I blush to think that His Majesty's representative signed a law like this, and signed it in such circumstances.
Rev. Amos Burnet
(Chairman and General Superintendent of
the Transvaal and Swazieland District,
Wesleyan Methodist Church).
Up to now we have dealt with the history of the Land Act from its commencement, and all the speeches and official documents we have mentioned hitherto say nothing about restricting Europeans in their ownership of land. And no matter what other principles one might read into the Act, it would be found that the principles underlying it were those of extending the "Free" State land laws throughout the Union — an extension by which Natives would be prohibited from investing their earnings in land whereon they could end their days in peace.
There seems to be good reason for believing that the Government were advised, by the legal advisers of the Crown, that the Natives' Land Bill would be class legislation of a kind that would never be allowed by His Majesty's Government. The originators of the Bill, however, were determined so to circumvent the constitutional quibble raised by the legal advisers as to seal our doom; and by adroitly manipulating its legal phrases, it seems that it was recasted in such a manner as to give it a semblance of a paper restriction on European encroachment on native rights. But class legislation the Act is, for whereas in his travels about South Africa, since the passing of this Act, the author has met many a native family with their stock, turned out by the Act upon the roads, he never met one white man so hounded by the same Act, and debarred from living where he pleased.
The squatters form a particular section of the community specifically affected by the Land Act; and there is no such person in South Africa as a white squatter. Although it is insistently affirmed that the law applies both to Europeans and Natives, the conclusion cannot be avoided that it is directed exclusively against the Native. This is the naked truth that turns all other explanations of the fact into mere shuffling and juggling. And the reader will find that in Section 11, at the end of the statute which is here reproduced (whether the omission of Europeans was a mistake of the Parliamentary draftsmen, or the printers, we know not), it is expressly stated that "this Act may be cited for all purposes as the NATIVES' Land Act, 1913." Who, then, will continue to argue that it was intended for Europeans as well?
No. 27, 1913.]
ACT TO Make further provision as to the purchase and leasing of Land by Natives and other Persons in the several parts of the Union and for other purposes in connection with the ownership and occupation of Land by Natives and other Persons.
Be it enacted by the King's Most Excellent Majesty, the Senate and the House of Assembly of the Union of South Africa, as follows: —
1. (1) From and after the commencement of this Act, land outside the scheduled native areas shall, until Parliament, acting upon the report of the commission appointed under this Act, shall have made other provision, be subjected to the following provisions, that is to say: —
Except with the approval of the Governor-General —
(a) a native shall not enter into any agreement or transaction
for the purchase, hire, or other acquisition from a person
other than a native, of any such land or of any right thereto,
interest therein, or servitude thereover; and
(b) a person other than a native shall not enter into
any agreement or transaction for the purchase, hire,
or other acquisition from a native of any such land
or of any right thereto, interest therein, or servitude thereover.
(2) From and after the commencement of this Act, no person other than a native shall purchase, hire or in any other manner whatever acquire any land in a scheduled native area or enter into any agreement or transaction for the purchase, hire or other acquisition, direct or indirect, of any such land or of any right thereto or interest therein or servitude thereover, except with the approval of the Governor-General.
(3) A statement showing the number of approvals granted by the Governor-General under sub-sections (1) and (2) of this section and giving the names and addresses of the persons to whom such approvals were granted, the reasons for granting the same, and the situation of the lands in respect of which they were granted, shall, within six weeks after the commencement of each ordinary session of Parliament, be laid upon the Tables of both Houses of Parliament.
(4) Every agreement or any other transaction whatever entered into in contravention of this section shall be null and void ab initio.
2. (1) As soon as may be after the commencement of this Act the Governor-General shall appoint a commission whose functions shall be to inquire and report —
(a) what areas should be set apart as areas within which natives shall not be permitted to acquire or hire land or interests in land;
(b) what areas should be set apart as areas within which persons other than natives shall not be permitted to acquire or hire land or interests in land.
The commission shall submit with any such report —
(i) descriptions of the boundaries of any area which it proposes should be so set apart; and
(ii) a map or maps showing every such area.
(2) The commission shall proceed with and complete its inquiry and present its reports and recommendations to the Minister within two years after the commencement of this Act, and may present INTERIM reports and recommendations: Provided that Parliament may by resolution extend (if necessary) the time for the completion of the commission's inquiry. All such reports and recommendations shall be laid by the Minister, as soon as possible after the receipt thereof, upon the Tables of both Houses of Parliament.
3. (1) The commission shall consist of not less than five persons, and if any member of the commission die or resign or, owing to absence or any other reason, is unable to act, his place shall be filled by the Governor-General.
(2) The commission may delegate to any of its members the carrying out of any part of an inquiry which under this Act it is appointed to hold and may appoint persons to assist it or to act as assessors thereto or with any members thereof delegated as aforesaid, and may regulate its own procedure.
(3) The reports and recommendations of the majority of the commission shall be deemed to be the reports and recommendations of the commission: Provided that any recommendations of any member who dissents from the majority of the commission shall, if signed by him, be included in any such report aforesaid.
(4) The commission or any member thereof or any person acting as assistant, or assessor, or secretary thereto may enter upon any land for the purposes of its inquiries and obtain thereon the information necessary to prosecute the inquiries. The commission shall without fee or other charge have access to the records and registers relating to land in any public office or in the office of any divisional council or other local authority.
4. (1) For the purposes of establishing any such area as is described in section TWO, the Governor-General may, out of moneys which Parliament may vote for the purpose, acquire any land or interest in land.
(2) In default of agreement with the owners of the land or the holders of interests therein the provisions of the law in force in the Province in which such land or interest in land is situate relating to the expropriation of land for public purposes shall apply and, if in any Province there be no such law, the provisions of Proclamation No. 5 of 1902 of the Transvaal and any amendment thereof shall mutatis mutandis apply.
5. (1) Any person who is a party to any attempted purchase, sale, hire or lease, or to any agreement or transaction which is in contravention of this Act or any regulation made thereunder shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred pounds or, in default of payment, to imprisonment with or without hard labour for a period not exceeding six months, and if the act constituting the offence be a continuing one, the offender shall be liable to a further fine not exceeding five pounds for every day which that act continues.
(2) In the event of such an offence being committed by a company, corporation, or other body of persons (not being a firm or partnership), every director, secretary, or manager of such company, corporation, or body who is within the Union shall be liable to prosecution and punishment and, in the event of any such offence being committed by a firm or partnership, every member of the firm or partnership who is within the Union shall be liable to prosecution and punishment.
6. In so far as the occupation by natives of land outside the scheduled native areas may be affected by this Act, the provisions thereof shall be construed as being in addition to and not in substitution for any law in force at the commencement thereof relating to such occupation; but in the event of a conflict between the provisions of this Act and the provisions of any such law, the provisions of this Act shall, save as is specially provided therein, prevail:
Provided that —
(a) nothing in any such law or in this Act shall be construed
as restricting the number of natives who, as farm labourers,
may reside on any farm in the Transvaal;
(b) in any proceedings for a contravention of this Act
the burden of proving that a native is a farm labourer
shall be upon the accused;
(c) until Parliament, acting upon the report of the said commission, has made other provision, no native resident on any farm in the Transvaal or Natal shall be liable to penalties or to be removed from such farm under any law, if at the commencement of this Act he or the head of his family is registered for taxation or other purposes in the department of Native Affairs as being resident on such farm, nor shall the owner of any such farm be liable to the penalties imposed by section FIVE in respect of the occupation of the land by such native; but nothing herein contained shall affect any right possessed by law by an owner or lessee of a farm to remove any native therefrom.
7. (1) Chapter XXXIV of the Orange Free State Law Book and Law No. 4 of 1895 of the Orange Free State shall remain of full force and effect, subject to the modifications and interpretations in this section provided, and sub-section (1) (a) of the next succeeding section shall not apply to the Orange Free State.
(2) Those heads of families, with their families, who are described in article TWENTY of Law No. 4 of 1895 of the Orange Free State shall in the circumstances described in that article be deemed to fall under the provisions of Ordinance No. 7 of 1904 of that Province or of any other law hereafter enacted amending or substituted for that Ordinance.
(3) Whenever in Chapter XXXIV of the Orange Free State Law Book the expressions "lease" and "leasing" are used, those expressions shall be construed as including or referring to an agreement or arrangement whereby a person, in consideration of his being permitted to occupy land, renders or promises to render to any person a share of the produce thereof, or any valuable consideration of any kind whatever other than his own labour or services or the labour or services of any of his family.
8. (1) Nothing in this Act contained shall be construed as, —
(a) preventing the continuation or renewal (until Parliament acting upon the report of the said commission has made other provision) of any agreement or arrangement lawfully entered into and in existence at the commencement of this Act which is a hiring or leasing of land as defined in this Act; or
(b) invalidating or affecting in any manner whatever any agreement or any other transaction for the purchase of land lawfully entered into prior to the commencement of this Act, or as prohibiting any person from purchasing at any sale held by order of a competent court any land which was hypothecated by a mortgage bond passed before the commencement of this Act; or
(c) prohibiting the acquisition at any time of land or interests in land by devolution or succession on death, whether under a will or on intestacy; or
(d) preventing the due registration in the proper deeds office
(whenever registration is necessary) of documents giving effect
to any such agreement, transaction, devolution or succession
as is in this section mentioned; or
(e) prohibiting any person from claiming, acquiring,
or holding any such servitude as under Chapter VII,
of the Irrigation and Conservation of Waters Act, 1912,
he is specially entitled to claim, acquire, or hold; or
(f) in any way altering the law in force at the commencement of this Act relating to the acquisition of rights to minerals, precious or base metals or precious stones; or
(g) applying to land within the limits in which a municipal council, town council, town board, village management board, or health committee or other local authority exercises jurisdiction; or
(h) applying to land held at the commencement of the Act by any society carrying on, with the approval of the Governor-General, educational or missionary work amongst natives; or
(i) prohibiting the acquisition by natives from any person whatever of land or interests in land in any township lawfully established prior to the commencement of this Act, provided it is a condition of the acquisition that no land or interest in land in such township has at any time been or shall in future be, transferred except to a native or coloured person; or
(j) permitting the alienation of land or its diversion from the purposes for which it was set apart if, under section ONE HUNDRED AND FORTY-SEVEN of the South African Act, 1909, or any other law, such land could not be alienated or so diverted except under the authority of an Act of Parliament; or
(k) in any way modifying the provisions of any law whereby mortgages of or charges over land may be created to secure advances out of public moneys for specific purposes mentioned in such law and the interest of such advances, or whereunder the mortgagee or person having the charge may enter and take possession of the land so mortgaged or charged except that in any sale of such land in accordance with such law the provisions of this Act shall be observed.
(2) Nothing in this Act contained which imposes restrictions upon the acquisition by any person of land or right thereto, interests therein, or servitudes thereover, shall be in force in the Province of the Cape of Good Hope, if and for so long as such person would, by such restrictions, be prevented from acquiring or holding a qualification whereunder he is or may become entitled to be registered as a voter at parliamentary elections in any electoral division in the said Province.
9. The Governor-General may make regulations for preventing the overcrowding of huts and other dwellings in the stadts, native villages and settlements and other places in which natives are congregated in areas not under the jurisdiction of any local authority, the sanitation of such places and for the maintenance of the health of the inhabitants thereof.
10. In this Act, unless inconsistent with the context, —
"scheduled native area" shall mean any area described in the Schedule to this Act;
"native" shall mean any person, male or female, who is a member of an aboriginal race or tribe of Africa; and shall further include any company or other body of persons, corporate or unincorporate, if the persons who have a controlling interest therein are natives;
"interest in land" shall include, in addition to other interest in land, the interest which a mortgagee of, or person having charge over, land acquires under a mortgage bond or charge;
"Minister" shall mean the Minister of Native Affairs;
"farm labourer" shall mean a native who resides on a farm and is bona fide, but not necessarily continuously employed by the owner or lessee thereof in domestic service or in farming operations:
Provided that —
(a) if such native reside on one farm and is employed on another farm of the same owner or lessee he shall be deemed to have resided, and to have been employed, on one and the same farm;
(b) such native shall not be deemed to be bona fide employed unless he renders ninety days' service at least in one calendar year on the farm occupied by the owner or lessee or on another farm of the owner or lessee and no rent is paid or valuable consideration of any kind, other than service, is given by him to the owner or lessee in respect of residence on such farm or farms.
A person shall be deemed for the purposes of this Act to hire land if, in consideration of his being permitted to occupy that land or any portion thereof —
(a) he pays or promises to pay to any person a rent in money; or
(b) he renders or promises to render to any person a share of the produce of that land, or any valuable consideration of any kind whatever other than his own labour or services or the labour or services of his family.
11. This Act may be cited for all purposes as the Natives' Land Act, 1913.
The foregoing result of a legislative jumble is "the law", and this law, like Alexander the coppersmith, "hath done us much harm". Mr. Sauer carried his Bill less by reason than by sheer force of numbers, and partly by promises which he afterwards broke. Among these broken promises was the definite assurance he gave Parliament that the Bill would be referred to the Select Committee on Native Affairs, so that the Natives, who are not represented in Parliament, their European friends and the Missionary bodies on behalf of the Natives, could be able at the proper time to appear before this committee and state any objection which they might have to the Bill. But when that time came, the Minister flatly refused to refer it to the committee. This change of front is easily explained, because the weight of evidence which could have been given before any Parliamentary committee would have imperilled the passage of the Bill.
As might have been expected, the debate on the Bill created the greatest alarm amongst the native population, for they had followed its course with the keenest interest. Nothing short of a declaration of war against them could have created a similar excitement, although the hope was entertained in some quarters, that a body of men like the Ministerialists in Parliament (a majority of whom are never happier than when attesting the Christian character of their race) would in course of days attend the Holy Communion, remember the 11th Commandment, and do unto others as they would that men should do unto them. Our people, in fact a number of them, said amongst themselves that even Dutchmen sing Psalms — all the Psalms, including the 24th; and, believing as they did that Dutchmen could have no other religion besides the one recommended in the New Testament and preached by the predikants of the Dutch Reformed Church, were prepared to commend their safety to the influence of that sweet and peaceable religion. However, some other Natives, remembering what took place before the South African war, took a different view of these religious incidents. Those Natives, especially of the old Republics, knew that the only dividing fence between the Transvaal Natives and complete slavery was the London Convention; they, therefore, now that the London Convention in fact had ceased to exist, had evil forebodings regarding the average Republican's treatment of the Natives, which was seldom influenced by religious scruples, and they did not hesitate to express their fears.
Personally we must say that if any one had told us at the beginning of 1913, that a majority of members of the Union Parliament were capable of passing a law like the Natives' Land Act, whose object is to prevent the Natives from ever rising above the position of servants to the whites, we would have regarded that person as a fit subject for the lunatic asylum. But the passing of that Act and its operation have rudely forced the fact upon us that the Union Parliament is capable of producing any measure that is subversive of native interests; and that the complete arrest of native progress is the object aimed at in their efforts to include the Protectorates in their Union. Thus we think that their sole reason for seeking to incorporate Basutoland, Swaziland and Bechuanaland is that, when they have definitely eliminated the Imperial factor from South Africa, as they are unmistakably trying to do, they may have a million more slaves than if the Protectorates were excluded.
In this connexion, the realization of the prophecy of an old Basuto became increasingly believable to us. It was to this effect, namely: "That the Imperial Government, after conquering the Boers, handed back to them their old Republics, and a nice little present in the shape of the Cape Colony and Natal — the two English Colonies. That the Boers are now ousting the Englishmen from the public service, and when they have finished with them, they will make a law declaring it a crime for a Native to live in South Africa, unless he is a servant in the employ of a Boer, and that from this it will be just one step to complete slavery." This is being realized, for to-day we have, extended throughout the Union of South Africa, a "Free" State law which makes it illegal for Natives to live on farms except as servants in the employ of Europeans. There is another "Free" State law, under which no Native may live in a municipal area or own property in urban localities. He can only live in town as a servant in the employ of a European. And if the followers of General Hertzog are permitted to dragoon the Union Government into enforcing "Free" State ideals against the Natives of the Union, as they have successfully done under the Natives' Land Act, it will only be a matter of time before we have a Natives' Urban Act enforced throughout South Africa. Then we will have the banner of slavery fully unfurled (of course, under another name) throughout the length and breadth of the land.
When the Natives' Land Bill was before Parliament, meetings were held in many villages and locations in protest against the Ministerial surrender to the Republicans, of which the Bill was the outcome. At the end of March, 1913, the Native National Congress met in Johannesburg, and there a deputation was appointed to go to Capetown and point out to the Government some, at least, of the harm that would follow legislation of the character mapped out in Parliament on February 28 when the Land Act was first announced. They were to urge that such a measure would be exploitation of the cruelest kind, that it would not only interfere with the economic independence of the Natives, but would reduce them for ever to a state of serfdom, and degrade them as nothing has done since slavery was abolished at the Cape. Missionaries also, and European friends of the Natives, did not sit still. Resolution after resolution, telegraphic and other representations, were made to Mr. Sauer, from meetings in various parts of the country, counselling prudence. Even such societies as the Transvaal Landowners, who had long been crying for a measure to separate whites from blacks, and vice versa, urged that the Bill should not be passed during the same session in which it was introduced, that the country should be given an opportunity to digest it, in order, if necessary, to suggest amendments. The Missionary bodies, too, represent a following of Natives numbering hundreds of thousands of souls, on whose behalf they pleaded for justice. These bodies urged that before passing a law, prohibiting the sale and lease of land to Natives, and expelling squatters from their homes, the Government should provide locations to which the evicted Natives could go. But all these representations made no impression upon the Government, who, instead, preferred to act upon the recommendation of thirteen diminutive petitions (signed in all by 304 Dutchmen in favour of the Bill) [One of these thirteen petitions had only four signatures, which was but one better than that of the Tooley Street tailors.] than to be guided by the overwhelming weight of public opinion that was against its passage. Thus it became clear that the Native's position in his own country was not an enviable one, for once a law was made prohibiting the sale of landed property to Natives, it would be almost impossible to get a South African Parliament to amend it.
The Government, which at the beginning assured Parliament of their humane intentions, proceeded to delete the mildest clauses of the measure and to insert some very harsh ones; and almost each time that the Bill came before the House, one or two fresh drastic clauses were added. But it is comforting to note that even Parliament was not entirely satisfied with this, its heroic piece of legislation. Thus Mr. Meyler of Natal did, as only a lawyer could with a view to recasting the Bill, some very useful work in pointing out the possible harm with which the Bill was fraught. We wish that his clever speeches and observations (much of which have come true), might yet be sifted out of the big Parliamentary Reports, and published in a concise little pamphlet.
Sir David Hunter, another member of Natal, expressed himself as follows: —
While every one seemed animated with a desire to do what was right and just to the Natives, there was a feeling that certain of the details of the measure required amendment. He was more than pleased when the Minister closed the debate by a speech in which he seemed to be willing to meet the wishes of those in the House who thought that amendment was required. He could not have imagined that the Bill would develop into the shape into which it had developed, and had he known that so great an alteration would take place in the general effect of the measure from what was foreshadowed by the hon. Minister when he had made that interesting speech on the second reading he (the speaker) could not have conscientiously voted for the second reading. He would have been better pleased had a resolution been taken not to bring in a Bill until the Commission had reported. That was the position he had taken up all through and he would much rather now that the matter should be dealt with in that way. If, however, the Bill was to be pressed through there should be guarantees in it which should allay all suspicion. Anything affecting the native people required to be done gradually and should be placed before them a long time before the change took place. He hoped there would yet be some steps taken to give them a greater sense of security. To give some idea of the feeling in the minds of the Natives he read a letter from a gentleman in Natal, largely interested in the Natives, which had expressed the opinion that the Natives stood uncompromisingly against any change in their present status until the Commission had reported. He hoped the hon. Minister would even yet endeavour to do something to meet their views.
Mr. C. H. Haggar (Roodepoort) said that from the point of those who had worked successfully in turning the uncivilized man into the civilized man the Bill was bound to be a failure. It was necessary not only to have legislation theoretically just, but also practically right and good. But there were many who felt that so far from the effect of that Bill being good it would be disastrous to a very large extent. The great sin which they had been committing was that they had always been legislating ahead of the people, and there had not been sufficient preparation for the changes which were proposed in that Bill; the Natives were not ready for it. The hon. member for Victoria West had said that there was a disposition in certain directions to repress the Natives. He (the speaker) believed that there was a feeling that white men had some divine right to the labour of the black, that the black people were to be hewers of wood and drawers of water, and he wanted to say that while men were obsessed with that feeling they would never be able to legislate fairly. They had no more divine right to the labour of the black people than they had to the labour of the white. To his mind the great point was, should their policy be one of repression or a policy of inspiration? They had inspired the Natives to a certain extent, but no sooner had they created an appetite than they had told the Natives they should go no further. Their policy was the policy of Tantalus. That Bill would create a feeling of insecurity in the minds of the Natives. There were those who said that if the Natives would not submit to dictation they should be wiped out. But that should not be their policy. They must cease the policy of repression and let it be one of wide inspiration.
But alas! these and similar pleadings had about as much effect upon the Ministerial steam-roller as the proverbial water on a duck's back. With a rush the Natives' Land Bill was dispatched from the Lower House to the Senate, adopted hurriedly by the Senate, returned to the Lower House, and went at the same pace to Government House, and there receiving the Governor-General's signature, it immediately became law. As regards the Governor-General's signature, His Excellency, if Ministers are to be believed, was ready to sign the Bill (or rather signified his intention of doing so) long before it was introduced into Parliament. This excited haste suggests grave misgivings as to the character of the Bill. Why all the hurry and scurry, and why the Governor-General's approval in advance? Other Bills are passed and approved by the Governor, yet they do not come into operation until some given day — the beginning of the next calendar year, or of the next financial year. But the Natives' Land Act became law and was operating as soon as it could be promulgated.
After desperately protesting, with individual members of Parliament and with Cabinet Ministers, and getting nothing for their pains, the delegates from the Native Congress wrote Lord Gladstone, from an office about two hundred yards distant from Government House, requesting His Excellency to withhold his assent to the Natives' Land Bill until the people mostly concerned (i.e. the Natives) had had a chance of making known to His Majesty the King their objection to the measure. His Excellency replied that such a course "was not within his constitutional functions." Thereby the die was cast, and the mandate went forth that the land laws of the Orange "Free" State, which is commonly known as "the Only Slave State", shall be the laws of the whole Union of South Africa. The worst feature in the case is the fact that, even with the Governments of the late Republics, the Presidents always had the power to exempt some Natives from the operation of those laws, and that prerogative had been liberally used by successive Presidents. Now, however, without a President, and with the prerogative of the King (by the exercise of which the evils of such a law could have been averted) disowned by the King's own Ministers on the spot, God in the heavens alone knows what will become of the hapless, because voteless, Natives, who are without a President, "without a King", and with a Governor-General without constitutional functions, under task-masters whose national traditions are to enslave the dark races.