from
generation to generation before it found expression in today’s South African
Constitution.
South Africa’s Constitution stands as a monument in the world. For Ruth
Bader Ginsburg, a judge of the Supreme Court of the United States of
America, it is not the Constitution of the United States of America that is a
model for the world, but the South African Constitution. The magnitude of its
vision and ambition is unprecedented. Coming after centuries of settler
violence, economic exploitation and apartheid racism, retribution is not its
animating theme. South Africa belongs to all, it proclaims. The state must
facilitate economic justice, the Constitution mandates. The judiciary must
protect the Bill of Rights, enforce its promises and monitor the conduct of the
government. Yet, despite the admiration of the world, many of the promises
contained in the Constitution remain a hollow hope. Millions continue to
starve, while a fortunate few enjoy the wealth of the country. Does South
Africa really belong to all? In this climate of economic exclusion, and social
and political marginalisation, where the winners take all, some question
whether the constitutional framework was in fact the correct response to
colonialism and apartheid. They ask whether the very idea of a Bill of Rights,
which protects individual liberties, is not animated by a fundamentally
Eurocentric mindset, one that is unsuited to the African landscape.
In this book I attempt a partial answer, showing that the idea of a Bill of
Rights had its origins in South Africa. Not only did the ideas germinate from
South African soil, they emanated from a group of black intellectuals and
legal practitioners at the beginning of the twentieth century. The idea of the
Bill of Rights was a negation of colonial violence. That black lawyers
conceived of it in an era of aggressive colonial expansion brings to the fore
the shifting uses of law, from its epicentre in Europe to the lands of the
colonised. Law was not always and exclusively an expression of colonial
oppression. Sometimes it was an antidote to it, as is true today. Whether law
can be an instrument of justice is debatable, with a singularly important factor
being the agency of the actors. In the period covered in this book, it was the
personal agency of the lawyers that determined whether law was an
instrument of oppression or its opposite. This is still the case today.
The Bill of Rights must be enforced by an independent and supreme
judiciary. Many argue that this principle, too, is rooted in the legal traditions
of Europe. It is indeed so that the fundamentals of racial segregation in late-
nineteenth- and early-twentieth-century South Africa were laid down by
Victorian politicians and their Cambridge- and Oxford-trained bureaucrats,
but it was the colonial judges who cemented and institutionalised racism.
Areas such as criminal law, the law of master and servant, the law of property
and the very constitution that flowed from the South Africa Act of 1909 were
manifestations of colonial power relations. Henry de Villiers, chief justice of
the Cape, had a political career before going to the bench, having served as a
parliamentarian and attorney-general at the Cape. He presided over the 1908
Convention which decided on the creation of the Union of South Africa,
where Africans, despite their protests, were excluded from government of the
country. His reward was to be made the first chief justice of the Union of
South Africa in 1911. Despite occupying this position, he accepted an acting
appointment as governor-general of the Union. His legacy was continued 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
Africans1 – a view generally held by judges of the apartheid era. Rose Innes
presided over a legal system that consolidated pass laws, arbitrary expulsions
from land and a compulsory labour system. His successors were no different,
and it would be too tedious to recount here their many perverse judgments.
The point is not to cast blame on these judges, or to assume a uniformity of
judicial opinion at the time. Instead, I seek to demonstrate that, at least
insofar as the ‘native question’ was concerned, there was clear consensus and
explicit collaboration between the colonial judges and the ruling elite.
Africans generally encountered the legal system either through the Native
Courts or the Magistrate’s 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
pressed for separation between judicial functions and politics. They believed
that only an impartial judicial branch could guarantee their freedoms against
the colonial state which sought total control over all aspects of black life.
Thus, in South Africa, the idea of a Bill of Rights enforced by an impartial
judiciary has a long and solid pedigree. It first emerged in the late 1890s in
the writings not of a lawyer, but a journalist: John Tengo Jabavu, editor of the
Eastern Cape newspaper Imvo Zabantsundu. The circumstances under which
this arose warrant a brief examination. In the mid-nineteenth century, when
the jurisdiction of the Native Courts was severely restricted, South Africa
used a jury system. However, Africans could not be appointed to sit on juries.
In his capacity as newspaper editor, Jabavu received 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 blacks 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
‘an unbiased’ judiciary. Accordingly, he proposed that cases be tried by
judges ‘trained in the law’, and that the race of persons involved in the trial
should not be taken into account.
Unsurprisingly, the ideas put forward by Jabavu in a marginal Eastern
Cape newspaper were ignored by the colonial government of the day. But
they found fertile ground in an organisation whose foundations he clearly
influenced – the South African Native National Congress (the SANNC, later
renamed the ANC). Its founders included three lawyers: Alfred Mangena,
Pixley ka Isaka Seme and George Montsioa. (Some historians incorrectly
include Richard Msimang in this list, but he was not in South Africa when the
organisation was launched in January 1912.) As a London-trained barrister,
Mangena had a clear theoretical understanding of the argument in support of
an unbiased judiciary. In his constitutional law course at Lincoln’s Inn, where
he undertook his training between 1905 and 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 judicial
power was separated and insulated from legislative and executive power.
Mangena was immediately attracted to the argument, given his own
experience of political persecution in the Cape, and indeed the abuse 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 ANC policy in the
early twentieth 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 South Africa Act of 1909 and the 1913 Natives 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 ANC, produced the ‘African Bill of Rights for South Africa’.2 It
contained a statement of five rights to be included in the Bill of Rights. The
Bantu inhabitants of the Union, it began, have ‘as human beings, the
indisputable right to a place of abode in this land of their fathers’. Africans,
as children of the soil, have a God-given right ‘to unrestricted ownership of
land in this, the land of their birth’. Yet Africans were not the only ones
inhabiting the land. So, ‘like the British subjects’, blacks have ‘the
inalienable right to the enjoyment of those British principles of “liberty of the
subject, justice and equality of all classes in the eyes of the law” that made
Great Britain one of the greatest powers’. Even as they made these demands,
the lawyers were not yet sure of their universal application. Their demand,
they explained, was for the application of a principle made famous by Cecil
John Rhodes, former prime minister of the Cape, for ‘equal rights for all
civilized men south of the Zambesi’, regardless of race, class, creed or origin.
The final statement of the Bill of Rights was for representation of blacks by
‘members of their own race in all the legislative bodies of the land, otherwise
there can be “no taxation without representation”.’ This Bill of Rights would
later serve as a galvanising, rallying point for further demands for inclusion
into the government of South Africa, and a share in the land. Right from
these early days of resistance, black legal intellectuals were concerned about
equality, justice, and a system of land allocation and administration informed
by legality and fairness.
Consequently, when the Africans’ Claims was produced, it included an
expansive Bill of Rights. The black lawyers who were part of its drafting
included Seme, a practising attorney in Johannesburg, Professor Z.K.
Matthews, a legal academic at the University College of Fort Hare, and
Lionel T. Mtimkulu, an attorney in Ngcobo, in the Eastern Cape.
Seme had been part of the founding generation of the ANC, being the
organiser of the conference of 1912, when the ANC was launched. His friend,
Mangena, who was the first black South African attorney to practise law in
South Africa, was elected as one of the vice-presidents to John Langalibalele
Dube. Mangena and Seme were inspired by the vision of Henry Sylvester
Williams, the founder of Pan-Africanism, who practised as the first black
advocate in the Cape from 1903 to 1905. George Montsioa, another attorney
who was a graduate of Lincoln’s Inn, was elected as recording secretary.
Though Msimang was not yet in the country when the ANC was formed,
upon his return late in 1912, he was thrust into the affairs of the ANC,
becoming treasurer and head of the constitutional drafting committee. The
pages that follow record the collective experiences of these lawyers and
explore the influences that animated them. As activists, they used the law as
an instrument against injustice. In an age of aggressive colonial expansion,
land dispossession and forced labour, they were not deterred from their goals.
Rather than resorting to law in spite of the military occupation of the colonial
era, they resorted to law because a military option was not available to them.
Though their impact continues to be felt in today’s South Africa, it is a
largely unexplored topic. The focus has been the law (and its absurdities)
during the apartheid era. However, this leaves a gap in our historical
understanding of human rights and their true origins. By focusing on these
lawyers, human rights – and constitutionalism – are restored to their rightful
place in our current discourse. Constitutionalism – meaning a system of
government according to laws that are fair and informed by principles of
justice – did not emerge as an alternative to political struggle. Instead,
constitutionalism is an integral part of South Africa’s political struggle. By
examining the lives of the lawyers who practised their profession in the
colonial era, before apartheid, we enrich our historical understanding; and in
a modern era fraught with the politics of power rather than principle, we also
broaden the intellectual basis of our engagement with human rights.
Furthersmore, it becomes clear that the unfinished struggle for land can only
take place through a framework of law.
By the time the 1943 conference was held, the ANC’s human rights
tradition was firmly established. Equality before the law constituted the
central, organising principle. The Bill of Rights itself was broader than the
original 1923 document. Representation was, however, still a point of
contention. The 1943 Bill of Rights called for the abolition of political
discrimination based on race, and the extension of the right to vote to all
adults, to provincial councils and other representative institutions. Judicial
institutions were of special significance to the politics of resistance, and the
Bill of Rights envisaged the conditions for their legitimacy to function as
arbiters. Freedom of the press was seen as important since the press
constituted a vital platform for the expression of subaltern perspectives. ‘The
right to own, buy, hire, or lease and occupy land’ was protected by law,
without racial restriction. Compulsory education was mentioned, as was
freedom of trade and occupation.
The Africans’ Claims has stood the test of time. As Albie Sachs reminds us
in We, the People,3 Oliver Tambo, the venerated president of the ANC, was
committed to constitutionalism. The 1989 Constitutional Guidelines of the
ANC also reflect this commitment.4 Echoing the views of the earlier period in
Africans’ Claims, the guidelines highlight the role of the Constitution in
transforming society: ‘the effects of centuries of racial domination and
inequality must be overcome by constitutional provisions for corrective
action’. While it is not possible to draw a straight line between the writings of
early African intellectuals and the present Constitution, the adoption of the
Freedom Charter in 1955,5 conceived by Z.K. Matthews, had a significant
impact, and was therefore a momentous occasion. Furthermore, it is clear that
the ideas of the first generation of black lawyers provide the intellectual basis
from which later generations could draw when imagining the kind of South
Africa they wanted for themselves. This still holds good today: if we are to
reimagine our present and imagine our future, we should start by reimagining
our past.
Part I of this book begins the task of reimagining the past by excavating its
remains from the ruins of Empire on the eastern frontier. The story of how
the land was lost there provides a useful entry point, illuminating the larger
political formation of South Africa. The eastern frontier provides a template
for understanding how ‘natives’ saw themselves in relation to the British
Empire. The emergent racial theories of social Darwinism, which gained
currency after the end of slavery, were first played out in that part of the
world by a man who believed in the supremacy of the white race, Sir George
