The Group Areas Act: a historical and legal reVlew

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The Group Areas Act: a historical and legal reVlew
Reproduced by Sabinet Gateway under licence granted by the Publisher (dated 2011)
_______________________ ARTICLES
The Group Areas Act:
a historical and legal
•
reVlew
___ I Omar, attorney, Ismail Omar and Co, Durban:_-
Historical
The land issue in so far as the indigenous African
people in South Africa were concerned, was settl~~ when their resistance succumbed primarily to
military defeats. However, the issue of land ownership by the small but thriving community of Indians, who came to South Africa by invitation and
inducement as free men, began to shape the modus operandi of dealing with people of colour.
Prior to the first laws enshrining the principle of
compulsory segregation, there were three laws that
contained the seeds of apartheid legislation namely:
1 The 1849 Grondwet l of the South African Republic provided that Africans were not allowed to
reside near town lands except with Volksraad
permission (art 29).
2 Volksraad Resolution 159 of 1855 provided
that non-burghers could not own fixed property
and coloured persons could not become burghers.
3 Volksraad Resolution 104 of 1871 provided
that no erfholder in any new village shall be
entitled to allow the congregating of coloured
persons on his erf except for employees.
4 Free State Ordinance 5 of 1876 dealing with
the right of coloureds, precluded them from owning property unless one parent of the person was
white.
In about 1881 when the first Indian settlers came
to the Transvaal, they were free from restrictions of
any kind.
In 1884 the Transvaal Chamber of Commerce
submitted a memorandum complaining about
trade competition with Europeans. Many other
memoranda followed.
In 1885 the Wragg Commission was appointed in
Natal and reported two years later that Indians had
become formidable rivals in trade. It also referred
to petitions from the Pietermaritzburg Chamber of
Commerce.
In 1885 the anti-Asiatic agitation, primarily in the
commercial field, resulted in the first formal group
areas legislation in the country, namely Law 3 of
1885 2 of the Transvaal, which provided that
1 Asiatics could not become citizens and were
consequently not entitled to the franchise nor
could they own fixed property;
2 they had to reside and trade in locations set
apart for them;
DE REBUS, JULY 1989
3 the government was empowered to set aside
locations.
Henceforth, Asiatics were dealt with on a different
fo~ting from other coloured persons; Law 3 of 1885
bemg an attempt to deal exhaustively with the
Asiatic problem (Essop and others v Rex 1909 TS
480).
The Transvaal legislation, however, had to be
approved by the British government in terms of the
London Convention of 1884.
The legislation was contrary to the provisions of
the London Convention 3 in that it denied Asiatics
the ri.ght to ~nter the Republic, travel and reside
therem, to hue or possess houses, factories and
shops and to trade in the RepubJic. 4 The British
governI?en~ was nevertheless prepared to sanction
the legIslatIon on grounds of sanitation provided
t~at Asiatics who were traders were made exempt.
S~n~e ~aw 3 of 1885, however, made no such
dlstmctlOn .as .regards traders, the Imperial Government of Bntam declared a dispute on the validity
of the legislation.
IOmar
IlIl1r(l/nisa) LLR(l/DW)
515
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ARTICLES
The dispute between the two governments was
consequently referred to arbitration by the Chief
Justice of the Orange Free State, Justice Melius de
Villiers in 1894.
In 1885, as a result of the agitation in the other
colonies, and in response to a petition, the Free
State Volksraad passed Ordinance 1 of 1885, bring·
ing the land ownership rights of Asiatics in line
with those of coloured persons.
In March 1888 a memorandum from Middelburg
complained about the first known instance of the
nominee system which by 1892 was already widely
prevalent. The nominee system is employed by a
"disqualified" person who uses a "qualified" person, either in an individual capacity or by means of
a company, as a front to obtain business or property
rights from which he is otherwise precluded on
the grounds of race.
In 1890 ch 33 of the Free State Law Book (which
was repealed in 1986) prohibited Asiatic settlement, or stay, for longer than two months, or the
right to own property, or from trading and farming.
Those Asiatics already settled in the Free State
Republic, despite pleas and petitions, were ordered to leave.
Act 11 of 1894 of the Cape Colony empowered,
inter alia, the East London Municipality to fix and
alter the limits within which it would not be lawful
for "natives and Asiatics" to reside. In effect it
could set aside a bazaar for Asiatics.
In 1895 the dispute between the British and Transvaal governments over Law 3 of 1885 was decided
by De Villiers CJ generally in favour of the Transvaal government.
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Also in 1895 the Transvaal government established
a commission to consider the Asiatic question. The
commission reported that the process of establishing locations was a time-consuming process in that
it involved surveying and setting aside such locations. But wherever locations had been established, the law should be strictly enforced. (By
now some towns prohibited Asiatics from walking
on footpaths and from using tram cars.)
By 1896 the Natal legislature deprived Indians of
their parliamentary vote.
In 1896 Transvaal Law 13 of 1887 dealing with
trading licenses was amended making it an offence
to act as a nominee in relation to the holding of a
trading licence on behalf of a disqualified person.
In 1897 the Natal Dealers Licences Act was passed
which allowed no right of appeal from town councils and boards to the supreme court and was
designed to weed out Indian trading licences.
In 1898 the Transvaal Gold Laws were passed in
terms of which no coloured persons could become
licence or stand holders in respect of shops,
houses or dwellings.
In 18985 and 1899 (GN 208/25-4-1899) notices
were published by the Transvaal government in
terms of which Asiatics had to move to locations by
1 July 1899.
In 1903 6 a Transvaal government notice
(GN 356/8-4-1903) announced the establishment
of Asiatic bazaars and the non-renewability of
licences outside these bazaars.
In 1904 two members of the Transvaal legislative
council called a "national convention" to discuss
the Asiatic question. It was attended by "delegates" from almost all parts of the country.
The resolutions urged the Transvaal government
to remove Asiatics to bazaars for trade and residence purposes.
In 1904 in the case of Habib Motan v Transvaal
Government 1904 TS 404 trade segregation was
ruled illegal, reversing the earlier 1888 (Ismael
Suleiman and Co v The Landdrost of Middelburg) 7 and 1898 (Tayob Hajee Mahomed Khan v
Government of the SAR 15 CLJ 291) judgments of
the Republican High Court.
Motan's case in effect stated that there was no
statutory prohibition against the occupation of
land by Asiatics.
Proclamation 264 of 1904 of the Transkeian Territories prohibited Asiatics from entering the Transkeian territories except under authority of a special
permit.
Ordinance 17 of 1905, however, attempted to
circumvent the supreme court decision in Motan's
case by providing the machinery for the setting
aside of bazaars or "other areas" exclUSively for
occupation by Asiatics.
By 1906 attempts had begun to expropriate the
Malay location, later known as Pageview, which
was predominantly Asiatic, and to move the inhabitants to a place thirteen miles from Johannesburg.
In 1908 two laws were passed by the Transvaal
Government which had considerable effect on the
trading rights of Asiatics. They were the Townships
Amendment Act 34 of 1908 and £:'0:; uaid Law Act
35 of 1908.
In 1908, two further attempts were made in Natal to
have bills adopted removing the rights of Asiatics
to hold trade licences.
DE REBUS, JULY 1989
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Bills AB5 of 1908 and AB6 of 1908 were, however,
disallowed by the Imperial Government.
I n terms of the Income and Land Assessment Act of
1908, the occupation of land as cultivators was
declared non-beneficial in respect of Asiatics and
Africans_ Section 34(2) disqualified "Europeans"
from claiming beneficial occupation of land if
such land was occupied solely by Africans or
Indians, unless such land was "not suitable for
European occupation"_
In 1909 the Clayton Commission in Natal concluded that the Indian was not desirable except as a
labourer but did not in the interest of the colony
recommend that indentured labour importation be
discontinued_ Natal Act 22 of 1909 was enacted as a
result of a threat by the Indian Government to stop
the emigration of further labourers unless the
licensing laws were relaxed_ The Act provided for
an appeal to the supreme court against refusals to
renew trade licences_ As a result of the concession
the Indian Government extended permission allowing emigration of labour to 1 July 1911 on
which date it finally ceased_
Prior to Union in 1910 Africans were entitled to
buy land anywhere in the Cape and Natal. In the
Orange Free State and Transvaal they were not
allowed to acquire land in freehold_
In 1913 the Land Act made the right of Africans to
buy and sell land outside "scheduled native areas"
subject to the approval of the governor-general.
This was hardly ever given_ The Land Act created
the basis for ethnically fragmented reserves_
In 1913 the Immigrants Regulation Act of the
Union Government was passed, restricting interprovincial movement of Asiatics_ The Act was defied by Mr M K Gandhi, the Indian leader (later to
become the Mahatma) which resulted in the
Smuts-Gandhi Agreement of 1914 and the subsequent enactment of the Indians Relief Act of 1914_
In 1919 a Select Committee was established in the
Transvaal to establish the position of Indian traders on proclaimed land and to investigate alleged
evasions of Law 3 of 1885 through the use of
companies. In 1919 the Transvaal Asiatic Land and
Trading Amendment Act was passed which offered
protection to businesses established prior to 1919
on proclaimed land and prohibited ownership of
land by Indian companies after 1919.
In 1920 the Lange Commission was appOinted. In
1921 the commission recommended, inter alia,
that compulsory segregation be rejected and that
local authorities be given powers to set aside wards
for residence of Asiatics on a system of voluntary
segregation. In 1924 the Class Areas Bill was
introduced following on the Lange recommendations but was not enacted because of a change in
government in the middle of that year.
In 1923 the Natives (Urban Areas) Act made provision for separate residential areas for Africans in
"white" cities with controls regulating the flow of
Africans from towns and reserves to the city.
In 1924 Interior Minister, the then Mr Patrick
Duncan, introduced the Class Areas Bill AB41/24
based on the recommendations of the Lange Commission's Report recommending that there should
be no compulsory segregation.
In 1924 a Natal Ordinance 19 of 1924, deprived
Indians of the municipal (borough) franchise, and
the validity of that provision was sustained by the
DE REBUS, JULY
1989
courts in Abraham v Durban Corporation 1926
BPD 356 and 1927 AD 444. Ordinance 3 of 1925
deprived Indians of their franchise with regard to
townships.
In 1925 Dr D F Malan, the new Interior Minister,
introduced the Areas Reservation and Immigration
and Registration Bill based on the previous Class
Areas Bill.
The bill was not proceeded with and in 1926 it was
reintroduced and referred to a select committee.
In 1926 a Round Table Conference between the
governments of South Africa and India was held. In
order to prejudice discussions at the conference,
the above bills were not proceeded with. The
conference resulted in the Cape Town Agreement
which provided for the Assisted-Emigration
Scheme and the abandoning of the Areas Reservation Bill.
In 1930 a parliamentary select committee was
appointed which resulted in the 1930 Bill that
became law as Act 35 of 1932, shorn of its drastic
group areas provisions in view of the impending
1932 Round Table Conference between the South
African and Indian governments. The protection
offered to businesses prior to 1919 was extended in
terms of this Act.
In 1933 the Indian Colonization Enquiry Committee was appointed pursuant to the Round Table
Conference of 1932.
In 1933 the Feetham Commission was appointed
to investigate the occu pation of proclaimed land in
the Transvaal. Its interim recommendation to create Indian islands in European areas was rejected.
In 1934 a commission of enquiry regarding the
Cape coloureds was appointed. It recommended
the establishment of separate townships for coloured persons.
Act 35 of 1935 was passed to further extend the
1919 protection offered to businesses.
In 1936 another select committee was appointed to
look at a bill embodying amendments to laws
suggested by the Feetham Commission. Also in
1936 the Land and Trust Act 18 of 1936 was passed
as a result of a report of the "Native Commission".
This Act created the "South African Native Trust"
which held land set aside for occupation of Africans and controlled the occupation and use of
such land. The Act also provided for the so-called
released areas which could be acquired by the
Trust for the use of African people.
In 1937 another select committee was appOinted to
consider two Private Members Bills emanating
from the Transvaal. They were, however, not proceeded with. These were the Provincial Legislative
Powers Bill and the Transvaal Asiatic Land Bill.
Act 32 of 1937 further extended the 1919 protection and empowered the minister to create a
special committee which was established in 1937
and which was to become the forerunner of the
Land Tenure Advisory Board.
In 1938 the Murray Commission was appointed to
enquire into and to report whether and to what
extent any law restricting or prohibiting the ownership, use or occupation of land by Asiatics was
being evaded in the Transvaal. Areas proclaimed
under the Gold Law were excluded since that
matter was being dealt with by another commission, namely the Feetham Commission.
The commission recommended, inter alia, that a
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ARTICLES
special department be established with an inspectorate and a detective branch to conduct investigations into acquisitions by Asiatics of ownership and
occupation of land_ This recommendation was
implemented in the Asiatic Land Tenure and
Indian Representation Act 28 of 1946_ A minority
report of the commission, recommending legislation restricting the rights of Asiatics and coloured
people to occupy land in the Transvaal, formed the
basis of the Pegging Acts of 1939 and 1943In 1939 the Urban Servitudes Bill was prepared but
not introduced. It provided for race servitudes to
be registered against title deeds in defined areas
on the basis of local option but subject to ministerial veto. Thus if three-quarters of the owners of
land in an area sought to have such a defined area
for the exclusive use of Europeans (or non-Europeans), they could do so by applying to the minister for "anti non-European" or "anti-European"
servitudes to be registered against all title deeds of
properties in such a defined area. The minister had
the right to allow or disallow such an application_
Thus all property in an area could be burdened by
race servitudes if 75% of the local land owners so
wished. (It is interesting to nme that in 1983 the
Strydom Committee recommended control by title
deed conditions and in 1987 the President's Council recommended the deregulation of areas on the
basis of local option.) The measures were opposed
by the government of India in an exchange of
cables with the governor-general and dropped by
the South African Government.
By 1939 coloured penetration in the Cape was
creating opposition amongst whites. The Cape
Municipal Congress had in that year resolved in
favour of segregated residential areas. Prime Minister General Hertzog made reference to proposed
legislation in this regard when he spelt out government policy in parliament on 23 March 1939 vis-avis the coloured people. He proposed to introduce
legislation which would empower public bodies,
when selling or letting land or buildings, to impose conditions which would limit the ownership
or occupation of such land or buildings to either
Europeans or non-Europeans and further to empower township boards to require the imposition
of such conditions.
His proposals led to mass demonstrations by the
coloured people in Cape Town.
In 1939 the Transvaal Pegging Act was passed as a
temporary measure which further extended the
1919 protection but also restricted the right of
occupation of land by Asiatics and coloureds in the
Transvaal.
In 1940 the first Broome Commission, known as
the Indian Penetration Commission, was appointed to investigate so-called penetration by Indians
into white areas. In 1942 it reported that since 1927
there were only 339 cases of penetration in the
Transvaal, 246 being trading and 93 residential.
The charge that there had been large-scale penetration of "white areas" by Indians was thus found
to be unsubstantiated. The commission also stated
that allegations of surrounding European properties being devalued as a result, had been made, but
had not been established by evidence.
Also in 1940 the Lawrence Committee comprising
members of the Borough of Durban and the Natal
Indian Association, was appointed. It failed to
518
report.
In 1943 the Second Broome Commission was
appointed to look into the question of Indian
penetration by individuals and companies in the
Borough of Durban. In the meantime the Trading
and Occupation of Land (Transvaal and Natal)
Restriction Act 35 of 1943, the Pegging Act of Natal
was passed, extending restrictions against Asiatic
occupation and ownership of land to Natal. The
Act made special provision for, inter alia, the
municipal area of Durban.
This Act was also a temporary measure to peg the
position pending the report of another commission, the Natal Indian Judicial Commission.
Also in 1943 the Natal Provincial Council appointed the Post-War Works Reconstruction Committee
and the Durban Corporation appointed the Committee on Post-War Development. Both committees recommended racial zoning for Europeans,
Indians, Africans and coloureds.
In 1944 other Natal municipalities began clamouring for an extension of the Pegging Act. Also in
1944 the Third Broome Commission was appointed [0 look at the entire Asiatic question in Natal. In
the same year two of its Indian members resigned.
Also in that year General Smuts and the Indian
leader, Mr A I Kajee, concluded a compromise in
what is known as the Pretoria Agreement which
sought to control changes in the racial character of
residential property by licensing through a multiracial board. General Smuts instructed the province of Natal to prepare an ordinance implementing the terms of the Pretoria Agreement.
In consequence the 1944 Natal Occupational Control Ordinance was drafted and referred to a select
committee of the provincial council. The select
committee, in an unusual move, produced a new
draft which went far beyond the agreed limits of
the Pre[Oria Agreement. This led to the Residential
Property Occupation Control Ordinance of 1944
being passed. Instead of confining itself to residential property, the Ordinance, contrary to the
spirit of the Pretoria Agreement, brought within its
orbit restrictions to trade and agriculture as well.
Its provisions were extended to the entire province
instead of Durban itself.
The governor-general refused his consent on the
ground that the Ordinance was ultra vires. As a
result of the stalemate, General Smuts as Prime
Minister declared the Pretoria Agreement dead.
In 1945 the "third Broome Commission (appointed
on 17 March 1944) fdt that it could not continue
with its work as a result of the Indian members of
the commission having resigned and the Natal
Indian Congress having passed a resolution calling
upon Indians to refuse to co-operate with [he
commission. It submitted an interim report calling
for parliamentary representation for Indians on a
common voters roll. The recommendations were
criticized in particular by the white media.
In 1946 the Asiatic Land Tenure and Indian Representation Act was passed, offering representation
on the one hand and compulsory group areas on
the other. The Act was referred to by the Indian
community as the Ghetto Act. They rejected representation on those terms.
In 1948 the National Party government on coming
into power appointed two more committees; the
Asiatic Land Tenure Laws Amendment CommitDE REBUS, JULY 1989
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ARTICLES
tees; one for Natal and the other for Transvaal.
A JOiIll IIllerim Report was submitted to the government in March 1949. A draft bill attached to the
report became Act 53 of 1949. A final report was
submitted in April 1950. The Natal committee
considered agitation, including that from Durban
Corporation, for the inclusion of coloureds so as to
bring them for the first time within the purview of
proposed legislation. There were penetrations by
coloureds in Wentworth which was controlled by
title deed conditions that provided that no person
could own or occupy unless he was fifteensixteenths European.
The final report of the Joint Committee recommended, inter alia,
• the replacement of Act 28 of 1946 by a comprehensive Act which should apply throughout
the then Union of South Africa;
• that the population of South Africa should be
classified into racial groups for purposes of the
proposed legislation;
• that exclusive areas should be established for
each racial group;
• that a certain measure of local self-government
be given to members of the group concerned
in such areas subject to the supervision of
neighbouring European local authorities;
• that the group areas should be small relative to
the whole of the country and the rest of the
country should then become a controlled area
in order to curb movement outside group
areas;
• that suitable measures to curb the "nominee
system" be incorporated in the proposed legislation;
• the establishment of a land tenure advisory
board, its membership being confined to Europeans;
• that measures aimed at curbing Asiatic traders
from trading in rural areas carrying large African populations be introduced. This could be
achieved by the creation of "defined" areas.
Traders in such "defined" areas would have to
apply for permits.
In 1950 the net was cast countrywide under the
blanket sweep of the Group Areas Act. This was to
become a notorious piece of legislation worldwide.
Legal
The principle of the Act
The principle of the Group Areas Act is the involuntary segregation of the races in South Africa, on
the basis of colour (and not culture) by statutory
compulsion (implying enforcement by legal sanction).
According to the report of the Strydom Committee
(1983), however, the concept of a separation of the
population groups by legal coercion was a matter
of (government) policy, a policy which acknowledged and provided protection of a "fundamental
principle of our law", namely
"the right of self-determination of population groups
DE REBUS, JULY 1989
to fulfil their calling which postulates the retention
and development of an own identity and cultural
distinctiveness" .
With respect, it is submitted that the right of selfdetermination is a political-constitutional issue and one
that should be a matter for expression by the people
affected thereby and not by the imposition of a concept
defined by others on their behalf. If people of colour
had an effective right of political or constitutional reo
dress, the Group Areas Act would never have seen the
I ight of day. It is su bmitted that the history of the Act
negatives tbe contention of the authors of the Strydom
Report.
Criticism of the principle
1 The principle is not based on legal principles
found in our common-law heritage of RomanDutch law.
2 The law is a creature of statute and, therefore,
the principle is a statutory one.
3 The principle is a contravention of the common-law principles of equity, justice, dignity of the
individual, freedom of the individual, freedom to
acquire property, freedom of movement, equality
before the law, the principle of reasonable proportionality of restrictions necessary in order to safeguard the rights of others,S freedom of lawful
economic transaction and the free enterprise principle.
4 The principle of land expropriation on
grounds of political ideology (as against public
utility)9 is a feature of Marxist, and not Westerndemocratic, systems.
5 The principle may well be contI-a bonos mores;
contrary to the (broad) public norm.
6 The principle has no true overall constitutionallegitimacy since it is not accepted by a large pan
of the population which is denied a constitutional
right of redress.
7 The enactment of the principle has had the
result of making criminals of people who wish to
live in residences freely chosen by themselves.
Moreover, the prohibition is based purely on their
race not, for example, their conduct. The basis of
the crime lies not in the act but in the racial
identity of the actor.
8 The principle of the Act is incompatible with
the common-law principles of "geregtigheid, billikheid en redelikheid" 10 (justice and fairplay). If
these common-law rights were not superceded by
statute, or if the statute had allowed the testing
right against common-law principles, then the
principle would hardly have survived.
9 The prinCiple transgresses a number of articles
of the Universal Declaration of Rights.
10 The principle transgresses fundamental principles of democracy, namely justice, liberty and
equality.
Distinction between the 'principle'
and the 'application' of the Act
In recent years, and in response to the strong
criticism levelled against the Group Areas Act, a
distinction has been drawn between the "princi519
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ARTICLES
pie" governing the Act and the manner of its
"application". Criticism of the Act is then rebutted
by the argument that whilst the "principle" of
equitable segregation is not improper or does not
discriminate per se, the manner in which the Act
had been applied (or misapplied) is what has
caused untold suffering and hardship.
This distinction first appeared in the Report of the
President's Council on the Group Areas Act
PCl/1981 (paras 9.B and 10.B.l).
The Second Report of the Joint Committee of the
President's Council (PC 2/1982) makes reference
to the statements of the then Minister of the
Interior in introducing the first Group Areas Bill in
parliament concerning the object of the proposed
legislation. The stated object on which the principle depends was to eliminate friction between the
races by the "fair, equitable and humane social
separation of the races". The report then goes on
to equate the principle of assigning parts of territory to the various population groups as a "national
objective". The principle in this report is then
defined as the "segregation of communities/
groups by statutory compulsion" as embodied in
the Group Areas Act. Mention is made of the fact
that the principle is unacceptable to some members of the committee (paras 3, 6 and 7).
The Strydom Committee Report (1983) also all udes to this distinction when it recommended
changes to the manner of application of the Act bu t
not in the principle itself (para 42):
"Taking everything into account the committee is of
the opinion that the principle of the Act should be
retained but with a new political dispensation for
whites, coloureds and Indians imminent, the question arises whether possibly another and more suitable form of legal coercion can be found to replace
the Group Areas Act whilst preserving residential
separation. "
The Report ofthe President's Council (PC 4/1987)
drew the first formal distinction between principle
and application. In referring to the above quotation from the Strydom Committee Report, the
President's Council Report at para 4.44 states:
"The Strydom Committee distinguished between the
principle and the application of the Act. In this
connection the Strydom Committee came to the
following conclusion: .... "
The report then cites para 42 of the Strydom Report
supra.
At para 4.46 the report then goes on to state:
"The distinction made by the Strydom Committee
between the principle and the application of the Act
was also supported by some of the written and oral
evidence to the Committee for Constitutional Affairs.
The view was expressed that the main problems
experienced with the Act derived not so much from
the principle underlying it but rather from its application." (There were numerous contradictory views
that were also expressed in evidence to the committee but reference to these is not made in the report.)
The above distinction, it is submitted, is sought to
be drawn retrospectively and is not supported by
the historical factors that led up to the final enactment of the Group Areas Act. The object of the
520
legislation has never been constant. Emphasis has
at different stages shifted between militaristic,
political, economic to social reasons. Social separation of the races has never been sought to be
achieved in a master-servant relationship, for instance. Competition in the economic sphere had
been a prominent characteristic of agitation for
repatriating or segregating the Indian community.
The deployment of legislation not related to the
ownership or occupation of land (licensing legislation, for instance) is evidence of the fact that
segregated social development was not the sole
objective, as claimed. The inherent inequality in
the principle was, it is submitted, consistent with
the avarice and prejudice that surrounded the real
objectives of legislation and was not the result of
an unjust application.
It is further submitted that the history of separate
areas is inextricably intertwined with the deprivation of political, economic and social rights of
people of colour. Nor was the underlying principle
related to just racial segregation in the social
sphere for reason of the so-called cultural incompatibility of the races. Cultural differentiation did
not feature prominently at all. Had that been the
case, the then prevailing doctrine of "separate but
equal" might have aprlied.
The separate but equa doctrine was enunciated as
far back as 1898 in the case of Kruse vJohnson 1898
AB 91. Although the South African courts had
followed the principle, the doctrine made a major
reappearance in the 1950s in the case of Rex v L usu
1953 (2) SA 484 (A). The judgment reconfirmed
the doctrine. At about that time a huge controversy
surrounding the doctrine was raging in America
and was finally decided in Brown v Board of
Education (1953) 347 US 483. This decision declared the doctrine to be in conflict with the
American Constitution on the grounds that separate was inherently unequal. In South Africa, however, the Separate Amenities Act was passed in
1953 to sidestep the decisions of the courts, resulting, in the words of the President's Council Report,
mainly from the "political climate at the time and
the tradition of segregation over many years" (PC
4/1987 para 2.7). The legislature confirmed the
attitude that separate did not even have to be
equal.
The point of argument illustrated by the above
development is that for there to have been "just"
application there would at least have to have been
"equal" application. Nowhere in legislation dealing with land segregation in South Africa did the
Kruse doctrine make its appearance. And where it
did on the question of separate amenities, legislation was used to override the difficulties created by
an equal or just type of application. As demonstratively illustrated by the enactment of the Separate
Amenities Act, the "white" socio-political climate
would not have allowed a just type of application.
At any rate, even the principle of voluntary segregation itself was twice unsuccessful (the Class
Areas Bill of 1924 following the Lange Commission
recommendation as well as the developments in
the Natal Provincial Council following the Pretoria
Agreement) .
Side by side with the clamour for social and
economic segregation, were attempts to curtail the
political rights of people of colour. Thus the
DE REBUS, JULY 1989
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------------------------------------
ARTICLES
Indians were deprived of their general franchise in
the Natal Colony in 1896 and their municipal
franchise in 1924. The underlying tenor of the
evidence, whether the agitation was for social or
economic segregation or political deprivation of
rights, was the concept of the superiority of the
European race. The evidence before the various
commissions and committees is predominantly
underscored by the theme of racial prejudice. The
Clayton Commission of 1909, for instance, found
that in the interests of the superior races of South
Africa, it would never be possible to have the white
and black races labouring side by side upon the
same class of work. The Report of the 1944 Natal
Post-War Works and Reconstruction Committee,
which recommended demarcation of race-based
areas, concluded vis-a-vis the Indian community as
follows:
"The Indian of the labouring, peasant and employee
class is serving a useful purpose but the Indian of the
more affluent classes is a menace to European civilization."
In the case of Rand TownshIps Registrar v Mandi
1945 TPD 149, Murray J stated that
"[n]o doubt these enactments were passed in furtherance of a policy of social, political and economic
inequality as between white and coloured inhabitants".
Furthermore, Law 3 of 1885, the first law to make
provisions for the setting aside of locations for
Asiatics, dealt not only with residence or ownership of fixed property by Asiatics but also their
citizenship and registration.
The distinction between "principle" and "application" is a false one. If a good law is applied badly,
the courts will be able to remedy the misapplication of the law. The procedural application of a law
can in fact be tested by the courts. Where the law itself is so far-reaching that it deprives the court of
the right of intercession even in cases of extreme
inequity, then the law itself must be judged to be
bad. The courts have, within the narrow scope
allowed them in terms of their right of interpretation, offered relief as in the case of State v Govender (A1461/1982). Recent attempts at legislative circumvention of such a limited intercession
by the courts is evident in the Group Areas Amendment Bill of 1988. The latter bill, in attempting to
override the protection provided by the courts (by
way of ensuring that the victim is provided with
alternative accommodation before he could be
evicted) confirms the contradiction inherent in
the distinction between equitable segregation and
improper application of the Act.
In any event, if a distinction is to be made, it must
be based upon compatibility or contradiction with
other established legal principles in the systematic
and actual application of the Act and not its professed intentions at the time of its enactment.
Historical evaluations can be made only from
actions, not i~t'::ntions (the former being capable
of factual assessment, the latter being a subjective
state of mind). Furthermore, such a distinction
would as a consequence apportion political responsibility (not quite fairly) to officialdom responsible for the administration of the Act. That
DE REBUS, JULY 1989
the Act gave form to a political ideology of the
government of the period is thereby ignored. 11
"The segregation of popUlation groups by statutory
compulsion is a political decision which the government took and implemented in 1950, when the Act
was piloted through parliament."
Such a distinction seeks to extricate the political
leadership of the time from the actions taken in its
Defence of the principle of the Act on
the basis of group rights
It may be that identifiable components of society
require special attention to ensure the confidence,
well-being and self-assurance of such components.
These rights are dealt with in a special manner.
Such rights are referred to as minority rights.
Society's accommodation of such rights is generally enshrined in a Constitution.
A minority, classifiable and definable as such, is
consequently a component of or a group in society
which, at its own instance and deserving of specific
constitutional attention, is then dealt with in a
specific manner within the field of general constitutional rights.
The reason for this is to ensure the general equality
of all and to negate the disadvantages that might be
suffered by such component of society by virtue of
its minority status. It follows that such a special
relationship is justified only to the extent that the
general treatment 12 of that component, and in the
absence of special constitutional or legal safeguards, might result in an inequality. Such a
special relationship is unlikely to achieve legitimacy if it is intended to safeguard an unequal or
privileged status. Thus where a constitution, under
the pretext of negating disadvantages, places such
a component into an advantageous position vis-avis the general populace, and in the process confers privileges not enjoyed by the general body of
citizens, will end up creating a new set of disadvantages for the general body.
Minority rights are thus in essence a species of
public rights enforceable by State sanction and not
capable of being changed unilaterally by the minority component or by other components of society as a whole. The endurance of such a relationship between components of society will require
an agreement or consent of those whose relationship it purports to regulate, such consent being the
pivot of constitutional legitimacy.
The protection of minority rights must, therefore,
be an integral part of the social contract.
Attempts are now being made to "legitimize"
group rights by equating racial minorities with
"groups" for the purpose of giving jurisprudential
validity to the creation of race-federal entities. In
the absence of a social contract defining minorities
and their concomitant rights and obligations, such
unilateral categorization cannot enjoy constitutional legitimacy.
The balance between the individual and/society as
represented by the State is thus to be found in its
constitution and its reservoir of individual rights,
written or unwritten.
521
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ARTICLES
One such right that is under the current srotlight
in South Africa is the right to freedom 0 association. It has been argued that parallel to the
freedom of association exists the "freedom of
disassociation" and "non-association" (President's Council Report PC 4/1987 para 5.39). It is
submitted that the dichotomy which seeks to make
these separate and distinct rights, is a false one.
Inherent in and flowing from the universally
known right of association is the choice of nonassociation or disassociation. It is contained in the
proposition that I might associate with whom I
wish and implies my right not to associate with
those I do not wish to. What it simply amounts to,
therefore, is the non-exercise of the right of association. The right is individualistic and subjective in
its nature. Treating the corollary (right to dissociate) as a separate right and then equating it to a
group right, however, changes the emphasis of the
right and imbues it with an objective standard.
Equated at group level, I might not be able to enjoy
the right to associate with whom I wish to if my
"group" decides otherwise. The so-called right to
dissociate, as a separate and distinct right, then
infringes on my individual right. This corollary
right cannot exist independently since the newly
defined right of dissociation could then become
mutually exclusive and incompatible with the
right of association.
It follows, therefore, that implied in the freedom of
association is the right not to associate. A freedom
in the negative, however, is also a legal absurdity,
an antitheses of the proposition. Nowhere has
anyone agitated for freedom of non-movement, or
non-speech, or freedom of non-equality before the
law. In fact the freedom of association is incompatible, and in direct conflict, with compulsory
segregation. Furthermore, forcing categorization
of people into associations or groups by legal
compulsion and against the,ir will is a violation of
the freedom of association.
To treat the right of freedom of association, by
equating it in an ad hoc manner to a right specifically applicable to minorities or "groups" is, in the
absence of a prior social contract, nothing more
than an attempt to give pseudo-constitutional legitimacy to enforced segregation of the races in
South Africa. The so-called freedom of dissociation
is, therefore, not regarded as a freedom at all but as
a pseudonym for enforced separation.
Finally, in dealing with the concept of group rights
and the use of legal sanction to protect areas
demarcated for the exclusive use of groups, the
President's Council Report (PC 4/1987 para 5.58)
attempts to categorize the concept of legal sanction into "wetsdwang" and "wetsbeskerming"
(see n 10) (statutory compulsion and statutory
protection). The report acknowledges the interpretation that "wetsbeskerming" for the one simultaneously implies "wetsdwang" for the other.
522
Legal sanction is really the sanction that the State
as a representative of the people can deploy by
means, for example, of the criminal law to redress
wrongs against the people and is abused if employed by one component of society to enforce the
will of that component in order to achieve what
other components see as a wrong against themselves.
This is particularly so when such aggrieved components of society have been defined by a political
and constitutional process which unilaterally imposes such definition on them. The concept of
legal sanction, lacking as it does in overall legitimacy, is then viewed by such components not as
legal sanction but a form of illegitimate coercion.
In such event the existence of statutes like the
Group Areas Act create a negative perception of
the entire constitutional process that makes possible the technical passage of such statutes. Such
laws, therefore, suffer problems relating to legitimacy.13
Footnotes
I
2
3
The so-called Drie en Dertig Artiekelen adopted at
Roodepoort on 3 May 1849.
Volksraadbesluit eVRB) art 255 of 1 June 1885.
Signed by the Transvaal and the Imperial Governments on the cessation of hostilities on 27 February
1884.
4
5
6
7
8
9
10
11
12
13
Art 14 denied this right specifically to Africans Cinboorlinge) .
VRB art 1101 published under GN 621/19-11-1898.
No longer the Republican Government but Colonial
Government.
2 SAR 244: the High Court of the South African
Republic upheld the decision of the magistrate.
Where restrictions are necessary in order to protect
the right of others, the restrictions must be reasonably proportional to the right infringed.
The principle of land expropriation is a normal
phenomenon in all legal systems. Thus the interests
of the larger good outweighs the interests of the
individual good, for instance in the case of exprorriations for public roads. Here the utility value 0 the
land to the individual is weighed against the utility
value to the community.
These common-law principles have acquired a particular meaning through their Roman-Dutch heritage
which when translated into English do not have the
same legal import.
President's Council Report PC 2/1982 para 16.6.1.
See also postulation of Strydom Report and criticism
thereof.
"When the people are required to obey laws that
affect their sense of justice they w01Jld develop a
natural tendency to disobey such laws." Van der
Vyver "State Sponsored Terror Violence" Colloquium
luridicum VI 987 uavs.
m
DE REBUS, JULY 1989

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