SELECT CONSTITUTIONAL DOCUMENTS ILLUSTRATING SOUTH AFRICAN HISTORY 1795-1910
SELECTED AND EDITED WITH AN INTRODUCTION BY G. W. EYBERS, M.A.
LONDON
GEORGE ROUTLEDGE & SONS, LIMITED
NEW YORK: E. P. BUTTON & CO.
1918
PREFACE.
THIS volume is intended to supply the papers and documents
necessary to the study of South African history from the year
1795. It fills a gap in the series of works by various compilers
which have done so much towards the careful study of the
constitutions of the United Kingdom and the outlying
dominions. It is hoped also that at this time when so much
thought is given to imperial relations it may serve as a handy
book of reference for estimating the character of the various
elements that have contributed towards the building up of
the youngest of the three great British Dominions. The work
is really more than a volume of select documents, for it contains
nearly all the instruments necessary to follow the broad lines
of the constitutional history of the four colonies that formed
the Union. There will also be found some mention of practi-
cally every important step taken towards the extension of
British rule and the placing of native territories under European
control . Three documents which will form the basis of negotia-
tion towards the end of the War or shortly afterwards have
been included in Appendices. Under the heading “Natal”
are now published several papers relating to the Great Trek
which have probably never been seen by anybody now alive
outside official circles except two or three historians. These
are included with the kind permission of Mr. Secretary
Bonar Law and after him Mr. Secretary Long. Most of the
Free State laws given below are to be found nowhere in
London except in one private collection of books, the fine
South African library collected by the late Mr. Sidney
Mendelssohn.
A few documents are given in their entirety as originally
issued, the object being to show the exact form given at
various times in the different countries to proclamations,
ordinances, acts ofj[tJO’f^^ii yes imperial papers, and
vi Preface
so forth. Where a portion of a document has been sum-
marised or abbreviated this is indicated by the customary
marks. In a very few cases where I wished to draw attention
to an Act only the title and the date are given.
As regards the plan of arrangement, it seemed desirable to
adopt for the Cape of Good Hope and Natal a scheme that
would have the advantage of maintaining the unity of interest
with regard to the main groups of persons who performed the
duties of government. There will therefore be found for each
of these colonies three divisions Central Government, Local
Government, and Administration of Justice. In only a very
few cases does a document deal to any extent with two or more
of these. If the traditional division into Executive, Legis-
lature, and Judiciary had been made, a more logical basis
might be established, but then it would have been impossible
to avoid splitting up a large number of Acts and giving the
different parts under various heads. Such a course seemed
undesirable. As the papers are here arranged, matters relating
to the executive and the legislature will have to be sought
for under the first heading, those relating to municipal and
divisional councils under the second, and magistrate’s courts,
high courts, and native courts are included under the third.
No distinction has been made with regard to the origin of the
documents. Instruments issued by the Crown in Council,
by the Governor, or by the colonial legislature may be found
side by side under any of the three headings.
In the case of the Orange Free State and the South African
Republic, the Grondwet or constitution of each contains
provisions for every branch of government. Here again it
would lead to chaos if the documents were to be subdivided,
therefore a purely chronological arrangement has been made.
When any particular subject is to be consulted, the Index at
the end of the volume will serve as a guide. The laws of these
two countries were drawn up in Dutch. With the originals
an English translation has been given in every case. I have
attempted to make the rendering as literal as possible. Where
a portion of an Act in Dutch has been summarised I have
adhered as much as possible to the spelling and grammatical
forms of the original. Titles of dignity occurring in the Dutch
text have as a rule been omitted in translating.
Preface vii
As there exists no work dealing specially with the constitu-
tional history of the South African colonies the subject has been
treated at considerable length in the Introduction. Though I
have consulted nearly all the published records and the un-
published documents in the Public Record Office relating to
South Africa up to 1860, I have often been greatly assisted also
by the very thorough and reliable histories of Dr. G. McC. Theal.
Mr. Advocate Gregorowski of Pretoria has kindly sent me
a good deal of information regarding the Free State laws
passed between 1867 and 1891. I also wish to record my
gratitude for ready assistance afforded me in my search for the
documents in the Public Record Office, _the British Museum, the
Colonial Office Library, the Royal Colonial Institute, and the
Office of the High Commissioner for South Africa. My best
thanks are particularly due to those who by their lively interest
in the progress of the work, by encouragement, and by expert
advice have made my task a light one and a source of genuine
pleasure. To the willing co-worker who has copied several of
the documents and assisted in many other ways I desire to
acknowledge my indebtedness.
G. W. EYBERS.
KING’S COLLEGE, LONDON,
i$th October 1917.
TABLE OF CONTENTS.
PAGE
PREFACE . – . . . . . . . ‘ .. v
SOME ABBREVIATIONS EMPLOYED . … xvi
INTRODUCTION.
SECTION SUBJECT.
I. THE CAPE OF GOOD HOPE UNDER THE DUTCH, 1652-1795 xvii
II. THE CAPE OF GOOD HOPE UNDER THE BRITISH CROWN,
1795-1910 . . . . . xxvii
III. THE HIGH COMMISSIONERSHIP FOR SOUTH AFRICA . xli
IV. NATAL, 1835-1910 …… xliii
V. THE ORANGE FREE STATE, 1836-1910 . . lx
VI. THE SOUTH AFRICAN REPUBLIC, 1836-1910 . . Ixvii
VII. THE UNION OF SOUTH AFRICA …. Ixxv
DOCUMENTS.
CHAPTER I.
THE CAPE OF GOOD HOPE.
Section A. Central Government.
NO. TITLE AND DATE.
1. Request for an Order to surrender the Cape, i Feb. 1795 . I
2. Order to admit British Forces into the Cape, 7 Feb. 1795 2
3. First Surrender of the Cape to the British, 16 Sept. 1795 . 3
4. Appointment of the first British Commandant, 30 Sept. 1795 . 3
5′ Oath of Allegiance required, 7 Oct. 1795 . . .4
6. Appointment of Officials, loOct. 1795 …. 5
7. Instructions issued to a Cape Governor, 30 Dec. 1796 . . 5
8. Fees of Office, 7 Jan. 1797 . . . . .11
9. Treaty of Amiens, 27 March 1802 . . . .12
10. The Cape restored to the Dutch, 21 Feb. 1803 . . 13
11. Surrender of Cape Town to the British, 10 Jan. 1806 . . 14
12. Second Surrender of the Cape, 19 Jan. 1806 . . .16
13. The Farming Out of Licenses, 25 July 1807 . . .16
14. Vagrancy and Contracts of Hire, i Nov. 1809 . . . . 17
15. Sale of Christian Slaves, 9 Oct. 1812 . . . .18
1 6. Cession of the Cape to Great Britain, 13 Aug. 1814 . . 19
x Table of Contents
NO. TITLE AND DATE. PAGE
17. The English Language established, 5 July 1822 . . 23
18. The First Council appointed, 2 May 1825 . . .24
19. The Paper Currency, 6 June 1825 . . . 25
20. Extension of Hottentot Liberties, 17 July 1828 . . 26
21. Roman Catholic Relief , 1 3 Jan. 1830 . . . .29
22. Debate in the House of Commons, 24 May 1830 . . 30
23. The Emancipation of the Slaves, 28 Aug. 1833. . . 38
24. Appropriation Ordinance for 1835, 3 Dec. 1834 . . 38
25. The Eastern Districts Government, 19 Feb. 1836 . . 39
26. Petition for Representative Government, 20 Dec. 1841 . 41
27. Nomination of Ministers of Religion by the Crown, i Dec, 1845 43
28. Public Meetings, 12 Dec. 1848 . . . . .44
29. The Cape Constitution Ordinance, 3 April 1852 . . 45
30. Reserved Civil List Ordinance, 1852 . . . ’55
31. Freedom of Speech in Parliament, 19 Sept. 1854 . . 57
32. Incorporation of British Kaffraria, 10 Oct. 1865 . . 59
33.. Annexation of Basutoland, n Aug. 1871 . . .61
34. Responsible Government, 22 Nov. 1 872 . . -63
35. Amendment of the Constitution Ordinance, 31 July 1874 . . 64
36. Annexation of Transkeian Territories, 15 Aug. 1879 . 65
37. Annexation of Griqualand West, 15 Aug. 1879. . . 66
38. Equal Language Rights in Parliament, 25 May 1882 . . 66
39. Representation of Kimberley in Parliament, 21 June 1882 . 66
40. Disannexation of Basutoland, 1 8 March 1884 . . -67
41. Annexation of Walfish Bay, 25 July 1885 . . .68
42. Annexation of Tembuland, 14 July 1885 . . .68
43. Annexation of the Xesibe Country, 25 Oct. 1886 . . 69
44. Representation of the Transkei, 9 Aug. 1887 . . .70
45. Annexation of Rode Valley, i Nov. 1887 . . .7
46. The Auditing of Public Accounts, 21 Aug. 1888 . 71
47. Salary of High Commissioner for South Africa, 13 Aug. 1889 . 73
48. Narrowing the Parliamentary Franchise, 1 6 Aug. 1892 . 73
49. Ministerial Offices, 12 Sept. 1893 -74
50. Annexation of Pondoland, 25 Sept. 1894 . . .76
51. Annexation of British Bechuanaland, ii Nov. 1895 . . 76
Section B. Local Government.
52. Repair of Roads, 21 March 1800 . . . -76
53. Repair of Roads, 13 Sept. 1806. . . . -77
54. Collection of the Revenue, 28 Feb. 1828 . . -77
55. Municipal Boards created, 1 5 Aug. 1836 . . .78
56. Creation of Road Boards, 22 Nov. 1843 . . .81
57. Creation of Divisional Councils, 8 June 1855 . . -83
58. Management of Public Roads, 5 June 1858 . . ’85
59. Educational Boards, 5 June 1858 . . . .87
60. Municipalities, 30 June 1882 … .88
Table of Contents xi
Section C. The Administration of Justice.
NO. TITLE AND DATE. PAGE
61. The Courts of Justice, ii Oct. 1795 . . . -97
62. Landdrosts’ Courts, 15 Oct. 1795 . .. ‘ . . 98
63. Police Arrangements, 20 May 1797 . . . -98
64. The Courts of Justice, 24 July 1797 . . . -99
65. Court of Appeal in Civil Cases, 29 May 1807 . . .102
66. Court of Appeal in Criminal Cases, 10 June 1808 . .102
67. Circuit Courts established, 16 May 181 1 . . . 103
68. Judicial Proceedings in Public, 25 Sept. 1813 . . . 105
69. The Cape Town Court of Landdrost and Heemraden, 5 April
1816 . . . . . . . .105
70. Criminal Jurisdiction granted to Local Courts, 18 July 1817 . 106
71. Exclusive Adoption of the English Language postponed,
13 Dec. 1826 ……. 107
72. Creation of Office of Justice of the Peace, 1 1 Dec. 1827 . . 107
73. Creation of Office of Resident Magistrate, 19 Dec. 1827 . 109
74. The Sheriff of the Cape Colony, 5 Jan. 1828 . . .112
75. Qualification of Jurors, 4 Feb. 1828 . . . 113
76. The Royal Charter of Justice, 4 May 1832 . . .114
77. Administration of Insolvent Estates, 24 Oct. 1843 .119
78. Duties of Field-Cornets, 4 July 1848 . . . .120
79. Trial by Jury in Civil Cases, 1854 . . . .122
80. Resident Magistrates, 4 June 1856 ….. 125
81. The Eastern Districts Court established, 26 July 1864 . . 127
82. Special Justices of the Peace, 4 July 1876 . . . 129
83. The Higher Courts of Justice, 8 Sept. 1879 . . . 130
84. Administration of Justice in Griqualand West, 29 July 1880 . 132
85. Marriage Licenses, 14 June 1882 …. 133
86. The Dutch Language in the Courts of Law, 25 July 1884 . 133
87. The Law relating to Jurors, 7 Aug. 1885 . . . 134
88. Appeal Court and Sheriff’s Duties Act, 29 June 1886 . . 135
89. The Dutch Language Judicial Use Amendment Act, 17 Aug.
1888 . ……. 136
90. The Jury Act, 1891 …… 137
CHAPTER II.
NATAL.
Section A. Central Government.
91. Treaty between British Residents and Dingaan, King of
the Zulus, 6 May 1835 ….. 143
92. Manifesto of Emigrant Farmers …. 143
93. Attorney-General’s Opinion regarding the Great Trek, 13 Aug.
1836 . .-…;. 145
94. British Authority beyond the Cape borders, 13 Aug. 1836 . 146
xii Table of Contents
NO. TITLE AND DATE. PAGE
95. Cession of Natal Territory to the Emigrants, 4 Feb. 1837 . 148
96. Cession of Natal Territory to the King of England, 21 June
1837 … . .149
97. Protest of British Residents against a British Magistrate’s
Authority, July 1837 . . . . .150
98. Occupation of Port Natal by the British, 4 Dec. 1838 . 151
99. Early Legislation of the Natal Republic, 29 July 1839 . 152
100. Memorial of Emigrants to the Governor, 1839 . 153
101. Emigrants’ Demand for Independence, 4 Sept. 1840 . . 158
102. Articles of Agreement and Alliance proposed, 14 Jan. 1841 . 159
103. Burghership Law, 14 April 1841 . . . .162
104. British Authority over Emigrants, 2 Dec. 1841 . . 164
105. Qualification of Volksraad Members, Feb. 1 842 . . 166
1 06. Emigrant Grievances, 21 Feb. 1842 …. 167
107. Demands for Constitutional Liberties, 4 Sept. 1843 . . 174
108. British Authority consolidated, 5 Oct. 1843 . . . 180
109. Annexation of Natal to the Cape, 31 May 1844 . .182
no. Maintenance of British Authority over all Emigrants,
21 Aug. 1845. -183
in. Natal a Separate Colony, 30 April 1845 . . .184
112. Legislative Council established. 2 March 1847 . . 186
113. Charter of Natal, 15 July 1856 . . . .188
114. Native Franchise, 24 Aug. 1 865 …. 194
115. Ecclesiastical Grants, 22 Sept. 1869 …. 197
116. Electoral Divisions, 12 July 1873 …. 198
117. Constitution Amendment Law, 23 Sept. 1875 . . 199
118-122. Natal Government Railways, 1875-78 . . 200-1
123. Constitution Amendment Law, 9 March 1883 . . 201
124. Franchise Amendment Law, 29 March 1883 . . . 203
125. Constitution Amendment Law, 25 June 1889 . . 204
126. Responsible Government, 3 July 1893 2O 4
127. Office of Governor constituted, 20 July 1893 . . . 209
128. Instructions to the Governor, 20 July 1893 .212
129. Franchise Amendment Act, 23 May 1896 . . . 215
130. Annexation of Zululand, 29 Dec. 1897 . . -215
131. Amendment of the Franchise Law, 12 July 1906 . .217
Section B. Local Government.
132. Creation of Municipal Boards, 30 March 1847 . . 218
133. Municipal Corporations, 21 April 1854 . . . 220
134. Municipal Corporations, 1 6 Aug. 1 86 1 . . 224
135. Municipal Corporations, 20 Dec. 1872 . . . 226
Section C. Administration of Justice.
136. Establishment of the Roman-Dutch Law 27 Aug. 1845 . 227
137. The District Court erected, 1 6 Oct. 1845 22 9
138. Field-Cornets and Constables, 7 Jan. 1846 . . .231
Table of Contents xiii
NO. TITLE AND DATE PAGE
139. Justices of the Peace, 7 Jan. 1846 . . … 232
140. Resident Magistrates, 24 April 1846 . . . 233
141. Administration of Justice among Natives, 23 June 1849 . 235
142. Trial by Jury, 1 8 May 1852 ….. 238
143. Trial by Jury in Civil Cases, 1 8 May 1852 . . . 241
144. Supreme and Circuit Courts, 10 July 1857 . . . 242
145. Petty Debts Recovery Law, 4 Oct. 1867 . . . 246
146. Native Administration Law, 17 Dec. 1875 ‘ * 2 47
147. Transfer of Causes, n Nov. 1876 . . . .251
148. Native Administration Law. 9 Sept. 1878 . . . 252
149. Native Administration Law, 1 8 Sept. 1887 . .. . 253
150. Resident Magistrates, 14 Aug. 1889 . , . . 255
151. Native Law, 1891 . . . , .. 259
CHAPTER III.
THE ORANGE FREE STATE.
152. Petition of Trans-Orange Emigrants to Commissioner Cloete
in Natal, 28 Sept. 1843 ….. 260
153. Recognition of the Griqua State, 19 Feb. 1846 . . 261
1 54. Preparations for annexing Territory, 27 Jan. 1 848 . . 269
155. Establishment of the Queen’s Sovereignty over Territory
between the Orange and the Vaal, 3 Feb. 1 848 . . 270
156. Provisional Government in the O.R. Sovereignty, 8 March
1848 …. . 273
157. Regulations for the Government of the O.R. Sovereignty,
14 March 1849 …… 275
158. The Bloemfontein Convention, 23 Feb. 1854 . . . 281
159. The Constitution of the O.F. State, 10 April 1854, etc. . 285
1 60. Ordinance establishing the Dutch Language, 15 April 1854 . 296
161. Instructions to Field-Cornets, 16 April 1854 . . . 297
162. Ordinance No. 1,1856 ….. “301
163. Ordinance erecting Municipal Boards, 15 Feb. 1856. . 311
164. Ordinance regulating the Qualification of Jurors, 13 Feb.
1857 . ….. 312
165. The Occupation Law, Ord. No. 2, 1866 . . -314
1 66. Ordinance for the Government of Molappo, 23 May 1866 . 320
167. Law relating to the People of Paulus Mopeli, 1 867 . -325
168. Law relating to the Higher Courts of Justice . . . 326
169. Law relating to the Lower Courts of Justice . . . 330
170. The Convention of Aliwal North, 12 Feb. 1869 . -336
171. Settlement of the Diamond Fields Dispute, 13 July 1876 . 342
172. Annexation of the Orange Free State, 24 May 1900 . . 344
173. The Vereeniging Peace Treaty, 31 May 1902 . , . 345
O.R. Colony : Administration of Justice, 1902-1910 . . 347
O.R. Colony : Municipal Government, 1902-1910 , . . 348
xiv Table of Contents
CHAPTER IV.
THE SOUTH AFRICAN REPUBLIC.
NO. TITLE AND DATE. PAGE
174. The Thirty-Three Articles, 9 April 1 844 . . . 349
175. Resolution of the Volksraad, 23 May 1849 . . . 357
176. Resolution of the Volksraad, Jan. 1851 . . . 357
177. The Sand River Convention, 16 Jan. 1852 . . . 357
178. Resolution of the Volksraad, 10 Aug. 1853 3^
179. Resolution of the Volksraad, 19 Sept. 1853 . . . 360
1 80. Resolution of the Volksraad, 21 Nov. 1853 .361
181. Resolution of the Volksraad, 1 8 June 1855 . . . 361
182. The Grondwet of the S.A. Republic, Feb. 1858, etc. . . 362
183. Instructions to the Field-Cornets, 17 Sept. 1858 . . 410
184. Addendum to the Grondwet, 19 Sept. 1859; No. i . . 416
185. Addendum to the Grondwet, 19 Sept. 1859; No. 2 . . 417
186. Resolution of the Volksraad, Sept. 1858 ; Art. 23c . . 418
187. Resolu tion of the Volksraad, Sept. 1858 ; Art. 23^ . . 419
1 88. Union of the S.A. Republic and the Lijdenburg Republic,
24 Nov. 1859 ……
189. Justices of the Peace, 22 July 1870 ….
190. Resolution of the Volksraad, 6 Nov. 1871
191. Instructions to the Treasurer-General, 27 Dec. 1871 .
192. Resolu tion of the Volksraad, 25 July 1872
193. The Franchise Law of 1 876 …..
194. The Military Service Law of 1 876 ….
195. Resolution of the Volksraad, 15 June 1876 .
196. Resolution of the Volksraad, 7 March 1 877 .
197. Government Notice, ii April 1877 ….
198. Annexation of the S.A. Republic, 12 April 1877
199. Proclamation, 12 April 1877 …..
200. Convention of Pretoria, 3 Aug. 1881 ….
201. Proclamation, 8 Aug. 1881
202. The District Councils Law of 1883 ….
203. Government Notice, i Oct. 1883 ….
204. The London Convention, 27 Feb. 1884
205. Form of Warrant of Arrest, 1884 ….
206. Resolu tion of the Volksraad, 17 Sept. 1884 .
207. Resolution of the Volksraad, 3 Oct. 1884
208. Resolution of the Volksraad, 3 Nov. 1884
209. Resolution of the Volksraad, 22 Oct. 1884
210. Resolution of the Volksraad, 29 June 1886 .
211. Resolution of the Volksraad, 7 July 1886
212. Resolution of the Volksraad, 9 May 1887
213. Resolution of the Volksraad, 21 July 1887
214. Representation of Public Diggings, ii Aug. 1887
215. The Dutch Language made Compulsory, 30 July 1888
216. Resolu tion of the Volksraad, 9 May 1888
217. Resolution of the Volksraad, 27 May 1 889
Table of Contents xv
NO. TITLE AND DATE. PAGE
2 1 8. The Grondwet, 19 Nov. 1889 . . . . .485
219. Law to establish Two Volksraads, 23 June 1890 . . 488
220. Modification of the 1882 Franchise Law, 23 June 1890 .. 495
221. Resolution of the Volksraad, ii Aug. 1890 . . . 498
222. Resolution of the First Volksraad, 31 July 1891 . . 499
223. Resolution of the First Volksraad, 26 Aug. 1892 . . 500
224. Law to explain and modify the 1891 Franchise Law, 20 Sept.
1893 …….. 500
225. Resolution of the First Volksraad, 23 Aug. 1894 . . 502
226. Resolution of the First Volksraad, 25 July 1895 . . 505
227. The Grondwet, 13 June 1896 ….. 505
228. Law regulating the Right to expel Foreigners, 8 Oct. 1896 . 505
229. Resolution of the First Volksraad, 17 Aug. 1896 . . 508
230. Resolution of the First Volksraad, 4 Sept. 1896 . . 508
231. The Legislature v. the Judicature, Law No. i, 1897 58
232. Resolution of the First Volksraad, 22 July 1897 . . 513
233. Resolution of the First Volksraad, 27 Aug. 1897 . -514
234. Annexation of the S.A. Republic, i Sept. 1900 ‘ .” . 514
The Transvaal : Administration of Justice, 1902-1910 . 515
The Transvaal : Municipal Government, 1902-1910 . .516
The Inter-Colonial Council, 1903 . . . .516
CHAPTER V.
THE UNION OF SOUTH AFRICA.
235. The South Africa Act, 1909 . . . . .517
APPENDIX A.
236. Charter of the British South Africa Company, 29 Oct. 1889 . 559
APPENDIX B.
237. Agreement between the British and German Governments
respecting Africa and Heligoland, i July 1890 . -567
APPENDIX C.
238. The Capitulation in German South-West Africa, 1915 . 570
INDEX . . . . . . . -573
SOME ABBREVIATIONS EMPLOYED.
1 . C. of G. Hope Statutes : STATUTES OF THE CAPE OF GOOD HOPE,
1652-1895. Edited by Hercules Tenant and Edgar Michael
Jackson. Cape Town, 1895.
2. Laws of the O.R.C. : STATUTE LAW OF THE ORANGE RIVER COLONY.
Edited by P. L. Lefebvre and Bedver B. L. Jackson. Bloem-
fontein, 1907.
3. Locale Wetten der Z.A. Rep. : LOCALE WETTEN EN VOLKSRAADS-
BESLUITEN DER ZUID – AFRIKAANSCHE REPUBLIEK, 1849-98.
By various compilers. Pretoria, 1887-99.
4. Ords. of Natal : ORDINANCES, PROCLAMATIONS, ETC., RELATING TO
NATAL, 1836-55. By W. J. D. Moodie. Natal, 1856.
5. O.V.S. Wetboek : WETBOEK VAN DEN ORANJEVRIJSTAAT, 1854-91.
Uitgegeven op gezag van den HEd Volksraad. Bloemfontein,
1892.
6. Prods., etc. : PROCLAMATIONS, ADVERTISEMENTS, AND OTHER
OFFICIAL NOTICES, PUBLISHED BY THE GOVERNMENT OF THE
CAPE OF GOOD HOPE FROM IOTH JANUARY 1806 TO 2ND MAY
1825. Cape of Good Hope, 1827.
7. P.R.O., C.O. : Public Record Office, London ; Colonial Office
Department. The papers for each Colony are divided into
sections like ” Original Correspondence,” ” Ordinances,”
” Government Gazettes,” etc., and the volumes in each section
are numbered. Thus 50/4 is the fourth volume of the Cape
section, ” Ordinances.”
8. Rec. : RECORDS OF THE CAPE COLONY, 1793-1827. 36 vols.
London, 1897-1905. By G. McC. Theal.
9. Statute Law of the Transvaal : STATUTE LAW OF THE TRANSVAAL,
1839-1910. Compiled and edited by Carl Jeppe and J. H.
Gey Van Pittius. Pretoria, 1910.
10. Statutes of Natal : STATUTES OF NATAL, 1845-99. Compiled and
edited by R. L. Hitchins and revised by G. W. Sweeney.
Pietermaritzburg, 1900.
11. Verg. van Besl. v. d. O.V.S. : VERZAMELING VAN BESLUITEN . . .
VAN DEN HEo. VOLKSRAAD VAN DEN ORANJEVRIJSTAAT (1854-66).
Gedrukt op Last van den Hoog Edelen Volksraad. Bloemfontein
(1867 ?).
xvi
INTRODUCTION.
SECTION I.
THE CAPE OF GOOD HOPE UNDER THE DUTCH,
1652-1795.
BRITAIN’S task in South Africa has probably been more
difficult than in any other part of her extensive and widely
scattered dominions. While her statesmen have had to cope
with native problems in India and to a lesser extent in
Australasia ; while they have been faced in Canada by the
delicate matter of governing an off-shoot of another highly
civilised and intelligent nation ; while in the West Indies
there was the task of eradicating slavery and adjusting govern-
mental institutions to the peculiar needs and weaknesses of a
mixed population of Europeans and natives she found in
the southern corner of Africa all these elements combined.
There were the Hottentots, who had been gradually taught
to lead a settled life and engage in remunerative work ; the
Bushmen, still untamed and, as the event proved, for ever
untamable by any of the artifices on which the white man
prides himself ; and the Kaffir, who in his southward and west-
ward march had begun to touch the vanguard of the colonists
as they moved towards the rising sun. Most serious of all,
there was the white population, with its own ideas and traditions,
its own ambitions and its own peculiar characteristics, formed
and hardened by close on a century and a half of contact with
the soil. The relation of the white men towards their slaves
and the various native or non-European races would be a
fruitful source of difficulty. To the formation of their national
character various factors had contributed. If one would
estimate and account for the value or success of the Constitu-
tion introduced in the nineteenth century it will be necessary
to know beforehand not only the governmental arrangements
that existed in 1795 when the Cape of Good Hope surrendered
to the arms of George in., but also to understand something
of the attitude towards the State of the people subdued.
b
xviii Introduction
THE CONSTITUTION OF THE CAPE OF GOOD HOPE TOWARDS
THE END OF THE RULE OF THE NETHERLANDS EAST INDIA
COMPANY.
At its establishment in 1652 the Cape settlement, consisting
entirely of servants of the Netherlands East India Company,
Rise of the was mana g e d exclusively by officials who followed
burgher the methods and the procedure that were univer-
dass. sa iiy adopted by the officers on board a fleet or
vessel sailing between Holland and the East. While they
acted both as a governing and a judicial body their proceed-
ings were marked by promptitude and finality. The original
intention was to have a half-way house to the East, where dis-
eased persons could recuperate and fresh supplies be obtained,
and it soon became obvious that this object could be best
attained if the agriculturists were given land and cattle to
farm on their own account. Thus there arose a class of men
distinct from the employees of the Company. They were
called free-men or burghers. Receiving land in 1657, some
leagues from the immediate vicinity of the Fort in Table
Valley, they shifted into the interior, becoming the outposts
of Western civilisation and Christianity, and making from its
southern extremity the first definite and fruitful move towards
the reclaiming of the Dark Continent, a move the end of which
is not yet in sight.
Very soon it became obvious that the interests of burghers
and employees were by no means identical, and as a recognition
of this fact the colonists were given representatives
Divergent r , . . , x j. j i A , i
interests of first in the courts of justice and later in other
burghers and bodies as they were created. This privilege was
granted the burghers by the rulers on their own
initiative, for, as far as is known for certain, there were as yet
no definite and clearly formulated demands on the part of
the people for a share in the government.
This is not the place for describing with any minuteness
the evolution of a political consciousness of the Cape burghers,
Growth of but it must be remarked that the process com-
poiiticai menced before the end of the seventeenth century
consciousness. an( j continued throughout the eighteenth with
ever-increasing force and continuity. As a rising reef of rock
near the seashore first shows above the surf a few isolated
peaks at considerable distances apart, which then become
closer and closer together till the entire chain emerges and
finally, perhaps, grows to a mountain range filling the whole
countryside, so there were from the earliest years of the
eighteenth century apparently unconnected risings among
the burghers, which at first merely took the form of prayers
The Cape of Good Hope under the Dutch xix
for the redress of grievances, later of demands for a share in
the government, and finally ended in the establishment of
independent republics in the interior of the Colony.
The power against which this movement was directed was
concentrated in the hands of a few officials. Subject to the
Governor^ directorate of the Company, which had received
powers, its first Charter in 1602, there was about the year
1790 at the head of the Cape Colony a Governor with very
extensive powers. He could convene the courts of justice,
approve all judgments, call up the militia for active service,
and direct the activities of all persons who exercised minor
executive and administrative functions throughout the country.
Yet this last statement should be qualified, for there was
associated with the Governor a Council which shared the task of
making laws and seeing to it that these were carried
into effect. The available records leave a consider-
able degree of doubt as to the question in how far the Governor
was bound to act in accordance with the opinions of the majority
of his Council. On one occasion at least instructions had been
issued from Holland permitting the Governor to set aside
the decision of a majority if he deemed such a step necessary ;
and as a general rule it was the Governor who was ultimately
responsible to the managing body of the Company, though
on a few notable occasions other officials were also called to
account for acts done by the government. Yet it is not
certain whether later governors were to be considered as
bound by all instructions issued to their predecessors. It is
even doubtful whether such later governors were always
aware of the existence of instructions issued in earlier years.
The directors in the Netherlands were often more concerned
about their trade and the safety of their cargoes than about
minute and definite points of law. They were traders first
and legislators afterwards. This, however, may be stated
with certainty, that the governors did act in opposition to
the decisions of their Council and that such action was upheld
by the directors. Yet this did not happen frequently, for
when the Governor was” a strong man he carried his Council
with him, while a weak ruler generally adopted the views of
his advisers. That there were not likely to be any grave
differences between Governor and Council will be realised
when it is stated that all the councillors were officials of the
Company, whose cause they were always apt to espouse
rather than that of the colonists whenever the interests of
rulers and ruled came into conflict ; for though no special
emoluments were attached to the office of councillor, it was
always filled, at the wish of the directorate, by salaried servants
appointed by that body and liable to dismissal by it.
xx Introduction
As a rule the high officials sitting in the Council of Govern-
ment were seven or eight in number. They were generally
men of fairly advanced age who had climbed step by step
every rung in the ladder of advancement, and consequently
were well acquainted with the policy and methods of their
employers. Naturally they seldom showed any inclination to
view matters sympathetically from the burghers’ standpoint,
especially when commercial privileges were asked for. This
had the effect of causing the inhabitants to make demands
for representation in the highest governing body, but they
were met by the directors with a flat refusal. The desire
for representation had grown out of concrete needs, the
absence of trading rights which the Company reserved to
itself, and grievances arising from the dependence of the
Supreme Court of Justice on the Government, and the power of
banishment held and exercised by the Governor. Can any
explanation be found of the fact that the successive generations
of colonists who remembered and handed down the experiences
of their ancestors were so slow in their advance ? Apart from
the universally experienced difficulty of upsetting or even
materially modifying an established order of things, however
bad and undesirable, the Cape colonists laboured under the
additional disadvantages of being too widely scattered to be
able to co-operate, of being totally debarred from the advan-
tages of a public press, of being very badly educated in history
and politics, of being in their ordinary walks of life very easy-
going and somewhat inclined to become indolent, and of having
the ever-present danger of attacks by the natives to provide
against. But the most direct if not the most potent cause
of their prolonged quietness was to be found in the popularity
of their lesser boards.
By 1795 the Colony had been divided into four districts :
Cape Town, Stellenbosch, Swellendam, and Graaff Reinet. The
District president of each of the district boards was ap-
Boards. pointed by Government and his salary was paid out
of the public treasury. He received his instructions from the
Governor and Council and was removable by them at pleasure.
He was, as the civil commissioner is to-day, the representative
of the central Government in his district. He bore the title
of landdrost and had an official residence in the town where
his board held its meetings. With him were associated six
men, called heemraden. When such a board of landdrost and
heemraden was first constituted it was the practice for the
Government to appoint all the members, but when subsequent
vacancies occurred, and regularly every two years, the board
sent to Cape Town, the seat of Government, a double list of
names from which the Council selected the necessary number
The Cape of Good Hope under the Dutch xxi
of heemraden to serve for the next two years. The heemraden
had to be burghers and they had to possess land and reside in
the district for which they were appointed. No servant of
the Company, except the landdrost, could sit on the district
board. Subject to the supervision and control of the Governor
and Council which exercised executive and legislative functions
the boards performed fiscal and municipal duties in their
respective districts, seeing to the upkeep of public buildings,
the making and repairing of streets and roads, and the letting
of corn-mills where these existed. Each board had its own
treasury out of which were defrayed the expenses arising from
local works. Certain taxes were collected and paid into the
district chests, but there were others which were gathered for
the colonial treasury. Landdrost and heemraden . were also
entrusted with the duty of instituting inquiries and sending
recommendations to the Government when application was
made by burghers for grants of waste land, and it was always
on such suggestions based on intimate acquaintance with local
customs and conditions that grants were made.
Apart from their administrative functions the boards also
met as courts of justice, possessing civil jurisdiction in cases
Local Courts mv l vm g I0 Rix-dollars or more. They were
s ‘ instructed to attempt to settle disputes among the
inhabitants. This was done by amicable intervention as far as
possible, and as courts of arbitration they rendered valuable
services in difficulties relating to boundaries, rights to pasture-
lands, running water, and matters of a similar nature. Their
decisions were subject to appeal to a higher court of justice.
They were not invested with any real jurisdiction in criminal
cases, but they held inquests, obtained information at first hand
with regard to crimes, and examined witnesses on oath. All
the evidence collected was then placed in the hands of the land-
drost, who acted as public prosecutor before the Court of Justice
at Cape Town.
Each district was subdivided into a number of wards in
each of which a burgher was appointed by the district board
Field cornets to SU PP^ ^ w ^ t ^ 1 i tems * information regarding the
assessment of taxes and matters of a like nature.
He had to preserve order in his ward and was instructed in
some cases to make arrests. At first he bore the title of veld-
wachter or veldwachtmeester , but about the year 1795 he came
to be called field-cornet. He was generally the most consider-
able farmer of his ward and a man of known integrity and
ability. He drew no salary, but was excused the payment of
certain dues. The office, like that of heemraad, was eagerly
sought after for the honour it conferred on the holder in the
estimation of his neighbours. As the old inhabitants of the
xxii Introduction
Colony, the Bushmen and the Hottentots, were often more or
less hostile towards the white inhabitants, the field-cornets were
empowered to call the burghers to arms in case of attack or
other great urgency and to defend the fanners as best they
could. As a further means of defence there was in each district
a burgher militia managed by a board of officers with the land-
drost as president. All burghers between the ages of sixteen
and sixty were liable to be called up for active service and they
exercised annually for a few days. The whole of these forces
stood under the direction of the commander-in-chief of the
Colony, but it was never possible to maintain strict discipline
among the farmers or to enforce obedience to calling-up orders.
Very similar to these arrangements was the constitution of
the board that did service for the capital, with these notable
Local ovem- exce ptions, firstly that in the Cape Town board
ment in the there sat an equal number of burghers and officials of
capital. th e Company, and secondly, that it had no judicial
functions to perform. These were relegated to a Court of Petty
Cases which consisted of six members, three burghers and three
officials. They decided disputes of a less amount than 100
Rix-dollars. The Court was also a Matrimonial Board for the
whole Colony, and its sessions had to be visited in person and
its consent procured by all persons intending to marry. In
both spheres of its duties it acted under the supervision of
the Supreme Court of Justice.
In its origin and up to the year 1786 the latter body had
consisted entirely of servants of the Company nominated by
The Court the Government, except that when a bargher was
of justice, concerned in a case three other burghers had always
been associated with the officials on the bench of judges. But
in that year, in response to demands carried “by delegates of
the burghers to the Netherlands, the Court was reorganised so
as to consist of twelve judges, half of whom were selected from
the burgher class and half from the officials. The burghers too
were made permanent members, sitting for the trial of all cases
whether a colonist was concerned or not. It was a novel
method of attempting to dissociate the judiciary as much as
possible from the executive and the legislature, and if this first
stride could be followed up by further progress on the part of
the people and everything pointed to the likelihood that the
process would be continued then the Cape Colony would soon
have had a somewhat unique judicial body.
The members were appointed for life, except that when
an official was removed from the Cape his post was filled by
another of his own class. When a burgher judge had to be
appointed a selection was made by the Government between
two candidates proposed by the burgher judges already serving.
The Cape of Good Hope under the Dutch xxiii
No salary was attached to the office of judge. The servants
of the Company had to be content with their ordinary emolu-
ments and the burghers, in order to remain entirely independent
of the Government, accepted no payment whatever. The
Court of Justice tried all civil cases lying beyond the juris-
dition of the local courts and all criminal cases arising in the
whole Colony. It also heard appeals from the decisions of the
lower courts, and its own judgments were in turn subject to
appeals to the High Court of Batavia ; for in several respects,
but particularly in matters of shipping and trade, the Cape of
Good Hope was subject to the direction of the Dutch East
Indian Government, which had its headquarters on the island
of Java. In theory the Cape settlement was an out-station of
the Indian administration, but its proximity to Europe left it
much more to the guidance of the board of directors in the
Netherlands than could be the case with any of the remote
East Indian settlements.
The secretary, or, as he would be called to-day, the registrar
of the Court of Justice, was entrusted with the arrangement
and direction of the affairs of insolvent debtors according to
instructions issued by the Court. After a sale of effects had
been ordered and carried out the secretary saw to the distribu-
tion of the proceeds among the creditors according to fixed
rules of preference. But by far the most important member of
the Court was the fiscal, who occupied the position of a public
prosecutor and sat on the bench of judges when civil cases
were being tried. For more than a century the fiscal had
held his office by direct appointment issued by the governing
body of the Company and quite independent of the Colonial
Government. His duty had been to see that the orders of the
directorate were carried out and he corresponded with them
immediately. In course of time, however, it was found that
he himself needed some controlling influence and in 1793 he
was placed under the direction of the Government ; but he
continued to be responsible for safeguarding the authority
and interests of the lords proprietors of the Colony. Besides
being a member of some of the minor administrative boards
the fiscal was also a leading member of the Council of Govern-
ment.
The administration of intestate property and of goods left
to persons not resident in the Colony was entrusted to a Board
The Board ^ Orphan-masters, which consisted of six members.
of Orphan- As was the case with most of the other bodies,
masters – half its members were officials and the others were
burghers. They determined the succession of heirs and
administered the property of minors, providing for the educa-
tion of their wards. The education of the young throughout
xxiv Introduction
the Colony was always on a precarious footing. In the
country districts the local boards had instructions to assist
in the matter, but the task really devolved on the ministers of
religion at the various centres and their kerkraden or pres-
byteries. Where any schools existed at all they were either
private undertakings or were supported by charity. At Cape
Town, however, there was a Board Qf Directors of Public
Schools consisting of a member of the Council of Government,
three clergymen, and two elders, who superintended the public
schools of the town and held inspections when they were
minded to do so. Funds were raised by subscription and the
various congregations assisted the work by contributing, but
the Government very seldom made direct grants for educational
purposes. It did, however, assist to pay the ministers who
were employees of the Company.
There assembled at Cape Town another Council which did
service for the whole country, but it is difficult to classify this
The Burgher body, f or it fulfilled no duties of a legislative or an
Council, executive or a judicial nature, though indirectly
it pertained of the nature of each of these functions. It may
be called an advisory body. From before the close of the
seventeenth century, two or three burgher representatives
sitting in the Court of Justice had repeatedly been consulted
by the Government on various matters affecting the colonists
as a class and their suggestions had generally been adopted.
This custom had become crystallised and extended. From
being a party whose advice could be asked when it was needed
the burgher judges had proceeded to submit burghers’ petitions
to the Governor and Council and presently they began to
claim it as a right that they should speak for the whole body
of burghers and that they should be heard. They had con-
tinued to be for so many years the channel for transmitting
the grievances of the inhabitants that when at a later date
the officials attempted to dispute the claim they had to submit
to established custom. During the eighteenth century the
burgher judges had begun to meet in private session and they
were then regarded as constituting a separate board known as
the Burgher Council. In 1793 the usage was formally recog-
nised as the law of the land, when it was ordered that if the
councillors wished to make representations to the Governor
one or two of them could do so verbally in the first instance.
If this did not produce the desired effect, they could address
themselves in writing to the Government, who were com-
manded to supply them with an extract of the proceedings
respecting the matter. If the members were not yet satisfied
they could communicate the circumstances ta the directors in
Holland. They were to deliver such a communication to the
The Cape of Good Hope under the Dutch xxv
Governor in a sealed packet, at the same time informing him
of the subjects to which it referred. He was bound to transmit
it to the directors with other public papers at the first oppor-
tunity. Thus there was no risk of the burghers’ complaints
being squashed by the governing body without redress and
before they could be laid before the supreme authorities in the
Netherlands. By 1795 the Burgher Council consisted of the
six burgher judges who sat in the Court of Justice.
The revenue was hopelessly inadequate to meet the ex-
penditure incurred by the Company. The taxes were always
remarkably low. This may be accounted for
troublesome- partly by the fact that the colonists were rather
ness of the p OO r in convertible wealth and partly because in
the matter of levying dues the Government con-
sistently followed the advice and deferred to the objections of
the burgher councillors. They were affording a temporary
respite to the people, but unfortunately people must reap
what their fathers have sown, and the unwillingness of the
Dutch section of South Africa’s white population to tax them-
selves to-day is very likely due to the effective representation
of their ancestors’ wishes before the Government in earlier
times. The Cape was of great value to the Netherlands
Company, but more for its importance as a strategic base and
a port of call than for any direct profits which it yielded. As
a settlement taken by itself it was a most unprofitable financial
venture, and a continual drain on the Company’s funds. It
was, moreover, a very troublesome Colony, inasmuch as it had
at an early date broken away from the ordinary rut of factories
and out-stations owing to the presence of a large body of free
settlers, who devoted themselves to pastoral and agricultural
pursuits rather than to trade and barter.
After the middle of the eighteenth century the people
made demands for governmental reform which became more
Difficulties of and more far-reaching and insistent. The great
the colonists. k u ik o f the affairs in which the colonists were
concerned was already being managed in the local courts and
boards by men of their own class, selected from their midst
and in sympathy with their wishes and requirements. It is
possible, therefore, that they would have remained content for
many years .more with the established order of things, but
there were mainly two circumstances which caused them to
move. The Netherlands Company was a body trading for
profit and it reserved to itself an almost exclusive right of
trade at the Cape. This was a very old grievance with the
inhabitants. The other source of trouble arose from the fact
that during the last quarter of the eighteenth century the
eastern border of the Colony began to be threatened by power-
xxvi Introduction
ful and hard-fighting Kaffir tribes. In earlier years conflicts
with the Hottentots, Bushmen, and bands of escaped slaves
could be concluded successfully by a commando called together
in a district or a ward without the Government’s interference.
But the Kaffirs were a new factor and far more difficult to
dispose of. Yet it was just at that time that the Company
was passing through its final period of decline. It did not
afford its subjects the protection of which they stood in need.
During the last quarter of the century, too, the people were
inspired first by the teachings of the American War of In-
AUemptsto dependence and then by the French Revolution,
win reforms. an( j they began to think and talk about the con-
stitution, about fundamental laws, and about the rights of man.
Their difficulties were discussed in the light of their experience
during previous years when they had found it impossible to
obtain any guarantee for the permanent redress of their
grievances. Arriving in Amsterdam, their delegates pleaded
with the directors of the Company and with the States General
for constitutional liberties. Some years were spent in discus-
sion and negotiation. The Company was hastening to its fall,
and the States General, realising that any weakening of the
authority and prestige of the Company, which was a huge
national concern in whose welfare the whole of the people was
directly concerned, would be fatal at that time when the
political situation in Europe was in a very disturbed state,
were unwilling to coerce the directors. Commissioners were
sent to the Cape, however, to try to allay the unrest, but the
improvements which they brought about did not meet the
chief needs of the burghers. Failing to obtain compliance
with their demands, which included equal representation with
the employees of the Company in the Council of Government
and a considerable curtailment of the powers of the fiscal,
the people rose in revolt. At Graaff Reinet and Swellendam
the landdrosts were expelled and miniature republics set up
in 1795. The Government was unable to reassert its authority.
Stellenbosch was on the point of rising and Cape Town was
expected to follow the example of the other centres. But
meanwhile war had broken out between France and Great
Britain, and the Netherlands had attached itself to the French
and expelled its stadtholder, the Prince of Orange. Having
fled to England, he sent with an English expedition intended
to capture the Cape an order * instructing the Government to
admit the British forces into the Colony. After some fighting
Cape Town capitulated 2 and the South African republic was
strangled at its birth.
1 Document No. 2. ‘No. 3.
The Cape of Good Hope, 1795-1854 xxvii
SECTION II.
THE CAPE OF GOOD HOPE UNDER THE BRITISH
CROWN, 1795-1910.
Taking as a basis of division the three forms of colonial man-
agement, Crown Colony Government, Representative Govern-
ment, and Responsible Government, the constitutional history
of the Cape Colony falls naturally into the following periods :
(1) 1795-1854.
(2) 1854-1872.
(3) 1872-1910.
i. THE CAPE OF GOOD HOPE, 1795-1854.
Up to the year 1824 the central government had no history
worth recording, except during the period 1803 to 1806 when,
The Governor under the Batavian Republic which received the
an absolute country by the Treaty of Amiens, the Governor was
ruler MI 1825. ass i s t e d by a Council of four, of whom at least
one had to be colonial born and no one could be a govern-
ment official. In 1806 when the country was conquered a
second time it reverted to the position that existed from 1795
till 1803. Every public act done derived its validity from
the sole and undivided and unadvised authority of the Governor.
He directed by proclamation, instructions, and commissions
literally every matter, from the manner of drawing water on
the Cape Town square to the quelling of rebellions on the
eastern frontier. All the powers of government, as well civil
as military, were vested in him by instructions issued in 1796
to the first civil Governor, 1 and he had the sole legislative
power in the country, giving his own reading of the old laws,
modifying them at pleasure, and enacting new ones. He
increased the amount of old taxes and levied fresh imposts.
He regulated the tenure of land by fixing or reducing the
amount of perpetual quit-rent. The governors exercised a
general control of the administration of justice, and with one or
more assistants, whose opinions had no binding effect on any
decision, the successive governors sat as courts of appeal to
try civil and criminal cases of a serious nature. 2 The
Governor appointed nearly all the officials except the very
highest, and he could remove any one of them except the
Lieutenant-Governor and the Secretary. He took away the
power of initiating measures and enterprises from the local
boards and made them the instruments of his own will, while
the policy was adopted of appointing to the post of landdrost
in the various centres military officers who had retired on half-
1 No. 7. 2 Nos. 65 and 66.
xxviii Introduction
pay, and who were but very slightly acquainted with the
language and customs of the people or with the laws which
they had to administer. In many notable instances these
extensive powers were employed to the distinct advantage of
good government. Arrears of oppressive taxes were remitted,
torture as a means of eliciting evidence or punishing crime was
abolished on a Governor’s recommendation, judges were sent
on circuit to try cases in all the districts, 1 judicial proceedings
were ordered to be held in public, 2 and criminal jurisdiction
was granted to the district courts, 3 thus obviating the
tedious necessity of referring trivial cases to Cape Town. It is
a curious fact that all these measures, which probably no one
will regard otherwise than as eminently wise and statesmanlike,
were adopted while the Governor was the supreme and sole
ruler, whereas subsequent legislation which was most seriously
complained of as short-sighted and oppressive was passed by
Councils which were established in 1825, and later with the
object of assisting the Governor and limiting his power.
A despotism is not necessarily bad for a country : at times
it is the only chance of salvation. But certainly the large
Attitude of body of British settlers who arrived in the Colony
Mitterrand m I ^ 20 ^^ subsequent years did not think so.
of thToutch For the rest of the century these men were to have
burghers. a bracing effect on the thorough but slow-moving
Dutch burghers. As soon as their immediate material
needs were satisfied they commenced to agitate for a share
in the government, for the freedom of the press, and for
the right to hold public meetings. The second of these
privileges they soon gained for the Bothers they had to
wait more than twenty years. Being for the greater part
men of intelligence and sterling merit, and having influential
friends in Great Britain to plead their cause in Parliament
and before the country, they were hopeful that a speedy
change in the form of government would be effected ; but the
imperial authorities knew that it would take some time before
they could establish a firm hold on the old inhabitants, and
therefore while engaged in establishing the English language,
English law, and British institutions they realised that it was
necessary to have in the Colony a government wholly respon-
sible to themselves. The Dutch inhabitants asked for elective
district government on more than one occasion. The essential
characteristics of their class were a strong localism and a
marked individualism developed on the veld in semi-inde-
pendent districts. They did not yet realise that under British
rule their cherished land did not lie along those paths, for they
were as yet quite unfamiliar with the British Constitution.
1 No. 67. No. 68. * No. 70.
The Cape of Good Hope, 1795-1854 xxix
They would have to make a complete break with their past
history, going in a direction opposite to the one along which
they had come. Instead of gaining liberties in separate areas,
and freedom from unnecessary interference on the part of the
British Government, they would have to realise that British
sovereignty was firmly established, and that it had become
necessary to look at the pivot and get the government into their
own hands. That was the great constitutional lesson which
the British settlers had to teach the Dutch burghers ; for the
latter, when they came under British rule, had fallen back
into their early groove of localism, out of which they had been
toiling laboriously during the eighteenth century. They were
hardly aware how nearly their halting footsteps had brought
them to the promised land of self-government in 1795. .
The teachers were able and determined, and the example
they set would have been plain if their pupils had been able
Difficulties in to read their newspapers or associate with them
the way of regularly ; but being unable to command the English
between the language, and residing at considerable distances
colonists, from the newcomers, the burghers can hardly be
blamed for failing to master the lesson rapidly. No nation
can unlearn all the lessons of its past history and acquire
a new set of political ideals within the space of ten years. And
there was the grave complication that the people were under
a foreign rule and that they were intensely conscious of the
fact. Nor did the Government give a distinct lead. It was
never clearly and authoritatively stated in a manner that
could be understood by the bulk of the inhabitants that there
was a real intention to grant them at some future period the
management of their own affairs. On the contrary, the Council
The council as set up in 1825 l denied all hope, for it consisted
of 1825. only of officials over whom the Governor had up to
that time exercised the most complete control, and who were
not in any way expected to represent the wishes of the people.
The members were to discuss and vote on measures proposed by
the Governor, but any member might request him in writing
to bring up for consideration any matter. It rested with him
to decide whether this would be expedient. He could act
without the concurrence of a majority of his Council, but he
was not authorised to act in important measures without a
previous communication with them. If after such communi-
cation he took upon himself to act in opposition to their opinions
he incurred a responsibility which it might be quite necessary
to take, but with regard to which he was then bound to satisfy
the Secretary of State for the Colonies. The Governor could
suspend any member on grave issues demanded by the public
1 No. 1 8.
xxx Introduction
interest, but here again the step had to be fully explained and
justified. 1 Here was a first step preliminary to the intro-
duction of representative government. No one yet thought
of self-government. That was to be first invented in Canada.
But the intention was to establish a legislative assembly as
soon as the older inhabitants should acquire a command of the
English language, and measures for the amelioration of the
slave population should place the slaves beyond the reach of
colonial legislative control. The burghers were not attached
to the institution of slavery. Before the close of the eighteenth
century, and during the early years of the nineteenth, they
had several times been on the point of stating in so many words
that the whole system was bad, and should be swept away.
This was one of the chief items of the policy of the Batavian
Government during the years 1803-6, but by 1830 it was the
earnest wish of the inhabitants of the Cape in all walks of life.
In June 1828 there was started the Cape of Good Hope
Philanthropic Society, 2 for aiding deserving slaves and slave
The Colon ‘s children to purchase their freedom. The aim was
attitude to- to manumit as many female slave chilren as possible
wards slavery, between the ages of 3 and 12, but without causing
grave pecuniary loss to their masters. The Governor was the
patron, and subscriptions were collected for accomplishing the
object of the society. The whole number of female slaves born
annually did not exceed 600. A number of slave children were
actually freed in this way at an average price of less than 20,
so that 12,000 per year would be needed to prevent the increase
of female slaves. Many owners of slaves were zealous sup-
porters of the society. If the funds could be regularly procured
not a single slave would be born after 30 years and very few
after 20. Slaves of a certain age became free by an old law of
the Colony. If in addition to the work done by the society the
Cape revenue could be charged with twenty or thirty thousand
pounds per annum towards this worthy object, every slave
would be liberated in less than ten years’ time without any
cost to the British taxpayer. Petitions and addresses asking
that such a scheme should be adopted were all futile, though
they were warmly supported by the Governor. And if the
further colonial programme embodied in resolutions passed
in various parts of the country which offered to declare every
slave free at birth 3 were also worked out, there would not have
been a slave to set free by the end of 1838 ; but the intentions
of the Colony were distrusted in political, missionary, and
philanthropic circles in England, so that the emancipation
was eventually effected by an Act of the Imperial Parliament.
1 Rec. XX. 5-6. a P.R.O., MSS and pamphlets in C.O. 48/131 and 48/141.
3 Theal, Prog. ofS.A. in the Cent., pp. 185-6.
The Cape of Good Hope, 1795-1854 xxxi
Another item of Batavian policy that was carried out by the
new Council was the consolidation and extension of Hottentot
liberties. 1
In 1827, when the old jurisdictions of the local boards were
about to be removed, 2 two burghers were appointed to the
The council Council, but they were pensioners of the Govern-
in 1827 ment and were not looked upon by the colonists
and 1834. as representing their interests. Six years later a
new constitution came into being. There was to be an Executive
Council of five officials of the Government and a Legislative
Council consisting of the same five officials, together with five,
six, or seven unofficial members selected by the Governor from
among the most considerable merchants and landowners of
the Colony. 3 The unofficial members could be dismissed by
the Crown within two years of their appointment, but if not so
dismissed they were to retain their membership during good
behaviour. The public were now allowed to attend the Council’s
meetings. Within eight months of the first meeting of the
new legislature the colonists began to draw up another of their
numerous petitions for representative government, but without
gaining any further concessions. The Legislative Council was
not in existence many years when the Great Trek 4 commenced.
It was not in any way responsible for that movement. On the
contrary, it did what lay in its power to check the emigration
by restoring to the people a fraction of their old local liberties, 5
while one of its members went out of his way to plead the cause
of the burghers as regards their district boards, which he stated
was also the cause of progress and wise government. 6
Meantime the old Court of Justice was abolished and by a
Royal Charter of 1827 a bench was created consisting of four
judges. That instrument was superseded by
The Charters J y, ~, /. T , . o TT ji
of justice, another Charter of Justice in 1834. 7 Up to this
1827 and time the Governor had appointed and removed the
judges at pleasure, but when the first Charter was
issued the judges held office during good behaviour, and it was
pointed out by the Secretary of State that the Governor’s inter-
ference in the administration of justice between individuals
would entirely cease. 8 It was thought that the immediate
substitution of English Law for the Roman-Dutch Law then in
existence would be too sudden a change and would give rise to
much confusion. The assimilation of the law of the Colony to
the law of England was therefore to be gradual. To carry out
1 No. 20. 2 Nos. 54 and 73. 3 Cape Town Gazette, Jan. 18.34.
4 As the Great Trek of 1836 led to the settlement of Natal and the two
Republics the matter will be discussed under those headings.
6 No. 55.
9 Colonel John Bell to R. W. Hay, 7 June 1834. P.R.O., MS. in C.O. 48/159.
7 No. 76. *Rec. XXXII. 2S4ff.
xxxii Introduction
this plan smoothly the judges were ordered to submit drafts
of laws to the Governor as occasion offered for amending the
existing civil and criminal code. In this way commenced a
process by which the best elements of the two systems of law
were gradually amalgamated. The establishment of trial by
jury in criminal cases was one of the features of the 1827
Charter. Under Dutch rule the institution had been quite
unknown, but its absence had been compensated for by the
presence as judges or magistrates of several members of the
burgher class in each of the courts of justice. It was in
terms of the Charter of Justice, too, that Resident Magistrates
were appointed to the various districts. 1
Between 1840 and 1850 the demands on the part of the
colonists for representative government became very insistent
Growth of a and they kept pace with the growth in Great Britain
li io^ai ^ a lib era l spirit which manifested itself during this
policy” decade. With the growth of the free trade move-
Engiand. me nt which came to a head in 1846 and 1849 and
of liberalism in general came a ready willingness to allow
the colonies to manage their own internal affairs. Not
that people were indifferent towards the colonial empire or
believed that in any case the fruit would drop from the tree
when ripe, for some of the most fervid advocates of colonial self-
rule, like Lord Durham and his circle, were the staunchest of
imperialists. Rather, it was felt that the colonies were out-
growing the systems of the later eighteenth and the early nine-
teenth century, and that the true way to maintain the interests
of the Empire intact was not as was believed for a long time
after the American Revolution by keeping the various sections
under paternal guardianship. With regard to the Cape Colony
imperial statesmen believed that this was particularly the case.
All that could be done to discourage the Dutch burghers from
joining their countrymen across the Orange and the Vaal should
be done ; and in 1849, when the Secretary of State sent a
number of convicts to the Cape against the wishes of the inhabit-
ants, the opposition which his scheme encountered came as a
revelation, the chief feature being the perfect co-operation of the
British and Dutch colonists in the stand they made. In attempt-
ing to carry out the policy of the British Government the
majority of the Cape Council completely lost the confidence
of the bulk of the inhabitants.
As soon as this became clear in England it was decided to
modify the resolution, already taken, to establish a bicameral
legislature with a nominated upper chamber, as requested
by the colonists in their petitions, and to erect instead an
elective upper house. Another reason given for the change
1 No. 73.
The Cape of Good Hope, 1795-1854 xxxiii
was that it was feared that some of the most eligible men
who could be elected to the lower house would be unwilling
Reasons for to serve if the upper consisted of nominees. 1
granting an After the convict agitation there was no longer
un ubefai V any room for a nominated body in the Colony.
constitution. Reference was also made to the British colonies
generally and to Canada in particular, and it was pointed
out that the nominee house had proved to be the weak
spot in all the constitutions where it existed. Thus, by the
decision of the home Government the Cape received a constitu-
tion 2 far more liberal than that of any other colony except
Canada where the principle of responsible government had
been introduced in 1846 3 and of a more thoroughly repre-
sentative type than that which the inhabitants had asked for.
Not for several years to come was any of the colonies of Natal
or the Australian settlements to win such liberal forms of
government, though at the middle of the century changes in
colonial constitutions were the order of the day.
An elective second -chamber was not the only remarkable
feature about the new constitution. The franchise was in
effect quite low : male persons of any colour who occupied
property to the value of 25, or drew a salary of 50 per annum
or of ’25 per annum with board and lodging, could vote. There
had been some difference between the British and the colonial
authorities on this point, the Cape Council having desired to
fix a property qualification ; but the Government in England
insisted on an occupancy qualification only, in the hope of
placing the more advanced section of the native population
in possession of the franchise. Something was certainly gained
in the direction desired, but the bulk of the coloured people was
hardly benefited at all.
Another difficulty was how to prevent the upper chamber,
the Legislative Council, from being a mere duplicate of the
lower. The old plan of having an upper house of nominees
to safeguard the interests of the Crown having been abandoned,
what function remained for this Council to perform ? As a
matter of fact, it probably was throughout its existence next
to useless ; but it was intended to represent the landed class
which constituted the bulk of the population, and to prevent
legislation arising from panic or any other temporary force
from being effected without deliberate consideration and
discussion. . Both houses were elected on the same franchise,
but while members of the Legislative Assembly were to possess
only the qualifications of an ordinary elector, those of the
second chamber were to have a high property qualification
1 Hansard, 3 S., vol. 118, pp. 725-6.
4 No. 29. 3 Merivale, Lect. on Col., p. 636.
C
xxxiv Introduction
and to have reached the age of thirty years. By further
provisions which had the same object in view, the forty-six
members of the Assembly were to be elected by twenty-two
constituencies, while those of the Council were chosen by only
two constituencies, the Eastern Districts and the Western
Districts, in which the electors could distribute their votes
exactly as they pleased. If wisely worked this last arrange-
ment could provide for the representation of minorities.
The division of the Colony into Eastern and Western
Provinces for electoral purposes was significant, for it arose
East v. West f rom a desire on the part of the eastern inhabitants
in the Colony, either to have a government of their own, or to
have the seat of government in the east. They were mainly
of British descent, and feared that if they were represented in a
legislature sitting at Cape Town they would be at the mercy
of the inhabitants of Dutch descent who were in the majority.
Besides, they were near the Kaffir tribes and had often had to
bear the brunt of a Kaffir invasion while troops were being
hurried from Cape Town over the six or seven hundred miles
of road to their assistance. If a government were situated
at Grahamstown it could direct the management of the eastern
border more satisfactorily. For these and other reasons the
majority of the people of the Eastern Districts had been
agitating for a division of the Colony, but ultimately the
decision of the matter lay with the imperial authorities, and
the people who had only lately united the two Canadas could
hardly be expected to retrace their steps in South Africa where
somewhat similar conditions prevailed. The firm attitude
they adopted probably no one regrets to-day. In 1850 the
interests of the Colony as a whole and those of Great Britain
were really identical, for the Eastern Province standing alone
could not have coped with the pressing troubles incidental to
the presence of powerful native tribes on its borders, and would
have had to rely on the assistance of the Government in
London. This would have meant the continued presence of
strong forces paid out of the imperial treasury and conse-
quently an extended period of paternal rule ; for, when once
separated from the rest of the Cape Colony, the Eastern
Districts would probably not have looked for aid to the Western
Province any more than they would have looked to New
Zealand or Jamaica. Moreover, in the Western Districts
was a minority of burghers of British descent, while in the
Eastern Districts there was a strong minority of Dutch extrac-
tion. It would have been a temptation difficult to resist for
the majorities in each half to ignore the interests of their
respective minorities, but as matters remained neither party
was so overwhelmingly powerful in the common Parliament
The Cape of Good Hope, 1854-72 xxxv
as to be able to neglect the interests of the other. On the
other hand, if the parties continued to stand on national lines
and emphasise national aims, they were none the less made
to see the necessity of co-operating, to acquire the frame of
mind which recognised that mutual respect and goodwill
were indispensable, and in course of time the lines of cleavage
were bound to become less and less pronounced. Had the
British Government not benefited by the Canadian object-
lesson, had they been swayed by the exigencies of the moment
instead of looking ahead, co-operation and union in South
Africa would undoubtedly have been more difficult of accom-
plishment than has been the case. As it was, they practically
placed the power to legislate for the country into the hands of
a majority of Dutch-speaking colonists, fully knowing that
they were doing so, and fully aware that this would be the
situation for many years to come. Indeed, no other course was
open, for numerically and economically the older inhabitants
were incomparably the stronger. Yet, not to deny the request of
the British settlers absolutely and irrevocably, they empowered
the Governor to call the new legislature at any place which
he might consider best, and permitted that body to make any
alterations that might seem desirable. The first meeting of
the first Parliament held on African soil came together in Cape
Town on the 3oth of June 1854.
2. THE CAPE OF GOOD HOPE, 1854-72.
Though the legislature was wholly elective except for the
presidency of the Legislative Council, which was occupied by
what repre *^ e ^ me ^ Justice in virtue of his office, the executive
senta-tnT power remained in the hands of a body of high
8 V meant ent omc i a ^ 8 ‘ * ne chief of whom occupied seats in either
house though without the right to vote. The
Colony had thus reached a stage similar to that at which England
stood during the early years of the eighteenth century, before
Sir Robert Walpole became the chief Minister. The legislature
was an elective and representative body, but the Ministers
were still appointed by and responsible to the Crown. But
in Great Britain there was an upper house which was for the
greater part non-elective and non-representative, so that in
this respect the colonial legislature was from the very start
ahead of the Mother of Parliaments. There was, too, another
point of importance. In 1775 Edmund Burke made it clear
to his electors at Bristol that in every question brought before
Parliament it was he as member who was to decide, and not
they as constituents. This principle, it has been said by a
xxxvi Introduction
distinguished author l who ought to know, is still the guiding
principle of most members in Great Britain to-day. At the
Cape this principle was denied from the very start. Members,
when elected, were instructed there is no other word to use
to act on broad issues in a certain way. Had they not signified
their intention to act in such a way they would not have been
elected ; and having signified such an intention, and having
been consequently elected, they were bound to adhere to their
undertakings or to resign their seats. If it were not so, de-
mocracy would not be anything real, and party government
would be an oligarchic rule. So many thousand men selected
one man to represent their views on certain matters and to
do his utmost to get those views enforced. If at any time
he found that he could not continue to support those views,
it was his duty to make place for some one who could, though
nowhere in the Empire has a law yet been passed compelling him
to do so. Occasionally a member would be sent to Parliament
on the understanding that he would act at his own discretion ;
then the case was different. And there were always numberless
matters on which a constituency could not, or at any rate did
not, make up its mind. In every such case the member
would act as seemed best to him. Of course the system
could not have been worked out with ease but for the advent
of railways and telegraphs ; but even as matters stood in
1854 the responsibility of members to their constituents,
which was admitted on all sides, was preparing the way for
party government with all its advantages and drawbacks.
The difficulties that stood in the way of making the executive
responsible to the legislature seem very trivial to-day.
Less than two months after the first session of Parliament
commenced, a motion was brought before the Legislative
Assembly stating that the experience of the session
The Colony , , /. , . P, , f .
desires showed that hitches in the free-and-easy action of
further -fa e legislature had occurred through the absence
power. ., , ,_.. . , , . P ,
of responsible Ministers. This opinion was to be
laid before the Secretary of State with the request that
he might be pleased to convey to the Colonial Government
the conditions on which responsible government could be
conceded to the Cape. 2 Early in the next year a motion
to this effect which also provided for the appointment of
a select committee to consider the question was carried
by 23 votes to 9. A month later a similar motion
came before the Council which declared ” That in the
opinion of this Council the principal officers of government
should be appointed by the Governor, from among the members
1 Sir Courtenay Ilbert, Parliament, pp. 159-60.
‘ C. ofG. Hope Votes and Proceedings (No. 1 32), p. 152.
The Cape of Good Hope, 1854-72 xxxvii
of both Houses, and that they should hold office only so long
as they possess the confidence and can ensure the co-operation
of the legislature.” l On the part of many men in Parliament
and in the country there was a strong desire to proceed to
the further step as soon as possible. Select committees
appointed by both houses recommended the change, but the
Government in London naturally wished to see first how
the new institution would work. Besides, there were other
pressing matters enough to consider. One of the first measures
adopted provided for the introduction of trial by jury in civil
cases. 2 The country had got over its early objection to the
jury system. Then came the creation of Divisional Councils
to manage the several districts much on the same lines as the
old boards of landdrost and heemraden had done, except that
the members of the councils were now made not only to be
representative of the people but actually elected by them. 3
There were certain issues before the country on which the
electors and the members of Parliament gradually ranged
Growth of themselves into two main parties. On the question
; political of the introduction of convicts the population had
parties. fo een a n but unanimous. There had been a small
section centring round the editor of the Grahamstown Journal
which supported the scheme, but it was not strong. On the
question of granting representative government there had
been a party, small but able and determined, which desired
to reject the scheme of an elected upper chamber, and some of
whose supporters had also favoured the introduction of con-
victs. These men had a paper too, the Cape Monitor, which
may be described as the government organ of those early days.
Directing its efforts towards the postponement of the repre-
sentative government plan had been a strong party which
voiced their opinions in the former of these journals. After
1854 this section continued its efforts to obtain either a division
of the Colony into two parts or the transference of the seat of
government to Grahamstown. They fought the first and the
second election mainly on this issue, and when the matter was
brought up for discussion in the Assembly it gave rise to some
of the most dramatic scenes witnessed in the Cape Houses. 4
But the majority of the people were opposed to separation,
and the plan was badly defeated in 1861. The desire to
separate was entertained mainly by the burghers of British
stock residing in the south-eastern parts of the Colony. It
was in the main the same people who opposed the grant of
responsible government for the same reasons as they had
1 Minute XL. of the C. of C. Hope Legist. Council, p. 3.
8 No. 79. 3 No. 57.
4 J. H. Hofmeyr, Het Leven van J. H. Hofmeyr, p. 104.
xxxviii Introduction
opposed the establishment of representative institutions,
though there were throughout the Colony men who wished
to see self-government postponed, but for different reasons.
It was feared by the conservative element in the country that
a leap taken too soon would fail to reach the mark, for, they
argued, the men who were to take responsibility for the per-
formance of ministerial functions had still to be trained. This
view was defended by one of the Dutch journals, De Volks-
vriend. On a third question the issue was not so clear, though
it was roughly the same leaders of public opinion who stood
for a united Colony, for responsible government, and for the
voluntary principle in the churches. By the last phrase they
indicated that State assistance to a few favoured denominations
like the Dutch Reformed Church and the Anglican Church
should cease. It may be argued that these issues were of
temporary interest only and could not have divided the
country permanently on party lines. That is true, but the
fact is that they were not so much issues in themselves as
manifestations of party feeling which had existed all along,
but which came definitely to the surface in connection with
discussions relating to the constitution. The attempts made
from the early years of the century to change the language of
the Dutch burghers had not been successful, the removal of
their old institutions had given them a grievance, and the
recent annexation of the Orange River Territory to the British
Empire had caused much ill-feeling towards the British Govern-
ment and towards their fellow-burghers who supported it. In
the country itself the chances of co-operation between the
British and Dutch colonists had been so few that national
divisions had not yet had a chance of being obliterated. What
was needed was some firm common ground on which they
could meet, and this had not yet shown itself, so that political
parties were also national parties. Yet it should be under-
stood that during the period of representative government
the parties were by no means well organised or even so clearly
defined as they afterwards became. One incident that helped
to keep English and Dutch apart was when in 1865 the Cape
legislature was made to annex Kaffraria in response to the
wishes of the eastern inhabitants after it had refused to do so. 1
The question of responsible government was intimately
connected with the questions of expansion and defence. Up
The question to about the year 1833 the burghers had been
of defence, largely responsible for the defence of their own
frontiers against the natives, but on philanthropic grounds
the commando system which was in vogue was objected to in
England, though in 1852 it was advocated for readoption in
1 Corresp. rel. tothe Annexation of Br. Kaff., presented loFeb. 1865. Cf. No. 32.
The Cape of Good Hope, 1872-1910 xxxix
the House of Commons. 1 Then imperial troops had been
employed to assist with the Kaffir wars. By 1850 the military
expenditure supplied from the imperial treasury was amounting
to about 3,000,000 per annum for all the colonies. This
sum amounted to less than 95. in the pound on British exports
to the colonies. This state of affairs had improved the chances
of colonial self-government, for it had forced colonial statesmen
in England to lay down the thesis that ” if these colonies were
governed as they ought to be governed, no troops ought to be
maintained in them at the expense of the United Kingdom,
except for strictly imperial purposes, and that the expenses
of all troops required for local purposes ought to be paid by
the colonies.” z Therefore the local government should be
given the direction of the officers who managed relations with
the frontier tribes. It had been adopted, then, as a standing
rule of the Empire that when responsible government is given
to a colony it must provide for its own internal order and for
its defence against savage peoples on its borders. 3 At the
Cape this caused some of the people to waver in their desire
to possess full self-government, but the real opposition to the
scheme came from the men from the East, who believed they
would see as a result of the withdrawal of paternal government
a neglect of their special interests. It became known in 1867
that the imperial authorities, desirous of establishing govern-
ment by responsible Ministers, intended to withdraw the
troops in any case. By that time it had become abundantly
obvious that the activities of the executive and the legislature
were bound to end in a deadlock, the former having repeatedly
spent much more money than had been authorised by the
latter. Finally, the Governor began to make proposals which,
if carried out, would place all control in the hands of the Exe-
cutive Council. Under these circumstances the party opposed
to responsible government lost ground, and after some difference
on the subject between the Legislative Council and the As-
sembly a Responsible Government Bill 4 was passed in 1872
and, after being reserved by the Governor, received the royal
sanction before the end of the year.
3. THE CAPE OF GOOD HOPE, 1872-1910.
During the responsible government period of the Cape of
Good Hope there is a good deal of parliamentary history, but
Political little constitutional history. The Colony was now
straining of two hundred and twenty years old, and two
the colonists. nun 61 re cl years before the grant of responsible
government the burghers had been given the direction of
1 Hansard, 3 S., vol. 120, p. 736. 2 Ibid. vol. 115, p. 1372.
8 Cf. [C.-328o], pp. 1-15. 4 No. 34.
xl Introduction
their everyday life in their local courts and boards. Though
that privilege had been gradually removed during the years
1806 to 1828, the arrival of the British settlers from 1820
onwards had caused them to cultivate an interest in the
activities of the central government which had been too
often lacking during the first quarter of the nineteenth century.
The justices of the peace 1 and the field-cornets throughout
the country had been passing through a period of apprentice-
ship in the art of government. The training and experience
gained in the municipal boards and the road boards 2 was also
valuable, whilst the civil commissioners and resident magis-
trates were a valuable class of public officials on whom the
Ministers were to rely in years to come for information on
matters of the most varied nature pertaining to their respective
districts. Perhaps there was no other class of civil servant
which contributed so much to the success of legislation or the
smooth working of the administration as these officials. The
experience which an important body of men had been gain-
ing in Parliament since 1854, an d the education which the
whole of the population had undergone during the election
contests and through the English and the Dutch press, pre-
pared for the smooth working of the new form of government.
After the Bill of 1872 had been adopted by both houses of
the legislature the Eastern Province party again moved for a
division of the Colony ; but as the local aspirations of Grahams-
town, Port Elizabeth, and King William’s Town could not be
accommodated, and as the midland districts included in the
Eastern Province were opposed to separation, the scheme
was eventually abandoned.
Indeed a movement in the opposite direction had set in.
Instead of the two constituencies into which the country had
Unification been divided for the election of members of the
of the colony U pper chamber, which had done so much to keep
and the re- ,^f r **’*.* – i j_
emergence of the separatist spirit active, it was proposed to form
the people, seven electoral divisions. The number of elective
members was now twenty-one, so three members could be given
to each constituency, and electors could be allowed to give all
their three votes to one candidate or to distribute them as they
pleased, thus extending to definite small areas the principle
of the representation of minorities within those areas. The
measure was adopted in 1874, 3 and constituted in a mild way
a victory of the farming community over the townspeople, while
it obviously made the Legislative Council more representative
of the Colony as a whole than it had been before. The members
now held their seats for seven years instead of ten, and con-
sequently were more under the control of the electorate than
l No. 72. “No. 56. “No. 35.
The HighlCommissionership xli
they had been before. Another measure that bore clear evidence
of the rising influence of the country people was the first Act
passed in 1882 which permitted the use of the Dutch language
m both houses of Parliament. 1 And this privilege was soon
extended to the courts of law. 2 During the last thirty years of
the century various native territories were annexed to the
Colony, thus adding a considerable number to the native
population. It was considered desirable, therefore, to require
a slight education test of all new applicants for registration as
voters, and at the same time other qualifications of electors
were also raised. 3 The next great constitutional step that
affected the Cape of Good Hope was the Union of the South
African colonies. A word must now be said about the High
Commissionership, an office which contributed a good deal
towards the achievement of that end.
SECTION III.
THE HIGH COMMISSIONERSHIP FOR SOUTH AFRICA.
On the loth day of October 1846 the Governor of the Cape
was appointed ” Her Majesty’s High Commissioner at the Cape
of Good Hope for certain purposes.” 4 In part this was intended
to give a more formal recognition to the authority which the
Governor had exercised till that time, in part it was laying
duties till then performed by the Lieutenant-Governor of the
Eastern Districts on the supreme authority at Cape Town ;
but it was also a measure intended to meet the growing com-
plexity of South African affairs.
Firstly, the Governor had from the commencement of British
rule managed the relations of the Colony with adjoining native
The needs to tribes subject to the direction and control of the
be met by Government in London. These powers were
the office. ex ercised by him alone till on the appointment
of a Lieutenant-Governor for the Eastern Districts in i836, 5
the second phase opened. The Governor’s authority began to
be shared in this respect by the new official. During the next
ten years treaties with natives were concluded by both men,
but the acts of the Lieutenant-Governor had to be ratified by
his superior. In 1845 the office in the east began to fall into
abeyance, though it survived in a tentative sort of way for a
few years longer. In the third place there had arisen other
European communities in Natal, in the Orange River territory
1 No. 38. z No. 86. 8 No. 48.
4 Par/. Papers, C. of G. Hope, Kaffir Tribes ; Feb. 1848, p. 5. 6 No. 25.
xlii Introduction
and across the Vaal, creating a diversity of problems which
seemed to call for a special delegation of powers by the imperial
authorities.
The commission of 1846 did not yet employ the phrase
” High Commissioner for South Africa,” but this was a
The functions mere detail. That official was appointed ” for the
of the High settling and adjustment of the affairs of the
commissioner, territories in Southern Africa adjacent or con-
tiguous to the eastern and north-eastern frontier” of the
Cape Colony, and he was to take measures to prevent attacks
of the native tribes inhabiting those territories and to
place them under some settled form of government. Sub-
sequent commissions conferred similar powers, though the
manner of exercising these was prescribed in greater detail as
time went on. In 1849, after assuming authority over the
Orange River Territory, the High Commissioner solicited and
obtained a commission appointing him Governor of the new
dependency. A similar procedure was adopted at the end of
the South African War with regard to the Orange River Colony
and the Transvaal. The High Commissioner came to hold
a multiplicity of offices. At various times he became the
supreme head of such territories as Griqualand West, Basuto-
land, Bechuanaland, Rhodesia, etc., receiving instructions as
to the functions he was to perform in each. 1 He was the repre-
sentative of the Crown in the sub-continent, the link uniting
all the varying conditions of the various peoples, the unifier of
policies, the Empire’s agent.
But he became all that only because he was as a rule the
Governor of the Cape Colony. Till about the year 1890 South
His success Africa’s mother-colony surpassed all the other
due to his territories put together in wealth and importance.
Govenwrof In extending her South African empire the
the cape, home country was wise enough to employ as a
stepping-stone the foothold she had won. The High Com-
missioner was Britain’s right hand, the Cape Colony was her
lever. Sometimes the Colony grumbled and occasionally she
maintained an attitude of passive opposition, but in the end,
with perhaps one or two exceptions, she always adopted the
desired course. From the outset the governorship and the
high commissionership were inextricably interwoven. The
High Commissioner employed the public seal of the Colony for
his formal official acts. His legal adviser was the Attorney-
General of the Cape Government, and when he proposed to take
an important step he consulted at first his Executive Council
in an informal manner, and after responsible government was
introduced, his Ministers. As most of the native territories
i See, e.g., Part. Papers, S.A., 130, 14 Ap. 1905.
The High Commissioner ship xliii
were made dependencies of the Cape of Good Hope any other
course would have been open to serious objections. We are for-
tunate enough to possess an authoritative statement on the
practice that came to govern the relations between the High Com-
missioner and the Cape Ministry. In 1888, in reply to a question
put in the Legislative Council, the Treasurer-General stated :
” It is not the duty of the Ministry of this Colony to advise the
High Commissioner. Their duty as Ministers is to advise the
Governor of the Colony. And the High Commissioner has
powers which he exercises as High Commissioner, with which
powers the Government of this Colony have no constitutional
right to interfere. At the same time he (the Treasurer-General)
wished it to be understood that the relations between the
Ministry of this Colony and the High Commissioner are as good
as can be desired. And although it is not the duty of the
Ministry to advise the High Commissioner, nor is it the duty of
the High Commissioner to inform the Ministry of this Colony
what he is doing as High Commissioner, yet the relations between
the two authorities are of that character that whenever the
High Commissioner is acquainted with anything going on that
may have a relation to, or some effect upon, the interests of
this Colony, he does not fail to communicate with the Ministry
upon that subject. At all times he is ready to confer with the
Ministry on any subject that may have any relation whatever
to the interests of this Colony.” l So far had constitutional
practice outstripped the written law that when the Secretary
of State’s attention was drawn to this statement he had no
criticism to offer. It would be difficult to think of any im-
portant subject whatever on which the High Commissioner
was called upon to decide, which had no relation whatever to
the interests of the Cape Colony, so that as a rule the High
Commissioner conferred with the Cape Ministry on steps he was
about to take. But like most other rules this one had excep-
tions, both before 1888 and thereafter.
SECTION IV.
NATAL, 1835-1910.
For the sake of clearness of treatment it is convenient to
divide the constitutional history of Natal into five well-
marked periods :
(1) I835-38- (3) 1844-56.
(2) 1838-44. (4) 1856-93-
(5) 1893-1910.
1 [C-S488], pp. 21-2.
xliv Introduction
i. NATAL, 1835-38.
By the year 1835 a small number of British settlers had
congregated round Port Natal for the purposes of hunting,
British trading with the natives of the neighbourhood, and
settlers in engaging in adventures of various kinds. They
Natal. were q u ite unconnected with the British Govern-
ment or with the Government of the Cape Colony. In that
year they first formed the semblance of a government by
appointing a committee of management of their affairs whom
they authorised to levy certain taxes and to perform some
public duties, mainly for the purpose of granting and distribut-
ing land in freehold among themselves, for from the start these
immigrants had been occupying waste land round the Bay,
and they desired to show some form of legal right to the tracts
on which they had settled. Under the authority of the
committee they proceeded to make grants along the coast,
restricting the size of their farms to 3000 acres. The bound-
aries of these farms were never measured or clearly defined,
an approximate estimate was all that could be made and
care was taken not to encroach on their neighbours’ lands.
The town of Durban was already growing up, and from that
port as well as from Cape Town requests were sent to England
asking that British authority might be established over the
district, one of the chief reasons given being that the United
States was likely to found a colony in the territory. Colour
was given to the statement by mentioning that a number of
American missionaries had arrived in the country. The
Colonial Office, however, took no steps, so that the small
community had to plod along as best they could. Some of
the white men gathered round themselves a number of native
retainers, thereby gaining the status of petty chiefs in the
country, 1 and presently they got involved in native disputes.
In the year 1838 an unwise attack was made by a large portion
of the British settlers at the head of a number of natives upon
Dingaan, the Zulu King, when they were destroyed almost to
a man. Most of the properties were thus left unoccupied,
and when a British Commissioner 2 visited Natal in 1843 he
found that only two farms had been regularly occupied for
any length of time. While Dingaan was destroying the white
inhabitants from the Bay, Natal was being entered by Euro-
peans from another quarter.
icy.Na.9i.
2 H. Cloete’s Report on Lands in Natal, addressed to Secretary John
Montagu, Cape Town, 3Oth May 1844. P.R.O., MS. in C.O. 48/247.
Natal, 1838-44 xlv
2. NATAL, 1838-44.
The causes of the emigration of Dutch farmers from the
Cape Colony in 1836 and subsequent years were of various
, kinds with different individuals. They arose
Causes of . , , …. i i j
the Great mainly from an unwillingness to be ruled over
T the k Cat>T ^7 a foreign power, from the absolutism of the
rule, the loss of their local governing bodies, the
refusal to grant them representative institutions, the many
harsh laws made for the better treatment of slaves, the absence
of adequate compensation when their slaves were set free, the
lack of protection against native attacks. Most important
of all the factors was the desire for independence, the re-
publican spirit, which had grown strong by a slow but steady
process during the eighteenth century, the spirit which has
always been revealed in course of time by colonies planted
in every age and in all latitudes, and which at the Cape had
been cultivated by the liberal district government arrange-
ments, by the vast distances of the country, and by the loose-
ness of the government of the Netherlands Company. The
chief circumstances leading up to the Great Trek which were
uppermost in men’s minds at various periods are indicated
in the documents, 1 but of course there were some factors
which operated subconsciously and others which could not
be openly talked about when addressing an English governor,
and these can only be gleaned by a careful study of the
character of the Dutch burghers, of their previous history
and of their subsequent enterprises. If it is the historian’s
task to interpret events as well as to chronicle them, he will
seek for the connection of the Great Trek with the history
of the seventeenth and eighteenth century as well as the early
nineteenth, and he will further consult the story of the trekkers
in the later nineteenth and the twentieth century.
Having been advised by the Attorney-General that there
was no convenient power by which the thousands of departing
British policy emigrants could be prevented from leaving the
towards the Cape Colony, 2 and having been informed by the
emigrants. Lieutenant – Governor of the Eastern Districts
that it was impossible to employ force to keep them in the
country, the Colonial Government adopted two outstanding
lines of policy with regard to the expatriated burghers. In
the first place, they laid down the theory that the emigrants
continued to be British subjects and liable to be dealt with
according to British laws no matter where they went. 3
Secondly, they acknowledged the authority of some native
chief or other over tracts of territory in which the emigrants
1 Nos. 93, 100, 106, and 107. 2 No. 93. 3 Nos. 94 and 104.
xlvi Introduction
had settled or seemed about to settle. This was done either
explicitly by means of a formal treaty or by negotiations of a
more or less confidential nature, or implicitly by siding with
the tribes with whom the emigrants came into conflict. As
an aid to this second line of policy they prevented, as far as
lay in their power, the sending of fresh supplies of ammunition
with a view to making it impossible for the emigrants to
commit acts of aggression against any of the native tribes.
Great Britain was the paramount power in South Africa.
She was bound to grow progressively stronger. For better or
for worse she believed that she had the advancement and
well-being of hundreds of thousands of natives in her keeping.
If her policy has been at times tentative and uncertain in
many respects, her representatives have steadily attempted
to maintain the welfare of the coloured people when they were
at issue with the white men. As the farmers trekked eastward
and north-eastward in various parties they gradually formed
themselves in the course of several years into three main
groups, settling in the territories now called Natal, the Orange
Free State, and the Transvaal. It is with the first of these
groups that this section of the work has to deal.
Securing the cession of a large tract of land in Natal from
the Zulu king for services rendered in I837, 1 this group of
Settlement emigrants became firmly established in the country
of the in the course of the next two years, deposing
iNataf- Dmgaan who acted treacherously and setting up
their con- another in his stead. A British force had lately
\ shtutton. b een stationed at Port Natal, but it did not interfere
much with the emigrant community which had settled further
inland. As to the form of government established by the
farmers, each party elected a leader, whose orders they gener-
ally obeyed while trekking. He was generally styled the
Commandant. It was his task to see that the members of
his party performed such duties as they were familiar with
according to the old Cape burgher laws. Some time before
the negotiations with Dingaan, one of the most able leaders,
Pieter Retief by name, was elected a sort of commandant-
general. Curiously enough he received the title of ” governor,”
intended to signify, no doubt, that he was to exercise auth-
ority over all the farmers of the neighbourhood. Towards
the end of the year 1838 there was a Volksraad, i.e. a legislative
body chosen by the people. The members seem to have
belonged to one of the largest parties then in Natal. Gradually
matters shaped themselves as the danger of fresh attacks
from the Zulus became less menacing. From a letter written
by Captain Jervis, the commander of the British garrison at
* No. 95-
Natal, 1838-44 xlvii
the Port, and dated 27th March 1839, J it is plain that a large
body of emigrants had by that time concentrated at the Bush-
man’s Rand, the present site of Pietermaritzburg, with the
intention of laying out a town there. They had already
elected a Volksraad of 24 members, one of whom they had
appointed President. Judicial functions were exercised by
magistrates called landdrosts, each of whom was assisted
by six heemraden, elected annually. The landdrosts tried
summarily all criminal cases in which fines could be imposed
amounting to 20 Rix-dollars. Sentences inflicting heavier
fines were subject to appeal to the Volksraad. In case of
murder or other very serious charges the magistrate was at
liberty to swear in a jury of twelve who found the verdict. In
such cases the landdrost and the heemraden merely investi-
gated the charges. The constitution of the Republic em-
bodied every principle of government that the people had
been striving to establish during the previous seventy years,
and the peculiarly English institution of trial by jury with
which they had become acquainted in the old Colony suited
their democratic ideals entirely, hence its adoption.
Negotiations with foreign powers were carried on and letters
were signed by the Volksraad as a body. In practice drafts of
laws were submitted to the people for their endorsement or
rejection. The State was small and its smallness made the
procedure quite easy.
Was it a State at all, and is it correct to speak of the Re-
public in Natal ? A constitutional lawyer would probably
status of the answer the question in the negative. The emigrants
emigrants. were claimed as British subjects, and an Act
of the Imperial Parliament had referred to them as such. 2
Parliament could undoubtedly legislate ex-territorially for
British subjects, if they were British subjects. Did they
remain British subjects merely because they were regarded
as such ? Was it possible for them to discard their status as
subjects if they chose to become subjects of another state, but
impossible to lay aside that status when they moved into
unoccupied regions ? The Republic was never recognised by
any Power, and international usage seems to demand that
states newly created should be recognised by other civilised
states. Had the problem been brought before an impartial
arbitration court it would have made one of the most interest-
ing test cases in the history of the world. De jure there may
never have been a republic in Natal ; that such a state existed
in fact is obvious. It provided for its government, adminis-
tered justice, levied taxes, waged war, and concluded treaties
without reference to any other power. When the troops were
1 P.R.O., MS. in C.O, 48 /2oo. J No. 94.
xlviii Introduction
withdrawn from the Port in 1839 the British subjects remaining
there readily submitted to the Volksraad.
The interests of the British Empire could not permit an
independent state to grow up on the south-eastern seaboard
Annexation of Africa. A proclamation was issued in 1841 by
of Natal, the Cape Governor * and military possession was
taken of Natal. Protracted negotiations followed and a good
deal of fighting, till towards the end of 1843 a portion of the
emigrant community capitulated and the rest trekked north-
ward to join their comrades beyond the Drakensberg. Those
who intended to remain behind made certain demands 2
which if conceded would have placed them in the situation of
an average British colony possessing representative institutions
but without responsible government. No notice was taken of
the document embodying their requests. The next year
Natal was annexed to the Cape Colony 3 and the infant
Republic ceased to exist.
3. NATAL, 1844-56.
Intimately connected with the problem whether or not
Natal was a Republic prior to the year 1844 is the further
Legislation question whether after its annexation it was to be
for Natal regarded as a Colony acquired by conquest or
by the crown. cess i on or by settlement. Up to the year 1887,
when an Imperial statute gave full power to the Crown to
legislate for all newly acquired colonies where there is no
existing civilised government, British constitutional theory
said that colonies acquired by settlement were not subject
to the legislative power of the Crown in Council, unless they
were made to be so by an Act of the Imperial Parliament.
Colonies acquired by conquest or cession, on the other hand,
fell directly under the legislative power of the Crown.
Cession is often a formal recognition of conquest. Now
for a good many years the Crown did in fact issue laws for
Natal, so that the conclusion must be, that the imperial auth-
orities in 1844 and subsequent years regarded the new territory
as having been acquired either by conquest or by cession.
No formal deed of cession was ever shown, only a general
statement by the Volksraad that they would not oppose the
annexation by forceful means. But this took place only after
the emigrant community had actually been fighting to oppose
British occupation and when they had become convinced
of their inability to carry the struggle to a successful issue.
Natal then was acquired by conquest, and the instruments
1 No. 104. * No. 107. * No. 109.
Natal, 1844-56 xlix
regulating its government down to the year 1856 were issued
on the authority of the Crown in Council.
For one year Natal formed an integral part of the Cape
Colony, but the Cape legislature had to pass special laws for
Legislation the new district and could not apply any old
by the Cape laws or institutions to it without such specific
Council, enactment. This arrangement continued even
after provision was made in 1845 for a separate government
in Natal with a Lieutenant-Governor at its head. 1 Till 1847
the Governor and Council legislated for Natal, setting up
municipal boards, 2 field-cornets, justices of the peace, and
resident magistrates in imitation of the Cape models. A
district court 3 consisting of one judge appointed by the
Crown and holding office during good behaviour was also
erected, and the Roman-Dutch Law was established. 4
Naturally this arrangement, by which their country was
honoured with no worthier title than that of a District and
Desire of the was subject to a few individuals holding session at
Colony to a considerable distance, was not expected to satisfy
owniegis- the inhabitants, and it did not. Before submitting
Mure. to the new order of things the Dutch burghers
had particularly desired that Natal should be constituted a
separate colony, and from the start the British settlers wished
to possess a legislative body consisting of elected members.
One step forward was taken in 1847 when Letters Patent 5
were issued providing for a separate legislative body for Natal
consisting of three or more members appointed by the Crown
and holding office during pleasure. General executive powers
were vested in the same body, but the Lieutenant-Governor
was instructed to act without the concurrence of his Council
whenever he felt convinced that this was necessary.
The establishment of a Legislative Council on the spot
came none too soon, for Natal already stood face to face with
Necessity for * ne g reat native problem. How could the Zulus
a local be governed ? Should they remain under the
legislature. au thority of hereditary chiefs, and if so, was there
a sufficient guarantee (i) that the public peace of the country
would be preserved, and (2) that they would advance towards
the civilisation which Europeans have always regarded as a
good in itself ? Or should they be brought under the direct
rule of the Colonial Government, and if so, (i) what law should
be administered, and (2) was the Government prepared to
finance the administration, and (3) would not the resultant
contact with the very civilisation which it was intended to
impart effect the debasement and ultimate ruin of the race ?
Could the Zulus be put to any use for purposes of labour,
1 No. in. * No. 132. 3 No. 137. * No 136. 6 No. 113.
1 Introduction
defence, or commerce, and if so, what return could be made
them as a people for the services rendered ? The study of
native customs and native law in Natal was essential to the
good government of the territory, and the task could be
accomplished by the Council at Cape Town only in a very
perfunctory and half-hearted manner. A fuller consideration
of the various aspects of the native problem must be reserved
till the efforts to obtain responsible government are discussed.
While it was in the interests of the Empire with a view to
upholding its dignity and establishing its hold on tl ; new
Difficulties dependency that its officials should stand under
;; in the way its direct control, the inhabitants believed it to be
reprlSaiwe to their interest that they should share that
government, control. Of the European population those of
British blood were still the less numerous section, though by
immigration they were steadily increasing in proportion to
the other settlers, and at the middle of last century any govern-
ment in London which maintained a paternal rule in any
colony inhabited by a large number of British citizens would
have to make out before Parliament and country a strong
case for keeping up such a position. Besides, while the
colonial authorities were negotiating in 1843 with a view to
taking over the government of Natal, the Governor had read
in the Legislative Council of the Cape a minute which was
soon published in Natal and in which it was declared that
Her Majesty’s Government was anxious to place the Natal
institutions upon such a footing, consistent with the main-
tenance of her royal authority, as might be most acceptable
to the bulk of her subjects. 1 Yet the settlement was still in
its infancy, the Dutch farmers were disaffected, and it was
said that there was not one English inhabitant possessing
the united qualifications of character, interest in the country,
and education, whom it would be expedient or proper to
elect or appoint a member of any Legislative Council, 2 so that
a petition which in 1848 asked for a representative form of
government met with no success. One of the chief objections
to an elective council, viz. the smallness of the number of
British settlers, was overcome to some extent during the years
1850 and 1851, when a few thousand immigrants were intro-
duced according to a scheme promoted by a certain Mr. Byrne, 3
that colossal benefactor of Natal going bankrupt over the
operation. The colonists were gaining valuable experience
in self-government in their village and district boards, and the
Governor recommended compliance with a second petition
1 Parl. Papers, Settlement of X atal, presented i4th Aug. 1850, p. 190,
a Ibid. p. 7. The petition is given on p. 2 of that work.
3 Ibid. Natal, presented 3oth July 1851, pp. 19 fi. and 58 fi.
Natal, 1856-93 li
praying for representative government in 1852. His advice
was adopted and Letters Patent establishing the principle of
representation in the Council were passed in 1856.
During the period under review some alterations were
made in the system of municipal government by extending
the powers and duties of the corporations as previously
established, 1 while divisional or county councils were created. 2
These, however, were devised on too pretentious a scale for the
various districts to support. The arrangements were annulled
after three years. As regards the administration of justice
an Ordinance of 1849 3 preserved the power of native chiefs
to try according to native law cases arising between members
of their tribes, subject to the advice and control of European
officials appointed by the Lieutenant-Governor. In all cases
appeals were allowed to the Lieutenant-Governor, acting
with the advice of the Executive Council. For the benefit of
the European population two laws were passed in 1852 to
indicate the qualification and duties of jurymen 4 and to
introduce the institution of trial by jury in civil cases. 5
4. NATAL, 1856-93.
Up to this time Natal had been largely dependent on the
Cape Government, carrying on its correspondence with the
Colonial Office through that channel ; but the Charter 6
granted in 1856 raised it to the status of a separate Colony.
The Legislative Council was reconstituted so as to consist of
sixteen members of whom twelve were to be elective and
the others, who were high officials, were Crown nominees. In
practice these nominated members also constituted the Exe-
cutive Council, which remained under the direct control of,
and responsible to, the Ministers of the Crown in England.
The Colony was definitely launched on its way to responsible
self-government, the coveted goal which Canada had reached
just ten years earlier and to which the Cape Colony and the
Australian colonies were also moving. The British Govern-
ment and the bulk of the people in the United Kingdom had
no objection to pushing the system of government established
in 1856 to its logical conclusion that objection was a thing
of the past, though of the recent past. It was only sixteen
years since Lord Durham had published his memorable report
on the government of Canada, in which he advocated the
system of responsible government for that Colony, carrying
the British political world by storm in a short space of time
through the cogency of his arguments and the sound common-
1 No. 133. 2 Ord. 3, 1854 ; P.R.O., C.O. 180/1.
8 No. 141. * No. 142. No. 143. ‘No. 113.
Hi Introduction
sense conclusions at which he arrived. But if his reasoning
was unassailable it was obviously none the less imperative
that in every colony due precautions should be taken to
maintain imperial interests.
In Natal the movement for responsible government came
to a head in 1870, when a Bill aiming at the introduction of
– The demand ^ a ^ system was introduced in the Legislative
for responsible Council, but was withdrawn without completed
government, legislation. It was not until 1893 that the
movement gained success. During the intervening twenty-
three years some two or three dozen Bills were introduced,
of which about a dozen were passed, and several petitions and
addresses were presented aiming at making the executive
responsible to the legislature. If then the imperial authorities
had no objections to offer to the system, and readily admitted
that the arrangement made in 1856 gave no guarantee that
imperial policy would be carried out 1 the Executive Council
having at times adopted an independent attitude and that
it was liable to end in a deadlock between the legislature
which had to find funds and the executive which had the
spending of it ; and if the colonists desired the change, what
caused the delay ? If the answer must be given in a single
sentence it must be stated that responsibility would bring
with it obligations which a young Colony, situated as Natal
was, could not shoulder; but the difficulties that stood in the
way related in the main to the defence of the country, to
native affairs, to the interests of Indian immigrants, to the
relations between the Governor and the Executive Council on
various issues, and to the relations to be observed by Natal
with regard to the High Commissioner for South Africa, the
Cape Colony, and the two Republics.
Reviewing each of these points, it was obvious in the
first place with regard to defence that Great Britain would
… certainly follow the procedure] adopted in most
other colonies of withdrawing] the bulk of the
imperial troops stationed there, retaining only such garrisons
as were imperatively demanded by possible eventualities of
imperial defence. When an intimation of this intention was
published in Natal it straightway divided the inhabitants
into two more or less evenly balanced parties the one, led
by the elected members of the legislature, still agitating for
responsible government, and the other fearing the burdens
which that institution would entail. The question was only
one of supplying the actual man-power for any war that might
arise, for even before responsible government was established
the Colony was liable to bear at least a large proportion of the
i Parl. Papers, [-3174], p. 8.
Natal, 1856-93 liii
expense involved. 1 For a long time the Government in
London maintained its attitude, and consequently a majority
of the colonists opposed a change in the constitution. Under
these circumstances no improvement could be effected, for
the Secretary of State for the Colonial Department was firm
in his demand that so important a step as the appointment of
a responsible Ministry should only be taken when a majority
of the citizens, being fully aware of the results that would
follow, had distinctly expressed themselves in favour of it.
Indeed it was only when native pressure on the northern
frontier had been weakened by a native war with the South
African Republic, when the Cape Colony made itself responsible
for the government of the territory on the south-western
frontier, and when the Government in London promised to
assist with the defence for a while longer, that a majority of
the electors could be persuaded to accept responsibility.
Really the matter was not quite so simple as it looked. More
was involved than the mere question whether the Colony
could enrol, equip, and pay the necessary number of troops
for repelling a native attack. Native policy was initiated and
directed by the imperial authorities. The question before the
colonists was whether they should support blindly a policy
over which they would have very little practical control, and
which, they stated, had already led to complications. But
this leads to a consideration of the second of the list of diffi-
culties which faced the framers of the new constitution, the
one which permeated nearly all the others, and made it im-
possible to do for Natal what was done for so many other
colonies possessing representative government, viz. establish
responsible government by merely amending a clause or two
of their constitution Acts or altering [a few words in the
instructions of their governors.
In 1880 when demands for an improvement of the con-
stitution became peculiarly insistent the white population of
The native Natal consisted of about 30,000 souls, of whom less
problem, than yooo were electors. The number of Kaffirs
was estimated at not less than 400,000. It was out of the
question to grant the franchise to those masses of coloured
people unless a legislature of uncivilised persons were to be
set up with perhaps three or four members to represent
European interests. But the natives had been living under
their own laws, which had lately been codified 2 and which
were administered by special officers responsible to the
Governor. In the event of responsible government being
set up it was feared that native rights would be disregarded or
exploited for the benefit of the white population, unless some
1 [0-3280], p. 1 6 ff, No. 141.
liv Introduction
means could be devised for first securing those rights ; for if
the unfettered direction of native affairs were placed in the
hands of responsible Ministers representing the views of the
majority in the legislature, the result might be that the tax-
payer in the United Kingdom would have to bear the cost and
responsibility of providing for a policy over which he had no
control. On behalf of the colonists it was claimed that they
more than any other people were likely to strive after the main-
tenance of a good understanding between whites and blacks, for
to them a Kaffir war meant the spreading of distress and con-
fusion, peril to life and property, and the arrest of progress. 1
They went so far as to say that the control of native policy
which the Government in London exercised had not improved
the coloured races. ” It is a fact beyond dispute,” they de-
clared in 1888, ” that the moral condition of the Native popu-
lation, after forty years of British rule, is worse than it has
ever been.” 2
At first the representative members in the Legislative
Council did not claim a complete measure of control over the
natives in the event of self-government being granted, but
were content that all measures relating to native affairs should
be referred to the Government in London for consideration
and approval. 3 This attitude, however, was probably of the
nature of an offer in return for continued protection ; at any
rate, it did not satisfy the constituencies. Seven years later,
in 1888, the Council took some pains to remove the prevailing
impression that, were responsible government established, the
control of native affairs would practically remain in the hands
of the Crown, observing that it was the essence of responsible
government that the local administration should possess full
control over all classes of the population. 4 But now the
Council took the wind out of the Imperial Government’s sails
by advocating as strenuously as the latter had ever done some
form of representation of native opinion and native interests.
Certainly the prolonged discussion of the subject had been
stirring the white community to a readjustment of their
early views. All this was to the good of the settlement, but
the home Government insisted on some positive constitu-
tional guarantee being afforded for the maintenance of native
interests. The Council was not irresponsive. They suggested
a legislature of two chambers. The seats in the upper chamber
might be filled by nominees, and this House alone could be
given the power to initiate legislation intended to deal with
the Kaffir population. 5 The Secretary of State, however, did
not consider this expedient would contain any security that
1 Parl. Papers [-3174], p. 4. 2 [-6487], p. 9.
3 [-3174], p. 10. [C-6487], p. 8. Ibid. p. 15.
Natal, 1856-93 Iv
adequate laws would be passed or sufficient money voted for
the benefit of the natives, 1 particularly as the second chamber
would have the initiation of money Bills. Being asked to
offer a solution he suggested that all Bills exacting compulsory
service of natives or restricting their freedom in any way or
altering their old laws or increasing the taxes paid by them
should be reserved by the Governor. He also thought a
Native Protection Board independent of the legislature might
be established and a sum of money should be reserved under
the absolute management of the Governor to be spent annu-
ally for the education and general advancement of the natives. 2
This was written in August 1889. The Colony now only too
gladly reverted to the idea of a unicameral legislature, but
again the Secretary of State objected. Responsible govern-
ment with only one House was an unknown thing in the
Empire, and it was very desirable to have an upper chamber
which would be expected to guard against hasty and ill-
considered legislation for the non-European population. In
1892 the British Government demanded the erection of an
upper chamber as an indispensable condition to the granting
of responsible government. 3
The third difficulty that had to be met arose from the
presence in the Colony of a large body of natives of India.
The Indian Owing to the unreliable nature of the Kaffir as an
population, agricultural labourer a commencement was made
in the fifties with the introduction of coolies at the public
expense. Within a few years several thousands arrived, and
contrary to the expectation of the promoters of the scheme,
they were not anxious to leave the country when their periods
of indenture expired. In 1881 they numbered 25,000, thus
nearly equalling the European population. As yet there were
among them only some eight or nine dozen registered electors,
but large numbers of names were being pushed forward for
registration. There was considerable uncertainty as to the
position of this class of men under the Charter, so three Bills
were introduced into the Legislative Council in 1880 aiming at
limiting the Indian franchise by demanding an education
test for electors. In the same year a select committee of the
Council dealt very summarily with this question by simply
recommending the exclusion of the Indian population from
the franchise. 4 It was feared that in course of time the Indian
vote might swamp the European vote. Another objection
was that if the Indians, who belonged to another country and
were only brought into the Colony as labourers, could by
residence and by a property qualification obtain the franchise,
1 [6-6487], p. 22. * Ibid. p. 24. Cf. p. 74.
Ivi Introduction
then grave dissatisfaction would be felt by the Zulus of Natal,
who after all belonged to the country, assisted in police and
military duties, and contributed a large proportion of the
revenue. Yet the Indians were on the whole considerably
further advanced than the Kaffirs in the scale of civilisation,
they were not living under a separate code of law of their own,
they were contributing a good deal to the agricultural progress
of the Colony, and it was displeasing to the imperial authorities
that any of the sons of the Empire should be placed under
disabilities. But as a Bill was passed and sanctioned in
1883 1 providing for the enfranchisement of unindentured
Indians possessing the necessary property or residence qualifica-
tions if they could write out an application for registration in
English or Dutch and sign their names in European char-
acters, the Indian franchise was not a serious ground of differ-
ence between the Colony and the Government in London
during the later efforts that were made to procure responsible
government.
The next point to be settled touched the relations that were
to subsist between the Governor and the Executive Council.
Relations Under the 1856 Charter, and by Royal Commis-
b Governor* s ^ ons anc ^ Instructions issued since that date,
the Governor was commanded to consult the
Executive. Executive Council on practically every question
on which a decision was to be taken, but he could act against
the advice of a majority of the members. He alone was
entitled to submit questions to the Council, but any member
had the right to request him to submit any matter. He could
either decline or accede to such a request. In practice the
custom grew up, however, for the Governor to lay before the
Council only the more important questions connected with
the administration of the government of the Colony and such
questions as the law demanded should be dealt with by the
Governor in Council. The view of the successive Governors
very probably was that they were responsible to the British
Government, and that the Council was not so responsible.
This view was confirmed by the Secretary of State in 1883 2
when he was called upon to settle a difference between the
Governor and a section of the Council. So far there was
little real trouble, but in the negotiations over the relation
between Governor and Executive in the event of self-govern-
ment being conceded, there arose the ever-recurring native
question. From the early years of British rule in Natal the
Lieutenant-Governor had occupied the position and held the
title of Supreme Chief of the native tribes. 3 His authority
1 No. 124. * [C-3796], p. 36.
* Vide Preamble to Ord. 3-1849 (No. 141).
Natal, 1856-93 Ivii
was absolute in all matters political, while in, the administra-
tion of justice he acted through appointed deputies. Later
on his authority was formally recognised by statutory
enactments. 1 The point is that this authority was most of the
time exercised by the Governor on his own personal views.
The standpoint taken up by the colonists was that if they
were to receive responsible government this procedure should
be altered by the home Government, which ought to instruct the
Governor to act on the advice of his Ministers in native affairs
as in all other matters ; but this the imperial authorities
would not concede. The powers of the Supreme Chief were
to be left in the hands of the Governor apart from his Council,
except in the few particulars which, by the Code of Native
Law, were vested in the Governor in Council. 2 This was a
serious limitation of what is generally understood by respon-
sible government, for it affected the Colony in nearly all its
most vital interests, and towards the end of the agitation
under review the scheme was nearly wrecked on this issue.
Yet the Secretary of State remained firm on this point, though
he modified his early views to the extent of promising that
the colonial Ministers would be made acquainted with any
action which the Governor might propose to take with regard
to the natives. Mutual goodwill and co-operation could go
a long way towards saving any situation that might arise,
and he had little doubt that in every, or nearly every, case the
Governor would be able to arrange satisfactorily with his
Ministers as to any course to be adopted, although in the
last resort the decision would rest with him.
Apart from his functions as Supreme Chief, though partly
covered by those functions, were other duties of the Governor
having reference to the native problem. Up to 1882 all
British territories in South Africa were governed by the High
Commissioner, who was also the Governor of the Cape Colony.
In that year, however, the Governor of Natal was appointed
a Special Commissioner for Zulu Affairs to conduct relations
with the native tribes of Zululand. 3 It was a recognition that
the future of Zululand would be intimately connected with
that of Natal. The terms of the commission are instructive :
” We do hereby authorise and empower you in Our name and
on Our behalf to take all such measures, and to do all such
things in relation to the Native Tribes of Zululand as are
lawful and appear to you to be advisable for maintaining our
Colony of Natal in peace and safety, and for promoting the
peace, order, and good government of the tribes aforesaid,
and for preserving friendly relations with them. …” The
1 NOP. 146 and 149 (Annexure). *[C-7OI3], p. 41.
3 The commission is given in [C-3 1 74], p. 20.
Iviii Introduction
natives in Natal and those in Zululand were closely akin, and
any matter affecting one group would also influence the other.
But if responsible government were introduced in Natal the
British Parliament would object to the speedy annexation of
Zululand. An Aborgines Protection Society in London was
keeping its eye on native conditions in South Africa, 1 and the
feeling was abroad in Great Britain that the Zulus were being
harshly treated. Yet if complications arose in Zululand it was
thecolonists of Natal who would suffer, and no less an official than
the Attorney-General of the Colony gave it as his considered
opinion in 1891 that the results would be mischievous if the
government of the two countries were placed into different
hands. This was not what the Secretary of State desired.
On the contrary, keeping the direction of native affairs in
Natal under the management of the Governor, he was perfectly
logical in insisting that the same control should be extended
over Zululand.
The last point that needed clearer definition was the re-
lation of the Colony to the other countries in South Africa.
The position This necessity arose from an incident that occurred
of Natal in in 1882. The Natal Legislature being anxious to
South Africa. O p en ra ilway communication with the Orange Free
State and the Transvaal in order to give the Colony the benefit
of the transport of goods to those countries, requested the
High Commissioner for South Africa to arrange a conference
of delegates of the three countries. The High Commissioner
considered it his duty to inform the Government of the Cape
Colony of the scheme, and Natal took exception to this, stating
that its request had been directed to the High Commissioner
as such and not to the Governor of the Cape Colony. 2 Next
year the President of the Orange Free State opened the ques-
tion of fixing certain points in the boundary between his State
and Natal, addressing his communication, not to the High
Commissioner, but to the Governor of Natal, who received it
and dealt with it in the Executive Council. 3 This was pro-
bably unconstitutional, and it was not the first time that Natal
communicated directly with outside territories. On being
requested to explain what would be the relations of Natal
with the Cape Colony and the Republics in the event of self-
government being introduced, the Secretary of State gave an
evasive reply. No doubt he felt that the question would
settle itself in course of time through experience far better
than if he were to lay down fixed rules of procedure. The
Ministers of the two Colonies, he thought, might correspond
on matters not requiring the intervention of the Governors. 4
Relations with the Republics would be conducted through
1 [C-3796], p. 64. Ibid. p. 41. Ibid. p. 80. * [-6487], p. 23.
Natal, 1893-1910 lix
a High Commissioner, and the Governor of Natal might not
improbably be appointed a High Commissioner for this purpose.
On the point of established constitutional theory, however,
he was emphatic. The granting of responsible government
would not give the Colony power to make treaties or enter into
alliances with outside States. 1
Such were the views of the Colonial Office and of .Natal.
On several points they had at first been diametrically opposed,
but South Africa is the land of vice medice. Both parties
shifted their ground to a greater or less extent on various points
of difference, and even a cursory perusal of the instruments
which established responsible government in 1893 2 will show
that the programme of neither party was fully carried out in
the end. After all, many of the minor differences had arisen
from the inexperience of the colonists, and it was repeatedly
necessary for the Secretary of State to point to constitutional
law and practice in Canada, in the Cape Colony, and in Aus-
tralia. But the people were quick to learn, and by winning
the confidence of the imperial authorities in their ability and
moderation succeeded in gaining some benefits at first denied
them.
5. NATAL, 1893-1910.
For seventeen years Natal existed as a full-fledged Colony
possessing responsible government. By responsible govern-
Responsibie ment in the British Empire is generally meant that
government, the Executive Council, consisting of Ministers,
advises the Governor, and that in performing executive duties
he acts on such advice. And the Ministers, being appointed by
the Governor from the one of two or more parties which
commands the confidence of the enfranchised inhabitants, are
supposed to be responsible to the Legislature for the advice they
give. The elected members of the Legislature are obviously
responsible to their electors for carrying out certain broad
but definite principles which the majority favours.
In England it has been said in quite recent years, and truly
said, that the Crown has no option, but must, in accordance
Limitations to with established constitutional usage, act accord-
coioniai self- ing to the wishes of the Cabinet. “The advice
government. Q f ^ Min i sters is the act o f th e CrOWtt.” In
works on colonial constitutions a good deal is always said
about the advice of Ministers given to their Governors, but
nothing about the Governor’s advice to his Ministers ; yet in
matters of imperial interest if in no others such advice is
given, and it is generally effective. In such matters a wide
discretion is left to the Governor. Whilst he is expressly
1 [C-70I3], p. 38. a Nos. 126-128,
be Introduction
enjoined by Royal Instructions to guide himself by the advice
of his Executive Council, a discretion is generally given him
in those instructions to act in opposition to the opinion of the
Council whenever he sees sufficient cause to dissent from that
opinion. One reason for allowing a Governor some latitude
is that it is necessary to fulfil British international obligations.
Besides, the Governor has by his office the supreme command
of the imperial troops stationed in his colony, and no movement
of those troops can take place for any purpose whatever with-
out the sanction and authority of the Governor acting on his
unfettered personal responsibility. Such was the position in
1893 in all self-governing colonies. In Natal the presence of a
large native and Indian population was regarded as affording
a special and additional reason why the Governor should not
be too firmly tied down. And as regards Natal the royal veto
was apt to be exercised where in other colonies a compromise
would be negotiated.
But whilst a degree of freedom was theoretically reserved
to the Governor for cases of emergency, it was actually the policy
Growing ^ ^ ne white population that was eventually carried
influence of out. In 1896 a law was passed which in effect
the colonists. p i ace( i m ^g hands of the Ministers the power to
grant or withhold the franchise in the case of the Indian re-
sidents, 1 and the next year, when Zululand was annexed to the
Colony, it was laid down that the Governor in Council could
legislate by proclamation for that territory 2 during a period of
eighteen months, after which the province would pass under
the legislative control of the Parliament of Natal. This was a
complete departure from the position taken up by the Secretary
of State for the Colonies a few years earlier. After the
Anglo-Boer War a further accession of territory came to the
Colony by the addition of a strip of Transvaal territory, and
Natal was then ready to join hands with the other self-
governing colonies of South Africa.
SECTION V.
THE ORANGE FREE STATE, 1836-1910.
The narrative relating to the course of events in the terri-
tory which afterwards became the Orange Free State must be
Three main connected with the history of Natal and of the
streams of Cape Colony ; for all the emigrants came from
” on – the Cape Colony, while some of them settled for a
time in Natal. There were three main movements, at different
periods, through which the trans-Orange territory became
1 No. 129. * No. 130.
Orange Free State, 1836-1910 Ixi
populated by white men. First, there were people who with-
out discarding British authority moved across the river from
the north-eastern parts of the Cape Colony in search of eligible
pasturage during certain seasons of the year. Many of them
began to settle down beyond the river long before the Great
Trek commenced. It is important to note that this first
group settled not only in what is now Orange Free State
territory, but also to the westward, in what afterwards became
Griqualand West. The second movement took place in 1836
and subsequent years as part of the Great Trek. Keeping to
the westward of the great Drakensberg range, some emigrants
spread themselves out in the Orange River territory in the
vicinity of what is now Winburg. Others kept on moving till
they had crossed the Vaal River and its tributaries, and their
doings will therefore be described in the section dealing with the
South African Republic. Others again crossed the mountains
into Natal. These have already been discussed in the portion
of this Introduction relating to Natal. The third movement
came from Natal, which supplied settlers to the Orange River
territory during the years 1843 to 1845, when British authority
was being established at Durban and Pietermaritzburg.
Up to this time there was a Volksraad at Pietermaritzburg
and an Adjunct Raad at Potchefstroom. Subject to Potchef-
Condtiions stroom were not only the settlers to the north of
bef b h the the Vaal, but also, though in a somewhat vague
es of British* and unsettled manner, most of those who had
mie. established themselves in the trans-Orange
country. When the Volksraad at Pietermaritzburg was
abolished the lesser body continued to claim authority over
the emigrants who had not passed under British rule, and it
arranged disputes with various tribes to the south of the
Vaal River. Now there was a movement farther northward
and eastward arising from two causes : (i) Large native states
were created on the eastern frontiers of the Cape by the British
authorities, 1 who desired to remove the possibility that an
emigrant state should arise ; and (2) the Natal seaport was lost
to the emigrants through its occupation by the British. The
movement was away from British control through native chiefs
and towards the Portuguese port of Lorenzo Marques. This was
in the later months of 1844 and during the year 1845. The
most independent of the farmers were thus removed beyond
the Vaal, and the establishment of a British Resident with a
magistrate’s authority supported by a small body of troops to
the south of that river was easily accomplished. The Resident
selected in 1846 for his headquarters a spot in the centre of
l Parl. Papers, S. Africa, C.O. 42, pp. 57-61. Cf. Theal., Hist, of S.A.
1 79S~ I ^7 2 II- 481 ft., and Documents Nos. 153 and I54below.
Ixii Introduction
the country which was bordered by the Orange and the Vaal.
There the town of Bloemfontein arose. A little to the north-
ward was the town of Winburg, where a landdrost and heem-
raden were established administering justice and performing
administrative functions under the auspices of the Raad at
Potchefstroom. That the Raad to the north of the Vaal had
jurisdiction over the trans-Orange settlers explains how it came
about that in the next few years Transvaalers offered to inter-
vene in disputes between their compatriots south of the Vaal
and the British or the natives. From the moment when the
emigrants left the Cape Colony the authorities had intended
to extend their sway over whatever territory might be occupied.
It was easy to accomplish the object after 1845. Some time
was spent in attempting to reach an agreement with the
Griquas, who had been made an independent people, and with
the Basutos, who also claimed territory to the north of the
upper reaches of the Orange. When this was effected, a pro-
clamation was issued in 1848 annexing to the Queen’s
dominions the territory lying between the Orange and the
Vaal west of the Drakensbergen. 1
The question arose, by what title did the Crown hold
authority over the new Colony ? The Attorney-General of
who was to t* 16 ^P 6 to k the y i ew that the Orange River
legislate for Sovereignty, as it came to be called, was ” a
the new colony by occupancy.” This the High Com-
Colony ? . , J J , *, J .. , <,
missioner regarded as unsatisfactory, for it meant
that the Parliament of Great Britain would have to legislate
for the district. Could the matter be brought before a court
of law it would have constituted one of those delicate series
of new combinations of circumstances with which the history
of South Africa teemed during the last century. A colony
planted by another colony, i.e. by practically unopposed
settlement, is it to be subject to the legislature of the mother
colony or to that of the home country ? And if the newly
planted colony has formally declared its independence, what
are its relations towards those two ? The facts, however,
were plain enough. The greater part of the territory had
been conquered from a group of people who had previously
performed all the functions of an independent state, but who
had never been recognised as independent by the British
Government. But the High Commissioner did not base his
title on conquest or settlement. He stated that before the
immigration of British subjects into the country north of the
Orange River had commenced, ” that country must be held
to have belonged to the native chiefs” which was not the
case as regards the bulk of the territory concerned. He
*No. 155.
Orange Free State, 1836-1910 Ixiii
further affirmed that just prior to his proclamation annexing
the country he had conferred with all the native chiefs, and
that they had agreed to cede the sovereignty of the country to
him as the representative of the Crown. 1 The country there-
fore was held by cession, and the High Commissioner could
legislate on behalf of the Crown. It must be noted, however,
that the constitutional theory involved was not very strictly
observed in South Africa. Or at any rate when the facts of a
case were inconvenient they were made to conform to the
theory ; but that was a matter that concerned the Crown and the
British Parliament, and Parliament was content.
Preliminary arrangements for the government of the
Sovereignty were published a few weeks after the annexation, 2
Constitution but in the next year these were superseded by a
“British* proclamation of the High Commissioner which
Crown, gave the new Colony a constitution. 3 The
government was carried on by the High Commissioner and a
Council of five official and eight non-official nominees. The
highest of the officials, the British Resident, acted for the
High Commissioner in most matters and was the president of
the Council. For the administration of justice in the districts
the Cape magisterial system was followed, and the employ-
ment of the Roman-Dutch Law was confirmed, except as
referring to natives, who retained their own laws and customs
within certain territories allotted to them. Serious criminal
cases involving European residents were tried by a court of
three or four magistrates. The most serious offences had to
be tried by judges of the Cape Colony. The constitution was
very similar to the one existing at the Cape. One of the chief
reasons why the people had left the old Colony had been the
absence of a satisfactory system of representative government.
Since the date of their departure they had begun to enjoy the
freedom for which they longed, so that it was inevitable that
they should be discontented when the system from which they
had fled was reimposed.
In 1854 the Sovereignty was abandoned by Great Britain.
Even to-day the reasons for this withdrawal are not quite
Reasons for P^ am – Probably many motives were at work.
the abandon- Britain was drifting into war with Russia to sup-
mentofthe p Or t Xurkey and defend her Asiatic possessions.
sovereignty. *. . . J … . . ,
And as her standing army is always small, she
has generally found it necessary to order her troops from
various parts of the globe to proceed to the scene of conflict
whenever a serious war broke out. At the time of the with-
drawal there were serious troubles with the natives within
1 Parl. Papers, O. R. Sovereignty, iQth May 1851, p. 73.
a No. 156. 3 No. 157.
Ixiv Introduction
the Sovereignty. British arms had met with reverses and
British prestige had not been vindicated. The imperial
authorities were unwilling to incur heavy expense in South
Africa, and unable to supply at short notice a large body of
troops. They probably preferred, too, to regain the goodwill
of the natives. At any rate, in the face of more pressing
affairs in Europe the question of the Orange River Territory
could easily stand over for future settlement, particularly
as the country was still undeveloped and the tracts that had
fallen under direct British rule seemed to be of no great value.
Besides, a strong party in the Sovereignty was opposed to
British rule, and they had the sympathy of the settlers in the
Transvaal. Here, too, trouble might arise at any moment.
Possibly one of the strongest reasons for withdrawing was a
desire to conciliate public opinion in the Cape Colony. Very
many of the Cape burghers strongly disliked the assumption
of sovereignty beyond the Orange. Some who had no objec-
tions to the step on national and sentimental grounds were
averse because the Cape was being made to pay much of the
expense involved in governing the Orange River Sovereignty.
Such views were expressed in the Cape Legislative Council
with warmth and occasionally with bitterness. It was politic
to meet Cape views while a serious war was being waged in
Europe ; for after all the Cape Colony was throughout the
century the basis of British authprity in South Africa, and
more apparent vagaries in British policy in South Africa than
most people realise were due to a wish on the part of the im-
perial authorities to defer to Cape opinion. Whatever might
happen in other territories, it was of vital importance that
the old Colony should not be alienated. By so much as the
Government in London failed to carry the Cape Colony with
it in the steps it took, by so much would imperial interests be
jeopardised. Indeed, looking at the Empire as a whole,
imperial policy must not be criticised only by referring to the
wishes of the home Government, but by calculating the in-
fluence on it and on its governors and commissioners of the
various outlying parts.
The Bloemfontein Convention of 1854 gave complete
independence to the people residing between the Orange and
Constitution tne Vaal. They were no longer connected with
I of the Free the State across the Vaal which had been recog-
state. n i s ed two years earlier. Indeed, in 1852, while the
Transvaal people won a recognition of their independence it
had been made quite clear that they were not to interfere to
the south of the Vaal, and many of the trans-Orange inhabi-
tants had felt that they were being left in the lurch. Therefore
there was now no intention to join the northern State, and
The Orange Free State, 1836-1910 Ixv
when such a suggestion was afterwards made the High Com-
missioner set his face hard against the project. Consequently a
new State arose, taking the name of the Orange Free State,
thus realising the people’s ambition expressed in 1837 ” to
establish our settlement on the same principles of liberty as
those adopted by the United States of America, carrying into
effect, as far as practicable, our burgher laws.” 1 There was
to be a Republic then, and legislation was to be modelled
after the old Cape Laws. One legislative chamber called the
Volksraad was created, consisting of elected members, and a
President was chosen. 2 The Executive consisted of two
Government officials and three ordinary members elected by
the Volksraad. It held monthly meetings, at which the
President of the Republic was the chairman, and measures
were decided upon by a majority of votes. Field-cornets and
field-commandants were elected by the burghers. The
constitution was drawn up and adopted in 1854, and before
the end of the year laws were passed to establish Dutch as
the official language, 3 and to define the duties of field-cornets. 4
The other salient features of the Free State constitution are
given so fully below that it is not necessary to say more on
the subject. It may be pointed out, however, that in its
local government and its higher courts of justice it copied the
Cape systems rather closely. The district courts of justice
indicated an extension of the old Dutch system that had
existed at the Cape, and the elective principle was introduced
here as elsewhere. Trial by jury was established. The close
connection and almost daily intercourse of the people of the
Free State with those of the Cape Colony had the inevitable
result that many of the institutions which worked well in
the one would be introduced into the other. Besides, during
the years when British authority extended over the territory
Cape institutions had already been established, and the changes
made in those were mainly intended to popularise them. The
central government, of course, was something quite different.
Some documents are given to illustrate the manner in which
subject native tribes were governed. As in Natal, the
Government franchise was not given them, but they generally
of the natives, retained their own laws and customs administered
by their own chiefs under the guidance of a European official.
Yet, native chiefs and their councils were often apt to inflict
punishment on their followers which was in the eyes of
Europeans out of proportion with the offence committed.
For this reason all criminal cases were removed from their
jurisdiction so it would seem, though the laws are not quite
1 Quoted by Theal, Hist, of S.A . 1795-1872. ii. 316.
2 No. 159. 3 No. 1 60. 4 No. 161,
Ixvi Introduction
plain on the point and they were not permitted to inflict
corporal punishments. The criminal laws of the State were
made to apply to the natives to their immense advantage and
to the exclusion of any chance of undue favouritism or hasty
revenge on the part of the chiefs. Two other principles were
established: In the first place, native tribes were made sub-
ject to the legislative and administrative authority of the
President and the Executive Council, being thus removed
from the control of the popular assembly by the desire of
that body itself. It will have been noticed that a similar
arrangement existed in Natal, at least till the introduction
of responsible government. Secondly, the idea of segregation
was affirmed. In the reserves set aside for subject tribes no
Europeans were allowed to reside without the consent of the
Executive Council. In practice this came to mean that a
missionary, a few traders, and a few Government officials were
the only white men who went to live in those reserves. It is
not a final solution of the native problem, nor can it be adopted
everywhere, but personal observation has shown that in such
a district the natives have not deteriorated, as they have un-
doubtedly done wherever they reside among Europeans, but
have become industrious, sober, and contented, while they are
gradually being civilised and Christianised. As there has
been no familiarity between whites and blacks, the Kaffir still
respects the European and the civilisation for which he stands.
The Orange Free State had a fairly smooth career, though
in its infancy it had a severe struggle with the Basutos, who
i stability of when conquered passed under British rule. Con-
; the consttiu- sideruig the amount of trouble the Cape had with
those people and the loss of money and dignity it
suffered at their hands, it was perhaps well that they did not
fall to the guidance and management of the little State. Though
it lost to Great Britain a diamond-laden tract of territory, 1 it
never went to war with its great neighbour. Its own diamond
mines at Jagersfontein did not attract a large and difficult
alien population as did Griqualand West and the Witwaters-
rand. No industries arose. The farming community was
spared the disadvantages of the commercial and materialistic
spirit which degraded politics and retarded education else-
where. Its idealism remained unimpaired, and it will be
strange if it does not turn out to be the bearer of ideas to the
other communities in the present century. The smoothness
of its career was reflected in the stability of its constitution.
Its laws were as terse and finished as could be expected, nearly
as complete and polished as could be desired. The tiny
annual publications show that as regards its constitution it
1 No. 171.
The South African Republic, 1836-1910 Ixvii
pursued the even tenor of its way till the end and hardly
found any modifications necessary.
Casting in its lot with the northern Republic in the war
of 1899 to 1902 the Free State was annexed by Great Britain
The country on the 24th May 1900, under the name of the
6 R C rl a O ran e Ri yer Colony. 1 The officers who remained
colony its in the field subscribed to the Vereeniging Peace
constitution. Treaty two years later. 2 Military rule came to an
end by virtue of Royal Letters Patent dated 2nd August 1901,
which provided for the government of the Colony by a Governor
and by nominated Executive and Legislative Councils. These
came into operation on 23rd June 1902. The period of Crown
Colony Government ended with the publication of Letters
Patent dated 5th June 1907, which set up the system known
as responsible government. 3 There were a Legislative Council
and a Legislative Assembly for which provisions similar to
those passed for the Transvaal were enacted.
SECTION VI.
THE SOUTH AFRICAN REPUBLIC, 1886-1910.
It has been pointed out that the great constitutional lesson
which the Dutch burghers had to learn during the second
Local and quarter of the nineteenth century was to direct
personal their efforts towards securing the control of the
motives, central government, and that thereby they could
acquire the local liberties after which they hankered. Cen-
tralisation versus localism, the Colony against the District, the
State against the Individual that was the issue at the Cape.
Before the farmers could learn the lesson fully several thou-
sands of them left the country, carrying with them the ideals
which had become a part of their life. Many of those who
departed had not possessed the patience to learn, and many
did not consider the lesson worth acquiring, for it would be
useless and untruthful to say that national antipathies did
not act as an incentive towards the exodus of the thirties.
But surely when the emigrants arrived to the north of the Vaal
national rivalries had ceased for the time being. What re-
mained was the sense of personal dignity and importance.
For a few years this lay in the background. In the face
of threatening dangers the community united to clear for itself
The rise of habitable regions where marauding natives should
three not trespass. When they believed this to have
republics. ^ een accomplished, and after they obtained a re-
cognition of their independence, 4 the different localities that
1 No. 172. No. 173. s [Cd. 3526.] * No. 177.
Ixviii Introduction
had been settled by various parties at different times drew
away from each other, with the result that five years elapsed
before a satisfactory constitution could be established. And
even while that instrument was being adopted by a section
of the community there were no fewer than three republics
to the north of the Vaal. In 1858, however, two of these, Zout-
pansberg and the South African Republic the latter name
had been adopted in 1853 * joined hands, while Lijdenburg
maintained its independent position for two years more, and
was eventually brought into the fold by an agreement 2 which
contained a series of compromises admirably illustrating how
impossible it was to overcome the feelings of local and personal
independence.
The constitution which was finally accepted by all the
burghers of the Transvaal territory was a lengthy document. 3
Theconstitu- With the Grondwet of the Orange Free State and
tion adopted, the demands for constitutional liberties made by
the people of the Cape and Natal it forms a series for the study
of the political theories of the Boers of South Africa. Natu-
rally they drew up the provisions with their experiences of
earlier years very vividly before them. What they had dis-
liked in the Cape Colony they discarded, what they thought
had suited their needs they retained whether it was some-
thing quite old or something very novel to their experience did
not matter. The whole document becomes one of the most
interesting instruments ever published in South Africa if it
be read with this obvious fact in mind. There was, e.g., the
insistence that a member of the Volksraad should not be a
Government official a protest against the position that had
existed at the Cape since 1652. The executive was to be
responsible to the legislature. Treaties and alliances were
not to be made without the consent of the legislature., The
State was to assist in maintaining the Church. Courts of
landdrosts and of landdrosts and heemraden were erected to
administer justice, these officials being selected in the case of
the chief magistrates by the Executive Council, but subject
to the approval of the people, and in the case of the heemraden
by the outgoing heemraden, but again subject to approval
by popular consent. A High Court of Justice consisting of
three landdrosts was appointed to go on circuit. This, and
the adoption of a jury system, were two expedients copied
from institutions established at the Cape under British rule.
As in the case of the Free State, the natives were totally ex-
cluded from the franchise, and military officers were elected
by the burghers.
1 Nos. 1 79 and 180. * No. 188.
8 No. 182′.
The South African Republic, 1836-1910 Ixix
But the most significant feature about the constitution is
the reiteration of the theory that the people were the source
The people of all authority. The people will have no equality
the source between blacks and whites. The people will have
of authority. no s i avei y_ j^e p e0 ple entrusts the task of legis-
lating to the Volksraad, the government to the Executive
Council, defence to the army, the administration of justice
to landdrosts and jurors. When a law is passed, it cannot
as a rule be enforced until the people has signified its assent.
When a person is arrested for crime this is done in the name
of the people. Judgments are pronounced in the name of the
people, and when proclamations are issued, they end with the
words : God save Land and People.
Another feature of the constitution was its peculiar flexi-
bility. Being the fountain of all authority the people did not
Flexibility bind themselves down to any rigid measures. It
of the was well for them that they did not, for they would
institution. g a – n ^ ti me by education and experience. Some
of the clauses could be interpreted in more ways than one,
while situations could quite easily be imagined that were not
covered by the provisions, and very often no adequate arrange-
ment was made for carrying out the rules laid down 1 or for
punishing any breach of those rules. As a result the custom
grew up of modifying the provisions in any respect deemed
necessary by a resolution of the Volksraad passed by a majority
of votes taken at an ordinary session of that body.
A third point of note was the absolute supremacy of the
legislature in the constitution. This was laid down in express
Supremacy terms in 1859. Every Court was to observe all the
of the resolutions of the Volksraad as law, and no Court
was to express an opinion as to the validity of any
law. 2 The law was as explicit as it could be, and the Courts
observed it for some thirty-seven years. Then an attempt
was suddenly made by the High Court to set it aside and estab-
lish new precedents. 3 The effort failed, and the incident,
though it aioused a good deal of discussion and some political
agitation outside the Republic, mainly served to bring to
light the sound common-sense arrangement of the constitution.
The same arrangement is one of the characteristic features
of the British constitution, for an English court never thinks
of declaring a law passed by the Imperial Parliament opposed
to the constitution. The absence of a similar provision in the
United States constitution has in past years led to much
trouble.
1 See, e.g., No. 225.
a No. 185.
8 See No. 231.
Ixx Introduction
As the chosen man of the people the President was in a
very strong position. He became the leading figure in the
The executive as well as in the legislature though he
President, $& no t select his executive, had no veto on legis-
lation, and could not dissolve the Volksraad. His patronage
to office, too, was subject to the approval of the legislative
body. The President’s influence was due to the stress and
danger to which the country was always exposed. The fact
that the holders of the office nearly without exception em-
bodied the passionate love of independence which throbbed
through the people and consistently acted up to it, explains
the confidence they placed in him and the large powers they
delegated to him.
The government of the country being entirely under the
influence of the burghers, the subject of local government was
Local not given so much attention as had previously been
government, bestowed on it. The Field-cornets became elective
ihe^eace ^ LC ^ S 1 instructed to maintain the peace in the
several wards of each district, to register the names
of electors, to hold inquests, to regulate the conduct of natives
in their vicinity and to perform important military duties in
time of war. In 1870 Justices of the Peace were appointed
for the better maintenance of the laws. 2 They were to be of
two classes, corresponding pretty closely to the Justices who
assisted in the government of England during the first and the
second half of the fourteenth century. The one class was
empowered to take evidence on oath, to make arrests on such
evidence, and to conduct preliminary examinations. They
had to hand over prisoners to the public prosecutor of their
district to be tried by the courts of law. They could further
bind over persons to keep the peace. The second class con-
sisted of men who, with the title of Resident Justices of the
Peace, were stationed in the smaller towns where there were
no landdrosts. These could hear and determine minor civil
and criminal cases. All these officials were an exception to
the elective principle, for they were appointed by the Presi-
dent of the Republic ; but, as was the case with other officials,
they had to take an oath to be faithful to the people of the
Republic. District Councils 3 and boards of town manage-
ment arose in course of time.
The division of the Republic into districts and field-
cornetcies had been accomplished with a view to purposes of
defence. These subdivisions were managed for some time by
the Executive Council with the assistance of landdrosts, field-
cornets, market-masters, and pound-masters. Minute pro-
visions were made in 1876 for men going on military service. 4
1 No. 18.3. 2 No. 189. 3 No. 202. 4 No. 194.
The South African Republic, 1836-1910 Ixxi
The President could call out a commando to defend the
country or quell internal risings, but unless the danger was
imminent he was required to summon the Executive Council
and take its advice. Most probably he was to decide in each
case whether the danger admitted of delay, but in any case
he had afterwards to justify his action to the Volksraad. All
male inhabitants, a few classes excepted, were liable to serve if
they were between the ages of sixteen and sixty.
Such in very broad outlines was the constitution when in
1877 the Republic was annexed to the British Empire. 1 The
Theannexa- annexation period was not marked by any con-
tton 0/1877. stitutional changes of permanent importance.
The government was a despotism}; but in 1881, when
the inhabitants rebelled after futile missions to England
and petitions for the restoration of independence, the Govern-
ment in London permitted the State to be re-established,
though under British suzerainty. 2 For three years the people
chafed under the control which such suzerainty implied, till
it was virtually withdrawn as a result of friendly negotiation,
while the right was reserved for the British Crown to control
the treaty-making power of the Transvaal. 3
In 1885 gold reefs of great richness were discovered in the
territory which up to that time had been devoted only to
n . pastoral and agricultural pursuits. The Dutch
Discovery , , . r i t. u JM
of gold and burghers were not the class of people who could readily
straTers * urn ^ e i r nan ds to gold-mining, so that the work
fell to strangers, many thousands of whom streamed
into the country. The industry grew with almost miraculous
rapidity. It brought much wealth to the country and to the
miners. The revenue went up by leaps and bounds. But it
also brought a new factor into Transvaal politics. The
immigrants began to agitate for political liberties. At first
the country turned a deaf ear. When the Government was
requested by its friends in the Cape Colony to arrange for the
representation of the newcomers in the Volksraad it replied
that the districts where the mines had arisen all had their
members. This was really evading the question, for those
representatives were being chosen by the old inhabitants,
while the immigrants did not possess the franchise. Round
the franchise question then the agitation centred.
When the constitution was adopted in 1858 the white
population was practically homogeneous, and as all the people
The had taken an equal share in opening up the country
franchise. a ii male white inhabitants over twenty-one years of
age could vote at all elections. Thereafter all such persons born
in the Republic became enfranchised in the ordinary course
1 Nos. 196 to 199. 2 Nos. 200 and 201. 3 No. 204.
Ixxii Introduction
of events on becoming of age. Immigrants became burghers
after one year’s residence. The latest Act that laid down this
rule was the Franchise Law of 1876. l Such immigrants were
further to be possessors of immovable property no particular
amount was demanded and they had to take an oath to be
true to the people and the Government of the Republic, to
obey its laws and to maintain its independence. This arrange-
ment was not regarded as unsatisfactory, as there were as yet
few people to complain; but now the annexation came, and
the direct result of this step was that in 1882 the franchise
was limited to those who had resided for five years. 2 Such
was the position when gold was discovered and the city of
Johannesburg began to shoot up on the Witwatersrand, a little
distance to the south of Pretoria.
A small concession was made to the mining industry in
1887 when it was laid down that public diggings could be
The con- erec ted into separate electoral divisions, thus re-
cesstons of moving the chance of swamping the mining vote
1887. ky fa e vo t es o f farmers in the surrounding wards.
But this was only patchwork, as the miners and their em-
ployers could only vote if and when they had been registered
as residents for five years. 3 It is obvious that the founders
of the Republic were afraid that if the rapidly increasing
number of immigrants were given the franchise they would
soon be able to subvert the existing republican form of govern-
ment and pass measures oppressive of the farming community,
the Dutch language, etc. They were very probably mis-
taken. But the real fear was that the immigrants in the
Republic would eventually unite with an outside power to
deprive the country of its independence.
A further step in the direction desired was taken, however,
in 1890. This was the greatest change that the Grondwet
underwent while the Transvaal preserved its
owe^sions ex j s t ence as a Republic. Two laws were passed
The new which must be read side by side. 1 Instead of the
tuhon. un i camera i legislature which had existed till now
two houses were erected, the First Volksraad and the Second
Volksraad. The members of the First Volksraad were to be
elected by persons who had already obtained the franchise
or were still to obtain it by virtue of having been born in the
country. Voters had to be sixteen years of age. Obviously
this body would be practically the same as the old Volks-
raad. The electors of the Second Volksraad were persons
who possessed the franchise for the First Volksraad and also
other white male inhabitants of sixteen years of age who
1 No. 193. ? Law No. 7 of 1882.
8 No. 214. 4 Nos. 2ipand 220.
The South African Republic, 1836-1910 Ixxiii
had resided for two years, who took an oath and paid 5.
Anyone who for ten years was an elector of the Second Volks-
raad could become an elector for the First. This second body
could legislate on matters relating to the mining industry,
roads, the postal service, patents, companies, bankruptcy,
civil and criminal procedure, and such other matters as the
First Volksraad might at a future date delegate to its care.
The First Volksraad could ” deal with ” any law passed by
the Second Volksraad. The language of the Act is so vague
that it could probably be regarded as within the competency
of the First Raad to approve or amend or reject a law passed
by the Second. If no change or rejection was made by the
First Volksraad, and if, further, the President decided to
publish such a law, then it was to take effect. No provision
was made in the event of an amendment by the First Volks-
raad whether the law was to be referred back to the Second
Volksraad or whether it was to take effect as amended. All
that can be said in favour of these arrangements is that
immigrants could get the right to vote after two years’ resid-
ence, and that the body which they were to assist in electing
could initiate legislation on some very important matters and
that the other house presumably could not.
In 1891 J and 1893 2 the differences between the two kinds
of franchise were further specified. Persons who possessed
TWO kinds the franchise in 1890 and those receiving it by right
t franchise. o f bi r th could vote for Field-cornets in their re-
spective wards, for Commandants and members of both Volks-
raads in their respective districts, and for a President and a
Commandant-General throughout the Republic. Those who
became burghers by naturalisation, on the other hand, could
only vote for Field-cornets, Commandants, and members of the
Second Volksraad. And it was now left to the Government
to decide in the end whether papers of naturalisation should be
granted to any applicant or should be withheld. To the strict-
ness of this law was added an unwonted rigidity, for it was laid
down that no extension of the franchise could be effected
unless the plan was published beforehand for one whole year.
Even then it could be adopted only if two-thirds of the old
electors agreed to it. The burghers of the Transvaal and
their friends held that further privileges could not be given
to the people of foreign birth because they were intriguing
with persons outside the Republic and aimed at the destruc-
tion of the country’s independence, while the other side main-
tained that the restlessness of the alien population was due to
the withholding of constitutional rights.
1 Law No. 13 of i8gi.
2 No. 224.
Ixxiv Introduction
Matters remained on this footing till, during the closing days
of 1895, the Transvaal was invaded by a force operating from
The raid of the western border which intended to join hands
^95-96 m/o ^th disaffected people in Johannesburg with the
the Republic , . .T * . 5, . ~
andtte object of overthrowing the Pretoria Govern-
resuits. ment. The effort failed. One of its results was
that a law was passed giving the Government power to expel
persons who were dangerous to the public peace. 1 Another
result was that a close alliance was formed between the Orange
Free State and the South African Republic. 8 No further ex-
tension of the franchise was made to the immigrants. Most
of them were British, and Great Britain having espoused their
cause a war broke out in 1899. On the ist September of
the following year the country was annexed to the British
dominions, receiving the name which had previously been in
general popular use, the Transvaal. 3
By a commission dated the 8th October 1900 the High Com-
missioner for South Africa was appointed to be Administrator
The Trans- of the Transvaal and of the Orange River Colony.
vaai becomes Military rule in the Transvaal came to an end on
a British . ~ ,1 -i, I-ITJ TA
Colony, its 2ist June 1902, the date on which Letters Patent
constitution. we re published, 4 providing for the establishment
of the office of Governor. Nominated Executive and Legis-
lative Councils, both consisting of the same persons, were also
created by this instrument which was dated 2nd August 1901.
It was revoked by fresh Letters Patent dated 23rd September
1902, which provided for the government of the Transvaal
on similar lines and also constituted the office of Lieutenant-
Governor.
But in the Peace Treaty it had been agreed that as soon as
possible representative institutions leading up to responsible
Responsible government should be introduced. As a step
government. m this direction it was intended to provide for
the constitution of a partially nominated and partially elected
Legislative Assembly, and Letters Patent to this effect, dated
I3st March 1905, were actually issued ; 6 but a general election
in the United Kingdom resulted in a change of Ministry, and
the outcome was that before an election could be held in the
Transvaal further Letters Patent were issued on the 6th
December 1906, conferring full responsible government on the
the Colony 6 and revoking the instruments of 23rd September
1902 and 3ist March 1905. This is an interesting example of
the way in which the Imperial Executive can sometimes em-
Eloy prerogative powers to overcome the opposition of the
igislature, for it was believed that the House of Lords was
1 No. 228. Law No. 1 6, 1898. 3 No. 234.
4 Trans. Govt. Gaz. Extraord. [Cd. 2400.] e [Cd. 3250-]
The Union of South Africa Ixxv
hostile to the grant oi responsible government at the time. The
Letters Patent were published in the Transvaal Government
Gazette on the I2th January 1907. There were two chambers,
a Legislative Council and a Legislative Assembly. The Council
consisted of fifteen members nominated in the first instance
by the Governor. Vacancies were to be rilled by the Governor
in Council. In the Legislative Assembly sat sixty-nine mem-
bers elected by white male British subjects possessing certain
qualifications. It was provided that in the event of disagree-
ment between the two chambers of the legislature, the Governor
could convene a joint session, when matters at issue would
be decided by an absolute majority of votes. The Transvaal
had but a brief period of responsible government, for three
years later she cast in her lot with the rest of South Africa in
the Union of 1910.
SECTION VII.
THE UNION OF SOUTH AFRICA.
A glance at the map of South Africa suggests that the
country is by nature suited to form a single political entity.
– , ~. To bring about a union or federation of the various
r-uriy ejJOTiS , , i -i i r
to establish parts in some way was the ideal of many men on
South H AMca *k e S P* an ^ ^ i m p er i a l statesmen in London.
‘ Numerous unionshad been conceivedon South African
soil and several had been put into effect. The earliest union
actually established in South Africa dates back to the year
1840. Three different groups of persons who were engaged
in evolving three separate governments formed what may be
correctly called a federation. The people at Winburg acquired
no legislative body, but fell under the control of a Raad to the
north of the Vaal, which in turn performed legislative and
executive functions under the auspices of a Volksraad which
met in Natal. The Drakensberg barrier made the close
association between Pietermaritzburg and the towns to the
west impossible, and it has greatly influenced the subsequent
history of those parts. Not many years passed before a second
union was attempted. When, after the middle of the century,
the Free State and the Transvaal arose as independent re-
publics a party grew up in each State which agitated for a
union of the two republics. In 1857 recourse was nearly
had to war, but the attempt failed, thus making the achieve-
ment more difficult than ever. Whilst the movement was
going on a suggestion for co-operation between the various
governments came from the Volksraad of the Orange Free
State. In 1854 it requested that the governments in South
Ixxvi Introduction
Africa of European stock should assist each other in unavoid-
able wars with the natives. 1 Nothing came of the proposal
at the time, but it is interesting to note that on subsequent
occasions when the subject of federation was discussed the
native question always figured very prominently. During
that decade there were several agreements of union between out-
lying communities to the north of the Vaal River. By far the
most remarkable of these was the union between the South
African Republic and the Republic of Lijdenburg in 1859*
As regards the British territories it will be remembered that
Natal was at one time united to the Cape Colony, but more as
an ordinary district than as a partner in a large governing
concern. Sir George Grey lost his office- as Governor for re-
commending a confederation scheme at a time when it was not
favoured by the Colonial Office. But the idea survived none
the less. Long before the Government in London adopted the
plan of federating the states and colonies it was discussed in
the Cape colonial press, the Dutch inhabitants taking the lead
in the matter. In 1875 came Lord Carnarvon’s famous dispatch
inviting the colonies and states to a conference to discuss the
possibility of a closer political union. 3 The Cape Colony
favoured the principle, the President of the Orange Free
State seemed likely to bring round his Republic, and Natal was
an enthusiastic supporter. The South African Republic op-
posed. It was brought under the British Crown in April 1877.
In the middle of May 1877 the Cape Ministry drew up a minute
which shows that they were lukewarm. 4 Before the end of the
same month the Volksraad of the Orange Free State in the
most courteous of terms declared itself completely opposed to
confederation. 5 The scheme was wrecked for the time being
and the permissive South Africa Act 6 passed by the Imperial
Parliament to provide for the union under the British Crown
of any two or more of the colonies or states could not be
carried into effect. In 1886 another attempt was made to
unite the Orange Free State and the South African Republic.
A resolution was brought before the Volksraad in each
country proposing to appoint commissions to negotiate with
regard to an ultimate union between the two Republics. 7
The Free State rejected the proposal on the ground that by
such a union its independence would be endangered by reason
of the British suzerainty under which the older Republic was
alleged to stand. The idea of union was a very familiar one
to South Africans when out of the mists of war the new century
1 Letter of the Secretary of the O.F.S. Govt. to Sir George Grey, i8th
Nov. 1854 ; MS. in P.R.O., C.O., 48 7361.
2 No. 188. 3 [C-i244], p. i. [6-1980], p. 14.
‘ Ibid. p. 1 8. 8 40 and 41 Viet. cap. 47. T No. 210.
The Union of South Africa Ixxvii
dawned on them. 1 Up to the time, with the exception of
individual men of non-indigenous stock like Sir George Grey,
Lord Carnarvon, and Cecil Rhodes, the movers towards the
unification of the white peoples were in the main of Dutch
extraction. They joined forces across the Drakensberg in the
early years, they amalgamated to the south of the Limpopo,
they tried to join hands across the Vaal, they worked for a
united Cape Colony from 1836 till 1854, an d m T ^7 2 they pre-
vented the splitting up of the Cape. There was very little
coercion in these notable achievements, and in no case was
the foundation laid in the blood of their fellow-countrymen.
During the early years of the twentieth century the situa-
tion was different to the one of 1875 in nearly every respect.
All the territories were British. The desirability of
between^arfy uniting was pointed out to the various colonies, but no
and later Act was passed at Westminster until each colony had
efforts. k een given the fullest possible freedom to accept or
rej ect the suggested union. The delegates sent to the Convention
at which the subject was discussed were not designated by the
Colonial Secretary, as had been the case in the Carnarvon plan,
but were appointed by the uninfluenced choice of the colonies
themselves. During the efforts to work out the earlier scheme
an unsympathetic Ministry at the Cape had been dismissed and
another substituted. In Natal a part of the constitutional
powers vested in the Legislative Council had been suspended,
and the body had been radically reconstituted by adding to it
eight nominee members and requiring that all laws imposing
taxation should be carried by not less than two-thirds of the
members present, the operation of these arrangements being
limited to five years. The Colony had further been promised
responsible government when and if they should federate
with other territories. Now, however, there was no curtail-
ment of colonial liberties or colonial independence of action.
On the contrary, as an admittedly necessary preliminary to
union the two newly conquered countries were given responsible
government. Then the colonies worked out a scheme among
themselves and all that was done in London was to sanction
and register their wishes.
From the point of view of the imperial authorities the
desirability of a union is obvious. Such union had already
Reasons why been achieved in the North American Colonies
imperial an( } j n Australia. Both these events were re-
statesmen , , , -, . ,
desired a garded by many as necessary steps towards the
union. federation of the Empire into a great Commonwealth
of British dominions. For purposes of defence, too, a single
1 Vide also the proposed Customs Union and the Postal Union of 1884,
Nos. 206 and 208.
Ixxviii Introduction
central government could act more energetically and effect-
ively than a number of comparatively weak communities.
Moreover, the unification of the colonies would be the surest
means to counteract any tendency to separate that might
remain in any of them. For the rest, people in England were
watching the development of South Africa with lively interest,
and the adoption of so desirable a measure was almost uni-
versally favoured.
While these considerations appealed to statesmen in Great
Britain and South Africa alike, there were, as might be ex-
pected, many reasons which had special weight in the
s^thA/rkans minds of the peoples most nearly concerned. The
desired to country is a land of idealists. The task of making
umte ‘ a strong and happy nation caught the imagination
of the young. The old were worn out with the strife of the
previous century. The eye was turned to the future. In a
young country with immense possibilities and opportunities
the imagination runs little danger of becoming narrow. There
is always fresh nourishment to feed it with. And the bulk of
the people had for centuries been looking beyond the horizon
with an overmastering desire to launch into the unknown.
They now saw to the northward huge unsettled tracts of land
which awaited occupation and development. The native
problem loomed large on all occasions when the subject of
union was mentioned. There was no danger that a serious
native war would have to be faced, but the numbers of the
coloured people were increasing very rapidly and they would
want to expand. Their old habits of life needing large areas
to grow their mealies and graze their cattle would have to be
modified. Many of them were being educated and the systems
of government would have to be readjusted. It was eminently
undesirable that there should be marked differences in the
manner of treating persons of the same blood and col our, per-
haps in adjoining areas. A consistent, large and enlightened
policy was needed and it could only be worked out by
employing the most capable men in the whole country
and backing them with the authority of some central
power.
There was considerable scope for assimilating the laws of the
various colonies in some respects. It might for instance be
regarded as a joke when you heard that your friend had crossed
a river for a few hours to get married in the Cape Colony because
he wished to evade the marriage law of the Orange River
Colony, but physiologists and eugenists would doubtless be
shocked by a contract which sanctioned consanguinity ; and
they would probably urge that backward colonies should not
be permitted to frustrate the good intentions of others that
The Union of South Africa Ixxix
were more advanced. The laws governing higher education
needed the introduction of rational principles of training and
examination, for the University of the Cape of Good Hope was
only an examining and a degree-granting body, the most indis-
pensable qualification of its examiners being that they should
know nothing about the candidates beyond their powers of
assimilation. The other colonies fell under the wing of the Cape
University. The decision of the Transvaal, taken before the
South African War, to erect its own University had had no
chance of being carried out.
On economic grounds the argument in favour of union was
also a strong one. It was necessary within certain limits to
equalise taxation, to get an equality of customs duties for all
the colonies, to end the old rivalry between the Cape and
Natal seaports, to work the Government railways on a com-
mon basis and so avoid the recurrence of inter-colonial dis-
putes. A considerable saving in the expense of administration
could be effected, if only by avoiding the repetition in each
colony of all the necessary ministerial offices and heads of
departments. The combating of diseases in fruit, cereals, and
stock would supply a very extensive field of labour which
could be best performed by one Government with a consistent
policy and the power to enforce it.
Some of the outstanding provisions of the South Africa
Act of 1909 l may be briefly noted. The legislatures of the
The con- ^ our c l n i es > the Cape, Natal, the Orange River
of Colony it was now renamed the Orange Free State
an< ^ *^ e Transvaal, ceased to exist and their powers
were vested in the Union Parliament. This body
consisted of two houses, the Senate and the House of Assembly.
In each of the colonies, which now received the name of
Provinces, a Provincial Council was erected. It had power
to make ordinances with regard to direct taxation for pro-
vincial purposes, to elementary education, to municipal and
divisional councils, and a number of other specified subjects
of less importance. All other matters were delegated to the
care of the Union Parliament. The Provincial Councils each
had an Executive Committee just as the Union Parliament
had its Executive Council. The King was declared the supreme
head, and on his death his heirs and successors. It is interest-
ing to note that for ordinary purposes there is no mention
of the Crown, or of the King in Council, as had been the
practice in earlier constitutional Acts passed in the colonies.
The phraseology was copied from the Act establishing the
Commonwealth of Australia. It is the King who may veto
legislation. The King in Council, as far as the South Africa
1 No. 235.
Ixxx Introduction
Act is concerned, means the King or his representative, the
Governor- General acting with the advice of his South African
Ministers. If his South African Council were to tender one
kind of advice with regard to South African affairs and his
Privy Council were to advise an opposite course the funda-
mental relations between the Union and the rest of the King’s
dominions would be affected. The letter of the law does not
sanction the view that the South African democracy is subject
to the democracy of the United Kingdom ; but constitutional
theory based on many decisions of the Judicial Committee
has established the fact beyond controversy. The theory
that the advice of the Ministers in England is the act of the
Crown does apply to the self-governing dominions, though
many attempts are being made in the dominions to question
the doctrine. It is true that it has not been definitely or
successfully challenged up to the present perhaps because
it has not been definitely formulated with reference to the
dominions. On the outbreak of the European War, for
example, an order was issued from London prohibiting the
export of copper from South Africa to foreign countries, but
that was a temporary measure calculated to meet common
imperial needs in a time of great stress. It was probably taken
after consultation with the South African Government, and
may have been issued to assist that Government in its diffi-
culties with Parliament and country. Still, in normal times the
indications are that the South African Parliament would wish
such an order to be registered by itself before it could take
effect ; and the matter will doubtless settle itself in the
future if it is not complicated by tactless egotism on either
side.
The smooth working of the constitution depends very
largely on the ability and tact of the Prime Minister. Some-
Extensive body has said in days gone by that the Prime
e w prlme Minister o * tne United Kingdom has more real
Ministeand power than the Czar of Russia. In his own country
the Cabinet, and as regards internal affairs a colonial Prime
Minister’s authority is nearly as great. And throughout the
Empire the authority of Prime Ministers tends to increase.
Centralisation has gone a long way. It is obvious that under
the system of cabinet government the popular control exer-
cised over the Prime Minister and the rest of the executive
is feeble and slow. The referendum as it exists in Switzer-
land would hardly help the people in directing administrative
measures or controlling the management of affairs generally
unless some machinery were devised to give them the power
to annul as well as to sanction or reject. The Cabinet has
certain arbitrary powers which are exercised by issuing orders
The Union of South Africa Ixxxi
and, it sometimes publishes proclamations. It tends to
become an autocracy in practice if not in law. But the South
Africa Act gives legal sanction to this tendency in certain
matters. The Schedule, which is one of the most interesting
portions of the instrument, provides that when any of the
native territories still under the Crown is taken over by the
Union, the Prime Minister shall be charged with the adminis-
tration of such territory. He will be advised by a commission
of three or more members appointed by the Governor-General
in Council. Here obviously the term Governor-General in
Council means the Governor-General acting with the advice of
his South African Ministers. The extension of the Cabinet’s
powers has results of two different kinds. It limits the chance
of control by the electors, but it also narrows the authority
of the imperial representative. Prior to the date of Union in
the three younger colonies native affairs were much under the
influence of the Government in London. Provision was
made in the Act of 1909 that at some future date that influence
should cease. But at the same time those parts where the
natives were most numerous and had all along enjoyed special
privileges of their own were placed beyond the control of
the popular legislature. This was following the arrangements
of the old Free State Republic. Indeed it was a principle
which had been recognised as sound throughout South Africa,
but which had in the other parts been carried out in a more
half-hearted manner.
That suggests an inquiry as to how far in other respects
the Act of Union was a consummation of the earlier history of
The Union * ne various parts of the country, to what extent it
does not was a development of earlier constitutional arrange-
r any e$ real nients. Most of the great principles of demo-
comtitutionai cracy were retained : the elective principle in the
advance. var i ous governmental bodies, in a certain degree the
responsibility of the executive to the legislature and of the
legislature to the electorate, in a large measure the certainty
that in administering justice the judges would pronounce
sentence according to the laws without fear or favour. Except
for one large and important body of people, the mining popu-
lation in the Transvaal, who had naturally received the
franchise on the introduction of responsible government, no
person received constitutional liberties which he had not
enjoyed for very many years. Where the natives were al-
ready enfranchised they retained their rights. In other places
they were left in their old situation. Every person became a
small unit in a great whole and his power to influence the
direction of his concerns was greatly lessened. In the Trans-
vaal and the Orange Free State the people had in 1902 lost
Ixxxii Introduction
their control of foreign policy and the right to sanction or
veto the appointment of public officials. Everywhere local
traditions and individual tastes were limited in their scope.
Yet the idea of union was a grand one. Political parties in
each colony were anxious to amalgamate with corresponding
parties in the others. Union would give a better chance to
consolidate and to expand, it promised to advance their
material prospects, and the people decided hi so far as they
were hi a position to decide at all that it would be to their
advantage to unite.
The Union was a very real one, much more so than in
Australia or Canada. It may seem strange that the delegates
Centraiisa. w h had the drafting of the Bill went to such
tion pushed extreme lengths in the process of centralisation,
very far. f or manv o f them must have known that the
early history of the country had brought to light strongly
local and individualistic tendencies. Possibly it was with
set purpose that they proceeded to counteract those tendencies
as being subversive of real strength and unity of purpose,
though this could hardly have been the attitude of the
majority of the delegates. It should be noticed, however,
that during the previous fifty years the old individualism
had been considerably weakened by different forces that
operated in each of the countries. That is the only sense in
which the Union of South Africa is the natural outcome of its
previous history. Yet individualism had by no means dis-
appeared, as is witnessed by the history of South Africa’s
troubles since 1910. But the real explanation probably
lies therein that at the time of the meeting of the delegates
there were brought under discussion the constitutions of
several confederations : the Swiss, the German, the American,
the Canadian, and the Australian. The weak points of each
of these were pointed out, and the delegates, several of whom
were lawyers, must have been struck by the amount of litiga-
tion that had been going on in Canada and particularly in
Australia arising from the division and distribution of powers
between the central and the local legislatures. Except in a
few matters they decided that the Provincial Legislatures
should occupy a position quite subordinate to the Union
Executive and the Union Parliament. As the Executive
Council may sanction or reject provincial ordinances, it is
very unlikely that disputes leading to litigation will arise.
That is another illustration of the great powers reserved to
the central executive. It is further obvious that no matters
will be referred to the Privy Council, so that imperial influence
must be greatly weakened. More than that : no appeal from
the Supreme Court of South Africa to the King in Council is
The Union of South Africa Ixxxiii
allowed, except when the King in Council grants special leave
to appeal. Colonial autonomy has been carried much fur-
ther in the Union than in either of the other two great
Dominions.
Everything points to the likelihood that the native problem
will always be with political workers in South Africa. Pre-
The future judice of colour and race is very strong, but it is
of the natives. m some measure understandable if we remember
that Europeans have complicated the matter by employing
the natives on more than one occasion to fight Europeans.
But it will be wise to make a real effort to bury the past for
the sake of winning a brighter future. There can be no
intention to place the bulk of the black-skinned races per-
manently in a position of subordination, for that would be
nearly tantamount to a form of slavery. The tendency is
to-day to reserve tracts of country for occupation by natives
wherever that is still possible. The whole history of the last
century seems to suggest that for the present that scheme is
the only way to prevent the undesired contact between whites
and blacks, which has not been beneficially felt by either, but
least of all by the natives. There should be no hurry in try-
ing to colour the native with the civilisation of the European
by the agency of uncontrolled association. There are highly
educated natives who are the ideal teachers of their own
people, and perhaps the Union Government will assist in the
training of others. When competition arises between natives
and Europeans, the white man may well be left to fend for
himself. In the meantime there seems to be no reason why
in the native reserves the people should not be given municipal
government on the same lines as those laid down for the white
population. The natives are backward, it is true, but they
will be backward only so long as the white men choose to keep
them so. If their sense of responsibility can be called forth,
half the battle will be won. In the end they must take
their place side by side with other citizens of the Union,
but it is not necessary to remark here on all that that
will involve, for it lies in the remote future, when the out-
look of South Africans of European extraction may have
altered.
As South Africa is by no means a sovereign state it is
almost impossible not to theorise at the present time with
South Africa’s re g ar d to the future of her constitutional position
future within within the Empire. The world is moving so
the Empire, j-apj^jy an( j the conservative instincts of humanity
are being so rudely shaken that the reception of ideas is accom-
plished with unusual readiness. In the Empire there are
two classes of thinkers who desire to take advantage of this
Ixxxiv Introduction
unwonted receptiveness, both including men of the highest
ability and political wisdom. One class is moving for the
federation of the Empire. The exact form has not been
agreed upon, and many different paths are still being pointed
out ; but eventually some scheme that finds general favour
will be arrived at. The other class stands for the maintenance
of the present situation and the preservation, or perhaps even
the extension, of the constitutional liberties already granted.
The former class desires a return to protection in trade and
advocates an imperial customs union, while the latter pleads
for free trade and the unrestricted association with the other
nations of the world. All matters with which the citizen of
the Empire is concerned are involved in the speculations of
the two opposing schools, questions of nationality, language,
economics, domestic politics, foreign relations, travel, educa-
tion, science, art, and man’s outlook on life generally. Pushed
to their logical conclusion one view leads to a highly organised
Empire which will be all in all to itself, the other brings its
supporters to exchange goods and ideas and ideals with other
nations of the world and may conceivably lead to the control
of foreign policy by the people and even to internationalism,
in one form or another. But it is not easy to see very far
ahead and, perhaps fortunately for its supporters, it is seldom
possible to push a view to its extreme limits at any one epoch.
After all, we can influence the rate or direction of our growth
only very slightly, and our premeditated action is more likely
to spoil than to improve. The one view is based on the assump-
tion that the colonies are bent on secession and aims at restrain-
ing them. The other is grounded on the belief that the
colonies only desire the greatest possible degree of freedom
which is compatible with the maintenance of the imperial
connection.
The student of history keeps wide awake to these dis-
cussions and he is chiefly interested in the academic
Thesugges- as P ec * f the disputations, for he sees before him
tion for im- constitutional history in the making. But he
penal federa- observes that in South Africa the agitation for
tion leads to . . ,
counter- imperial federation has had the result of raising a
suggestions. CO unter claim curious perhaps and uninstructed in
itself, but not entirely inexplicable under the circumstances
that when at any future time the imperial authorities get in-
volved in a war it should be the right of any one of the dominions
to decide whether it shall participate or stand out. A similar
suggestion has been raised in Canada. That is an extreme
counter-irritant to imperial federation ; but imperial states-
men know that the colonies and dominions as well as India
are not, nor are they likely to be at any time, unwilling to
The Union of South Africa Ixxxv
contribute to the utmost of their power towards performing
the common duties of them all as long as there is no curtail-
ment of their freedom. It is extremely unlikely that this
attitude will be abused or alienated by precipitate incon-
siderateness. No doubt as regards commerce and foreign
affairs the colonial governments will in future be consulted
and action will be taken only if there is no strong objection on
the part of any of them. That this was, to some extent at
least, the practice before the war can hardly be doubted.
Possibly such informal procedure will conduce more to the
peace and welfare of the proletariat in the various countries
concerned than could any federal executive with the con-
sciousness of having behind it millions of men who can be
called to arms by signing and issuing a proclamation ; and it
seems as if such an executive could never in practice be called
to account by anybody. It seems to be an absolute negation
of democracy. At any rate great tact and moderation will
be exercised in moving for constitutional changes, for the
liberties granted to the colonies in the past have extended
so far that it will not be an act of real statesmanship to
appear to withdraw any of them. Without those liberties
the Empire could not have stood and grown, and they
have therefore acquired the character of goods delivered
in fulfilment of a contract. To adapt a wise man’s saying :
if the tie that holds together the separate parts of the
Empire is strong as steel that is only because it is as light
as a feather.
Imperial conferences have laid down lines of policy with-
out reference to the peoples committed thereby. The delegates
have agreed to suggestions and action has been taken on such
agreement. The opportunity of making up their minds and
expressing their wishes has been withheld from the people,
whether unavoidably or with set purpose makes no differ-
ence. But there is undeniably a general tendency to do
away with that method of procedure. The British peoples
seem to be outgrowing the old system. They demand that
they should know of every contemplated step that will affect
them. They argue that if they know and endorse their
commitments then they cannot be otherwise than faithful to
them, but they demand to know and they state that they
have a right to decide and that no one else has such a right.
They further assert that as regards foreign policy if the British
Empire transacts its business in public no other power will
very long be able to take shelter in secrecy as a normal process
of negotiation. It is obvious that in this respect liberties
can not be extended to the colonies until they have begun to
be enjoyed in the United Kingdom. Whatever the future
Ixxxvi Introduction
utility of imperial conferences may be, their significance has
not been generally grasped in the past, not even in the most
advanced colonies. Whether the institution will be extended
and made permanent so as to effect a virtual federation of the
Empire seems doubtful, as the delegates will certainly in future
be called to account by their legislatures, so that their decisions
will have no binding effect.
Names and phrases and catch-words often have the effect
of obscuring the thoughts that lie behind them. It may be
that those who speak of a Commonwealth of Nations and
those who are labouring to establish a Self-contained Empire
have somewhat different roads in view by which to reach the
same goal. Possibly, too, the one term is meant to attract
one class of people, and the other to satisfy another class. In
the United Kingdom propaganda of a determined character
has been proceeding, but in the dominions there is a great deal
of hostility and misapprehension arising from ill-timed and
ill-considered agitation. Any scheme that may be sub-
mitted to the peoples of the Empire in the near future will
probably be decided on without their grasping the issues at
stake. There can be no intention to force a decision until
the whole question in all its bearings is everywhere understood.
The people will be honestly told that they are to decide whether
there is to be greater scope for individual and local liberty, for
self-development along fairly democratic lines, or whether
for the sake of a powerful Empire they will sink their pro-
vincial ambitions. Either course has its attractions. Tem-
perament, education, lack of education, and past history will
decide for individual men and women as for the various peoples
the course to be favoured. There seems to be a great parting
of ways in the Empire, and any action taken will greatly
influence the world’s history. The maintenance of peace in
the future is the great object which the bulk of the human race
is trying for the moment to assure. The question is whether
that peace can be best preserved by organising into a compli-
cated but perfect fighting-machine a large number of groups
of peoples whom no one power will dare to assail, or by allow-
ing each group freedom to act or stand out as its own inclina-
tion dictates. But there is a further and vastly more im-
portant question : will a highly organised Empire or a number
of separate and semi-independent dominions give greater
freedom of action to the individual and contribute to the com-
mon fund of human liberty which has been painfully but
steadily accumulated during the ages, and which has been
and is still to-day the great fountain of inspiration for the
oppressed]? Ultimately, ^of course, we get involved ?in a
The Union of South Africa Ixxxvii
consideration of the whole aim and object of human
existence, but here it is only necessary to note the issues
as they dimly seem to unfold themselves, leaving it to his-
torians to present the narrative when the events have been
played off.
SELECT DOCUMENTS.
CHAPTER I.
THE CAPE OF GOOD HOPE.
SECTION A.
CENTRAL GOVERNMENT.
REQUEST FOR AN ORDER TO SURRENDER THE
CAPE.
No. 1. Letter from LORD GRENVILLE to the DUKE OF YORK
AND ALBANY.
DOWNING STREET, ist February 1795.
SIR, As it appears of the utmost importance, particularly
from the Letters this day received from Captain Berkeley,
that the Prince Stadtholder should give to the different
officers and Commanders of the Forts and Vessels of the Re-
public such orders as may distinctly mark the real situation
in which His Serene Highness is placed, and may authorize
them to avail themselves of that protection which His Majesty
is desirous of holding out to them, according as circumstances
may permit ; His Majesty’s servants have thought that a
Proposal of this nature, the urgent necessity of which is so
apparent, could not in any manner be brought forward with
so much advantage, as if Your Royal Highness would have
the goodness to charge yourself with it.
Your Royal Highness is too well acquainted with all the
bearing of this important point, to make it at all necessary
to dwell on the arguments which will prove to His Serene
Highness, in the most indisputable manner, that the line now
pointed out is what He owes as much to the interests of the
Republic, as to those of His own House, and of the high dignity
with which He is invested.
There would be no difficulty in giving to His Serene High-
ness any assurance that He might wish, that any Ships of
War or Forts, surrendered in consequence of such order, would
be restored to the Republic at the conclusion of a General
Peace, by which Her Independence and Constitution should
be secured.
2 CAPE OF GOOD HOPE [1795
I have the Honor to enclose to Your Royal Highness the
Draft of an order, which has been prepared on this idea ; and
it would be desirable if His Serene Highness could be per-
suaded to adopt this Form.
Enclosure in above.
WHEREAS I W. Prince of Orange, Hereditary Stadtholder
of the States General of the United Provinces, and Heredi-
tary Governor of each Province, and Captain General and
Admiral of the Forces by Land and Sea belonging thereto,
have been compelled by the Entrance of a Foreign Armed
Force into the Territories of the same, to withdraw myself
therefrom, and to retire into the Dominions of the good
Friend and Ally of Their High Mightiness The King of Great
Britain, and whereas I am thereby illegally and unjustly
prevented from exercising in Person within the said Province
the Functions of the said High Offices and of all other Offices
and Powers with which I am legally and constitutionally
invested, I do by this Declaration, subscribed in due form
and in the presence of lawful Witnesses, notify to all Com-
manders and Governors, Civil and Military, of all Forts, Castles,
Garrisons, Ports, Settlements, Plantations and Colonies be-
longing to the States General and to all Admirals and Com-
manders of Ships of War belonging to the same, and do strictly
enjoyn them, that They forthwith deliver up Possession of
the said Forts, Castles, Garrisons, Ports, Settlements, Colonies
and Ships of War to the King of Great Britain or to such
Persons as He shall authorize to receive Them, in order that
They may be secured from falling into the possession of the
Enemy ; and under special Trust and Confidence solemnly
assured on the Part of His Britannick Majesty, that the same
shall be restored in full Sovereignty and Use to Their High
Mightinesses, as soon as ever it shall please God to restore to
my afflicted Country the Blessings of Independence and of
its ancient and established Form of Government.
Subscribed in the presence of
(L. S.)
Rec. I. 26.
ORDER TO ADMIT BRITISH FORCES INTO THE CAPE.
No. 2. Order from the PRINCE OF ORANGE to the GOVERNOR
OF THE CAPE OF GOOD HOPE.
KEW, jth February 1795.
To The Governor of the Cape of Good Hope.
We have thought it right to write to you by this oppor-
tunity, and to charge you to admit into the Fort under your
1795] CENTRAL GOVERNMENT 3
command such Troops as may be sent thither on the Part
of His Brit. Majesty, and to receive into Table and False Bays
and other Harbours and Places where Ships can remain with
Safety all Ships of War, Frigates or Armed Vessels that may
be sent from His said Brit. Majesty, and to look upon them
as Troops and Ships of a Power in Friendship and Alliance
with Their High Mightiness, and that come to prevent the
Colony from being invaded by the French.
(Signed) W. PR. OF ORANGE.
By Command of His Highness, In the Absence of the
Private Secretary.
(Signed) J. W. BOEJENK.
[Copy translated.] Rec. I. 28.
THE FIRST SURRENDER OF THE CAPE TO
THE BRITISH.
No. 3. Articles of Capitulation. RUSTENBURG, i6th Sept. 1795.
ART. i. The capitulation being signed the Castle and the
Town are to be surrendered to a detachment of His Britannick
Majesty’s Troops at n o’clock this day.
ART. 6. Everything that belongs to the Company shall
be handed over in strict honour without the withholding
of anything, after an inventory has been made ; but the
property of the Company’s servants … as well as that of
all the burghers and other inhabitants shall remain free and
intact, as shall also all that belongs to the churches, to the
orphans and to the public bodies.
ART. 7. The colonists shall retain all the privileges which
they now enjoy, including their present religion, without
any change.
ART. 9. No new imposts shall be introduced, but on account
of the decay of the Colony, the taxes shall be lessened as
much as possible.
ART. 13. Finally, no persons, whether they be servants of
the Company, sailors, soldiers, burghers, or any other, shall be
pressed into or engaged for the service of His great Britannick
Majesty, except it be of their own free will.
Rec. I. 127.
APPOINTMENT OF THE FIRST BRITISH
COMMANDANT. [30 Sept. 1795.]
No. 4. Appointment. By General ALURED CLARKE, Com-
mander-in-Chief of His Majesty’s Troops, and Vice- Admiral
4 CAPE OF GOOD HOPE [1795
Sir GEORGE KEITH ELPHINSTONE, Commander-in-Chief of
His Majesty’s Fleets and Ships of War in the Indian
Seas, etc.
WHEREAS His Majesty has been pleased to appoint us to
be Commanders-in-Chief of His Land and Sea Forces, employed
on an Expedition in the course of which the Colony of the
Cape of Good Hope has surrendered to His Majesty by a
Capitulation dated on the i6th Instant. And whereas His
Majesty among other Articles of Instruction with which he
has been pleased to charge us has directed that in the event of
the surrender of this Colony we should arrange and settle
such matters as may be necessary for the internal regulation
of the Affairs thereof. Now we, considering that it will materi-
ally tend to the purpose aforesaid as well as to the furtherance
of His Majesty’s Service, Do hereby appoint you to be Com-
mandant of the Town and Settlement of the Cape of Good
Hope, authorizing you to take upon you the Charge of all
Duties and of all manner of things both civil and military
appertaining to the duty of Commandant aforesaid.
To Major-General Craig.
Rec. I. 175.
OATH OF ALLEGIANCE REQUIRED OF
INHABITANTS. [7 Oct. 1795.]
No. 5. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE KEITH ELPHINSTONE, K.B., and
Major-General CRAIG, etc. etc.
… It is hereby declared that all persons whatever con-
tinuing to reside in the Colony, and thereby to enjoy His
Majesty’s protection, although they may not have individually
or actually taken the oath hereby required, will nevertheless
be considered as having virtually acceded thereto, will be
looked upon as subjects, will as such enjoy every right and
privilege belonging to that quality, and will be liable to all
the pains and penalties attached to the crime of treason in
case of any act contrary to their allegiance as such.
And if there are any persons who preferring the government
of any other power, do not chuse to become subjects of great
Britain, all such are hereby required to notify such their in-
tentions, as they will be allowed a reasonable time to settle
their affairs, after which it will be expected that they do
withdraw from the Colony.
Rec. I. 178.
1796] CENTRAL GOVERNMENT 5
APPOINTMENT OF OFFICIALS. [10 Oct. 1795.]
No. 6. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE KEITH ELPHINSTONE, K.B., and
Major-General CRAIG, etc. etc.
WHEREAS we have judged it expedient to appoint a
Collector-General, Collector of Land Revenue, and a Treasurer :
We hereby make known that
ist. Mr. J. I. Rhenius is to take upon himself the office of
Collector-General and Treasurer.
2nd. Mr. C. Brandt, Collector of the Duty of Imports and
Exports of Merchandise and Produce together with the duty
of the Cape Wine and Brandy, and of the tythes of Corn on
being brought to Town. Wherefore all persons desirous of
Importing or Exporting any Merchandise or produce are to
apply to the said Mr. Brandt, and the duty of the said Cape
Wine together with the tythes of the said Corn are to be paid
with ready Money to the Clerks who will be appointed for
that purpose at the Main Guard of the Imhorf Battery as has
been Customary.
3rd. Mr. J. P. Baumgard, Collector of the Revenue which
is yearly paid by the Farmers for permission to cultivate and
feed Cattle in the Lands of the Company and of the Revenues
proceeding from other Lands.
Rec. I. 184.
INSTRUCTIONS ISSUED TO THE GOVERNOR
OF THE CAPE COLONY. [30 Dec. 1796.]
No. 7. Instructions to Our Right Trusty and Right well-be-
loved Cousin and Counsellor GEORGE, EARL OF MACARTNEY,
K.B., Our Governor and Commander-in-Chief in and over
the Settlement of the Cape of Good Hope in South Africa
Given at Our Court at St. James the Thirtieth Day of
December, one thousand seven hundred and ninety-six,
in the Thirty-seventh year of Our Reign.
ist. With these Our Instructions, you will receive Our
Commission under Our Great Seal of Great Britain, con-
stituting you Our Governor and Commander-in-Chief in and
over the Settlement of the Cape of Good Hope in South Africa,
now in Our Possession. In the Execution therefore of Our
said Commission you are to take upon you the administration
of the Government of the said Settlement and to do and
execute all things belonging to your Command according to the
several powers and authorities of Our said Commission under
6 CAPE OF GOOD HOPE [1796
Our Great Seal of Great Britain, and of these Our Instructions
to you, and according to such further Powers, Instructions
and Authorities as you shall at any time hereafter receive
under Our signet and sign manual, or by Our Order in Our
Privy Council, or by Us through one of Our principal Secre-
taries of State.
2nd. [The Governor is to take at the Cape various oaths
prescribed by Acts of Parliament.]
3rd. [The Governor is to administer oaths or take de-
clarations from all persons appointed to places of trust or profit
in the Colony.]
4th. It is Our Royal Will and Pleasure, That for the present,
and until Our pleasure shall be further signified, the Temporary
Administration of Justice and Police in the Settlement, should,
as nearly as circumstances will permit, be exercised by you in
conformity to the Laws and Institutions that subsisted under
the antient Government of the said Settlement, subject to
such Directions as you shall now or hereafter receive from Us,
under Our signet or sign manual, or by Our Order in Our
Privy Council, or from Us through one of our principal Secre-
taries of State, and to such Deviations, in consequence of
sudden and unforeseen Emergencies, or to such Expedients
and useful alterations as may render a Departure there-
from either absolutely necessary and unavoidable, or evidently
beneficial and desirable, and which you are immediately to
represent to one of Our Principal Secretaries of State for Our
Information. But it is, nevertheless, Our especial Command
that all the powers of Government within the said Settle-
ment, as well Civil as Military, shall be vested solely in you Our
Governor, or in the person having the Government of the said
Settlement for the time being, and that such powers as were
heretofore exercised by any person or persons separately or in
conjunction with the Governor of the said Settlement, shall
belong solely to you Our Governor, or to the person having
the Government of the said Settlement for the time being ;
And it is Our Will and Pleasure, that all public Acts and
Judicial proceedings shall henceforth be done issued and per-
formed in the name of the Governor, and shall, previous to
then: being published and put in execution, be signed by the
Chief Secretary to the Government by the authority of the
Governor or the person having the Government of the said
Settlement for the time being.
5th. Whereas it has been represented to Us, That the
practice of proceeding by Torture against persons suspected
of Crimes, and of punishment after Conviction in many Capital
Cases, by breaking upon the wheel and other barbarous modes
of Execution, prevails in the said Settlement, It is Our Will
1796] CENTRAL GOVERNMENT 7
and Pleasure that you should wholly abolish these forms of
Trial and Punishment, and provide other more lenient and
equitable proceedings, which it is left to your Judgment and
Discretion to establish and enforce in the said Settlement.
6th. [The Governor is to report fully on the establishments
for the administration of justice and to recommend improve-
ments where necessary.]
7th. Whereas from the Statements that have been laidbefore
Us of the Financial System and Regulations established in the
said Settlement, it appears to Us, that they are, in a high
Degree, oppressive and vexatious, Our Will and pleasure there-
fore is, that you do make this Branch of the Publick administra-
tion one of the first objects of your attention, and that you
do, without delay, afford Our subjects at the said Settlement
such relief from the Fiscal oppressions under which they now
labour, as you shall judge expedient, and particularly by
abolishing monopolies, pre-emptions and exclusive privileges,
and prohibitions and Restraints, to the free exercise of their
Industry, either in Agriculture, Manufactures or other pur-
suits of interior Commerce, and establishing in lieu thereof
such reasonable Duties or Taxes as shall appear to you ex-
pedient. And as the public Revenue of the said Settlement has
been hitherto principally derived from these resources, or from
others apparently grievous and injurious to the Interests and
Prosperity of the said Settlement, We hereby require you to
consider and carefully investigate this subject, and transmit
a full and explicit Report thereon to one of Our principal
Secretaries of State for Our Information, specifying, under
distinct heads, the different Resources from which the Revenue
was derived under the former Government, distinguishing
those which shall have been abolished, and also the substitutes
which shall have been established, or may, in your opinion,
be established, and you will also transmit a Copy of this
Report to Our High Treasurer, or The Lords Commissioners of
Our Treasury for the time being, and also a Copy to the Com-
mittee of Our Privy Council for Trade and Plantations.
8th. Our Will and Pleasure is That the Revenue derived
from the Annual Quit Rent paid by the Persons holding Lands
granted to them by the Dutch Government shall continue to
be collected, but that all arrears due anterior to the Capture
of the Settlement by our Forces shall be remitted ; And We
hereby strictly require of you to take the necessary measures
for ensuring hereafter a due regularity in the payment of the
said Quit Rents, as the only means of preventing the Loss occa-
sioned to the Revenue by the accumulation of such arrears, and
if, in any case, the said Quit Rents should appear excessive
and disproportioned to the means and Faculties of the Land-
8 CAPE OF GOOD HOPE [1796
owners, We authorize you to grant such reductions as circum-
stances may appear to require.
gth. [The Governor is to send a full report on the paper
money, observing how far it may be replaced by specie.]
loth. [The Governor is to send an account of the rules
regulating the importation of slaves, the laws existing for
their protection, etc., with his opinion as to the expediency of
prohibiting such importation in future.]
nth. [The Governor and the Lieutenant-Governor are to
form a court of appeal in civil cases. Vide document No. 65.]
I2th. Our will and pleasure is, That all Orders, Regu-
lations, or Laws, made by You or Our Lieutenant-Governor
shall, when transmitted by You for Our Information, and for
the signification of our pleasure thereon, be fairly abstracted
in the margins, and accompanied with very full and particular
observations, upon each of them, that is to say Whether
the same is introductory to a new Order, Regulation or Law
then before in being, and you are also to transmit in the fullest
manner, the reasons and occasions for making such Orders,
Regulations or Laws.
I3th. You are to give Warrants under your hand for the
issuing of public monies for all Services, and We do parti-
cularly require you to take care that regular accounts of all
receipts and payments of public monies be duly kept, and that
copies thereof, attested by you, be transmitted every half-year,
or oftener if there should be occasion, to Our Commissioners
of Our Treasury or to Our High Treasurer for the time being,
and Duplicates thereof by the next conveyance ; in which
accounts shall be specified every particular sum raised or dis-
posed of, to the end that We may take such measures as We
may deem necessary for the Examination of the said accounts,
and that We may be satisfied of the right and due application
of the Revenues of the said Settlement, and with the probability
of the increase or diminution of them under every head and
article thereof.
I4th. You shall not remit any Fines or Forfeitures what-
soever, until, upon signifying unto the Commissioners of Our
Treasury, or Our High Treasurer for the time being, the nature
of the offence and the occasion of such Fines and Forfeitures,
with the particular sums or value thereof, (which you are to
do with all speed) you shall have received Our Directions
thereon ; but you may in the meantime suspend the payment
of the said Fines and Forfeitures.
I5th. And you are on every occasion to transmit to Us,
through one of Our Principal Secretaries of State, with all
convenient speed, a particular account of all new Establish-
ments of Jurisdictions, Courts, Offices, and Officers, Powers
1796] CENTRAL GOVERNMENT 9
and Authorities, Fees and Privileges granted and settled within
the said Settlement, as likewise an account of all the Expences
(if any) attending the Establishment of the said Courts and
Offices.
1 6th. [The Governor is to transmit a table of fees which
he considers should be received by the Courts of Justice.]
xyth. It is Our further Will and Pleasure, that all Com-
missions to be granted by you to any person or persons for
exercising any Office or Duty, relating to the administration
of Justice, or to the preservation of the public peace, or other
necessary offices, be granted during pleasure only.
i8th. [Justice must be administered impartially and
without delay.]
igth. You shall not suffer any Person to execute more
offices than one by Deputy.
2oth. [The Governor is to draw up and transmit a table
of custom-house dues which he may consider suitable for
adoption at the ports.]
2ist. You shall not by colour of any power or authority
hereby or otherwise granted or mentioned to be granted unto
you, take upon you to give, grant or dispose of any place or
office within the said Settlement which now is or shall be
granted under the Great Seal of this Kingdom, or to which
any person is or shall be appointed by Warrant under Our
Signet and Sign Manual, any further than you may, upon the
vacancy of any such office or place, or upon the suspension of
any such officer by you as aforesaid, put in any fit person to
officiate in the interval, till you shall have represented the
matter to Us, through one of Our Principal Secretaries of
State, which you are to do by the first opportunity, and till
the said office or place is disposed of by Us, Our Heirs or Suc-
cessors, under the Great Seal of this Kingdom, or until some
person shall be appointed thereunto, under Our Signet and
Sign Manual, or until Our further Directions be given therein.
22nd. [The Governor is to send a report on the Crown
lands in the Colony, their nature, products, wealth in minerals,
etc., and to recommend a manner of issuing grants of such
lands on reasonable terms.]
23rd. [The Governor is to report on the rivers and harbours,
observing how far any new fortifications would be necessary
at the landing-places.]
24th. [The Governor is to report in how far the erection of
fortifications in the interior is necessary for defence against
the natives, and how the goodwill of the natives may be won
and trade with them advanced.]
25th. Whereas the Establishment of proper regulations
in matters of Ecclesiastical concern is an object of very great
io CAPE OF GOOD HOPE [1796
Importance, it will be your indispensable Duty to take care
that no arrangement in regard thereto be made, but such as
may give full satisfaction to Our New Subjects, in every point
in which they have a right to any indulgence on that head,
and you are to permit liberty of Conscience, and the free
exercise of Religious Worship, to all persons who inhabit and
frequent the said Settlement, provided they be contented with
a quiet and peaceable Enjoyment of the same, without giving
offence or scandal to Government.
26th. [The Governor is to report his opinion as regards
steps that may be taken for erecting and maintaining schools.]
27th. And it is Our further Will and Pleasure, That no
person shall be allowed to keep a school in the said Settlement
without your Licence first had and obtained, in granting
which you are to pay the most particular attention to the
morals and proper qualifications of the persons applying for
the same.
28th. And it is Our Will and Pleasure, that you, or, in your
absence, Our Lieutenant-Governor, or the Person for the time
being having the Government of the said Settlement, have the
power of collating the Benefices, granting Licences for Mar-
riages and Probates of Wills, commonly called the office of
Ordinary, but it is our express Will and Pleasure, and you are
hereby directed and required not to grant Deputations for the
exercise of the said Powers, to any Person or Persons what-
soever in the said Settlement under your Government.
29th. [Annual returns must be transmitted showing the
number of inhabitants, the state of the trade, agriculture and
fisheries, and the number of ships employed at the settlement.]
3Oth. [The Governor is to act as Vice- Admiral of the settle-
ment.]
3ist. [His powers are restricted in the issuing of com-
missions to ships of war.]
32nd. [The Governor must proceed according to Acts of
Parliament in trying persons for piracy.]
33rd. [He must report on the institutions of the Colony
as they existed during the Dutch period.]
34th. [He must send returns of all ammunition and mili-
tary stores in the Colony.]
35th. You are hereby particularly authorized and
required, for the better security of the said Settlement,
and for the maintenance of good order within the same, to
raise such Troops therein, and to call out and embody such
Companies of Corps of Militia as you shall judge necessary
for that purpose, and fine or imprison such persons as refuse
to be enrolled and to serve. With the same view of maintain-
ing order and good Government, you are also authorized to
I797J CENTRAL GOVERNMENT It
disarm such of the Inhabitants of the said settlement as are
not Proprietors or are not employed in any Civil or Military
Capacity, or have not your Licence for keeping their Arms,
and to remove and send away from the said Settlement such
persons as you shall suspect of adhering to Our Enemies, and
all such other Persons the continuance of whose residence you
may have reason to imagine might be inconvenient or pre-
judicial to the peace, good order or Security of the said Settle-
ment.
36th. [Vessels carrying letters must be instructed to sink
such letters in case of imminent danger from enemy ships.]
37th. If any thing shall happen which may be of advantage
or security to the said Settlement, which is not herein, or by
your Commission, provided for, We do hereby allow unto you
to take order for the present therein, giving unto Us, through
one of our principal Secretaries of State, speedy notice thereof,
that you may receive Our ratification, if We shall approve the
same, provided always that you do not, by color of any power
or authority hereby given you, Commence or Declare War
without Our knowledge and particular Commands therein, ex-
cept it be for the purpose of preventing or repelling Hostilities
or unavoidable Emergencies.
38th. [The Governor is not to depart for Europe without
leave being first obtained.]
39th. [He must transmit an account of all his proceedings.]
4oth. [The Crown reserves full power to determine in future
anything with regard to the Colony, just as if the Governor’s
commission and these Instructions were never issued.]
Rec. II. 3.
FEES OF OFFICE.
No. 8. Letter from the WAR OFFICE to the EARL
OF MACARTNEY.
PARLIAMENT STREET, jth January 1797.
MY LORD, His Majesty having been pleased to deter-
mine that the Fees and Perquisites which may be received
by any Public Offices established, or to be established under
the Government of the Cape of Good Hope, should in no case
whatever belong to the Person or any of the Persons employed
in such Offices, by right of Office and without account ; but
that all such Fees and Perquisites should be appropriated to
the payment of the fixed appointments of the Persons em-
ployed in such Offices, as far as they will go for this purpose,
and it being His Majesty’s further Pleasure that in case of
their exceeding in any particular Office the expence of the
12 CAPE OF GOOD HOPE [1802
Establishment of that Office, the Surplus, whatever it may
be, shall be appropriated to discharge the Expences of such
other Offices as may be deficient in this respect, and in case
there should be any surplus in the whole, then that it should
be paid into the Treasury of the Settlement, and be applied
in aid of the other Branches of the Public Expences. I am
commanded to acquaint your Lordship with these Disposi-
tions, and beg leave to suggest as the best method of carrying^
them into execution that you should direct the whole amount
of all Fees and Perquisites above described to be collected
quarterly into one Fund, from which they might be appro-
priated and accounted for in the manner above mentioned.
Rec. II. 35.
No. 9. TREATY OF AMIENS.i [27 March 1802.]
Between His BRITANNIC MAJESTY on the one hand, and the
FRENCH REPUBLIC, His Catholic Majesty, and the BATA-
VIAN REPUBLIC on the other.
ART. III. His Britannick Majesty restores to the French
Republick, and her Allies ; namely, His Catholick Majesty
and the Batavian Republick, all the Possessions and Colonies
which belonged to them respectively, and which had been
occupied or conquered by the British Forces in the Course of
the War, with the Exception of the Island of Trinidad, and
the Dutch Possessions in the Island of Ceylon.
ART. VI. The Cape of Good Hope remains in full Sover-
eignty to the Batavian Republick, as it was before the War.
The Ships of every Description belonging to the other con-
tracting Parties shall have the Right to put in there, and to
purchase such Supplies as they may stand in need of as hereto-
fore, without paying any other Duties than those to which
the Ships of the Batavian Republick are subjected.
ART. XII. The Evacuations, Cessions, and Restitutions,
stipulated for by the present Treaty, except where otherwise
expressly provided for, shall take place in Europe within One
Month ; in the Continent and Seas of America, and of Africa,
within Three Months ; and in the Continent and Seas of Asia,
within Six Months after the Ratification of the present Defini-
tive Treaty.
ART. XIII. In all the Cases of Restitution agreed upon
by the present Treaty, the Fortifications shall be delivered up
in the State in which they have been at the Time of the Sig-
nature of the Preliminary Treaty; and all the Works which
1 Published by Authority. London, 1802.
1803] CENTRAL GOVERNMENT 13
shall have been constructed since the Occupation, shall remain
untouched. . . .
With respect to the Inhabitants of the Countries restored
or ceded, it is agreed that none of them shall be prosecuted,
disturbed or molested in their Persons or Properties under
any Pretext, on account of their Conduct or political Opinions,
or of their Attachment to any of the contracting Powers, nor
on any other Account, except that of Debts contracted to
Individuals, or on Account of Acts posterior to the present
Treaty.
ART. XIV. All Sequestrations imposed by any of the
Parties on the funded Property, Revenues, or Debts of what-
ever Description, belonging to any of the contracting Powers,
or to their Subjects or Citizens, shall be taken off immediately
after the Signature of this Definitive Treaty. The Decision
of all Claims brought forward by Individuals, the Subjects
or Citizens of any of the contracting Powers respectively,
against Individuals, Subjects or Citizens of any of the others,
for Rights, Debts, Property, or Effects whatsoever, which,
according to received Usages and the law of Nations ought
to revive at the Period of Peace, shall be heard and decided
before competent Tribunals ; and in all Cases prompt and
ample Justice shall be administered in the Countries where
the Claims are made.
* * *
Done at Amiens, the Twenty-seventh Day of March One
thousand eight hundred and two ; the Sixth Germinal, Year
Ten of the French Republick.
(L.S.) CORNWALLIS.
(L.S.) JOSEPH BONAPARTE.
(L.S.) J. NICOLAS DE AZARA.
(L.S.) R. J. SCHIMMELPENNINCK.
THE CAPE RESTORED TO THE DUTCH. [21 Feb. 1803.]
No. 10. Proclamation. By Lieutenant-General FRANCIS
DUNDAS.
WHEREAS by the 3rd Article of the Treaty of peace concluded
at Amiens on the 2yth March 1802 this Settlement is agreed
to be restored to the Batavian Republic, which restoration will
take place to-morrow, being Monday the 2ist of February
1803, These are to signify to all the Inhabitants of this Colony
of every description and to all others (not subjects of the United
Kingdom of Great Britain and Ireland) who have taken
the Oath of Allegiance to His Britannic Majesty that from
14 CAPE OF GOOD HOPE [1806
the day above mentioned they are absolved from the said Oath
and return under the subjection of the Batavian Government.
In order however to prevent confusion, the several Colleges
and all the Civil Servants of this Government charged with the
Police, administration of Justice, or of Finance, are at the
instance of His Excellency the Commissary-General required
for the present, and until further orders, to continue the func-
tions of their several offices, and all the Inhabitants are warned
to continue to obey the same.
Rec. V. 156.
SURRENDER OF CAPE TOWN TO THE BRITISH.
[10 Jan. 1806.]
No. 11. Articles of Capitulation proposed by the Lieut. -Colonel
HIERONIMUS CASIMIRUS VON PROPHALOW, Command-
ant of the Town, Castle, and circumjacent Fortifica-
tions of the Cape of Good Hope, to the Major-General in
the Service of His Britannic Majesty, Sir DAVID BAIRD,
K.C., Commander-in-Chief of His Majesty’s Forces, and
Commodore Sir HOME POPHAM, K.M., Commander-in-
Chief of His Britannic Majesty’s Naval Forces in Table
Bay.
ART. i. The Capitulation being signed, the Cape Town,
Castle, and circumjacent Fortifications shall be immediately
surrendered to the Troops of His Britannic Majesty, viz. the
Fortifications of the King’s Block-House, Craig’s Tower, and
all the Batteries within that circuit, and on the other side of
Camps Bay.
2. The Garrison shall, at the surrender, march out with
all the Honours of War, and shall then lay down their Arms
and become Prisoners of War ; but such Officers as are natives
of the Colony, or married with natives, or in possession of
sufficient Landed Property to become regularly and bona fide
domiciliated, shall be at liberty to continue here so long as they
behave themselves as becometh good Subjects and Citizens,
or proceed to Great Britain with regular Passports, and having
previously passed their Parole not to serve until regularly
exchanged.
3. All Officers, who according to the previous Article,
must go to Europe, shall be provided with passages at the
expense of His Britannic Majesty, and shall have leave to
realize their Property previous to their departure, and receive
the same Pay as they did in their own Service, till the day
of their embarkation.
4. The French Subjects, who, belonging to the stranded
1806] CENTRAL GOVERNMENT 15
Frigate VAtalante, and the stranded Privateer le Napoleon,
were casually here, and are comprehended in the Capitulation,
shall be treated on the same footing as the Garrison ; but they
must all be embarked for Europe, as well as every other French
Subject in the Colony.
5. The Inhabitants of the Town, who have borne Arms,
to be considered as belonging to the Town, and may immedi-
ately return to their former occupations. But the distinction
between the Burghers and other Inhabitants is to remain the
same, and subject to the same restrictions as under the Dutch
Laws.
6. All bona fide private Property, whether belonging to the
Civil or Military Servants of the Government, to the Burghers
and Inhabitants, to Churches, Orphans, and other Public
Institutions of that kind, shall remain free and untouched.
7. Public Property of every description, whether consisting
of Treasure, or Naval or Military Stores, Buildings, Estates
or Merchandise, belonging to the Batavian Republic or the
Government of France, shall be faithfully delivered up, and
proper Inventories given of them as soon as possible.
8. The Burghers and Inhabitants shall preserve all their
Rights and Privileges which they have enjoyed hitherto ;
Public Worship, as at present in use, shall also be maintained
without alteration.
9. The Paper Money actually in circulation shall continue
current as heretofore, until the pleasure of His Britannic
Majesty is known.
10. The Lands and Houses, the property of the Batavian
Republic, which must be delivered up in consequence of the
present Capitulation, shall remain as security for that part of
the Paper Money which is not already secured by Mortgages
upon the Estates of Individuals, by its having been lent to
them. This is, however, to be without prejudice to the free
use to be made of the said Lands and Houses for public
purposes.
11. Prisoners of War comprehended in the present Capitu-
lation shall not be pressed into His Britannic Majesty’s Service,
or engaged against their own free will and consent. With
respect to other Persons, they are provided for in Article the
5th of this Capitulation.
12. The Inhabitants of Cape Town shall be exempted
from having Troops quartered on them.
[Etc.]
Given … at Papendorp, near Fort Knokke.
Prods., etc., p. I.
i6
CAPE OF GOOD HOPE
[1807
No. 12. SECOND SURRENDER OF THE CAPE TO
THE BRITISH. [19 Jan. 1806.]
Articles of Capitulation proposed by Lieut. -General JANS-
SENS, Governor, and Commander-in-Chief of the Batavian
Forces at the Cape of Good Hope, to Brigadier-General
BERESFORD, duly authorised by Major-General Sir DAVID
BAIRD, K.C., and Commodore Sir HOME POPHAM, K.M.,
Commanding the Military and Naval Forces of His
Britannic Majesty.
ARTICLE i. As soon as this
Capitulation is signed the whole
of the Settlement of the Cape
of Good Hope, with all its De-
pendencies, and all the rights
and privileges held and exer-
cised by the Batavian Govern-
ment, will be considered as sur-
rendered by the Governor,
Lieut. – General Janssens, to
His Britannic Majesty.
ARTICLE 8. The inhabitants
of the Colony who are com-
prehended in this Capitula-
tion are to enjoy the same
rights and privileges as have
been granted to those in Cape
Town, according to the Cap-
itulation of the loth instant.
ARTICLE i. Agreed to.
ARTICLE 8. Agreed to with
the exception of not quartering
Troops, the Country not having
the same resources astheTown,
and this right having been
always an appendage to the
Batavian Government.
18 Jan. 1806.
Ratified and confirmed, 19 Jan. 1806.
Prod., etc., p. 8.
No. 13. THE FARMING OUT OF LICENSES.
[25 July 1807.]
Government Advertisement. Notice is hereby given, that
His Excellency the Governor and Commander-in-Chief has
been pleased to appoint a Committee, consisting of the follow-
ing gentlemen, with power to put up to Auction, and Farm out
to the highest Bidder, the Wine, Brandy, and Foreign Liquor
Licenses, for the ensuing Twelve Months, commencing from
the ist of September.
The Particulars of the Contract may be seen both at the
Colonial Secretary’s and Fiscal’s Offices.
Names of the Committee W. S. Van Ryneveld, Esq., His
1809] CENTRAL GOVERNMENT 17
Majesty’s Fiscal ; F. Dashwood, Esq., Receiver-General ;
C. Brand, Esq., Collector of Tythes ; J. P. Baumgardt, Esq.,
Receiver-General of Land Revenue.
The Auction will be at the Burgher Senate House, on
Friday the I4th of August next, at 9 o’clock in the Forenoon.
Castle of Good Hope, 25th July 1807.
By Command of His Excellency the Governor,
(Signed) A. BARNARD, Secretary.
Prods., etc., p. 62.
VAGRANCY AND CONTRACTS OF HIRE.
No. 14. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc. [i Nov. 1809.]
WHEREAS it appears that the provisions made from time to
time, for securing the fulfilling of Contracts of Hire between
the Inhabitants of this Colony and Hottentots, are not sufficient
for the intended purpose ; and, whereas for the benefit of this
Colony at large, it is necessary, that not only the Individuals
of the Hottentot Nation, in the same manner as the other
Inhabitants, should be subject to proper regularity in regard
to their places of abode and occupations, but also that they
should find an encouragement for preferring entering the
service of the Inhabitants to leading an indolent life, by which
they are rendered useless both for themselves and the com-
munity at large.
I therefore have thought proper to establish and ordain,
and by these Presents do establish and ordain :
1. That all and every Hottentot in the different Districts
of this Colony, in the same manner as all Inhabitants, shall
have a fixed Place of Abode in some one of the Districts, and
that an entry of the same shall be made in the Office of the
Fiscal, or the respective Landdrosts, and that they shall not be
allowed to change their place of abode from one District to
another, without a Certificate from the Fiscal, or Landdrost
of the District from which they remove ; which Certificate they
shall be bound to exhibit to the Fiscal, or Landdrost of the
District where they intend to settle, for the purpose of being
entered in their Office ; while every Hottentot neglecting this
order, shall be considered as a Vagabond, and be treated
accordingly.
2. That every Inhabitant who engages a Hottentot in his
service for the space of a month, or any longer period, shall be
bound with the same to make his appearance before the
Fiscal, or Landdrost, or the Field-Cornet of his District, and
18 CAPE OF GOOD HOPE [1812
there enter into, and sign in triplo, a proper written Contract,
containing
(a) The name of the Person who takes into service ;
(6) The name of the Person who enters into service ;
(c) The terms of the Contract ;
(d) The amount of the Wages ;
(e) The time of payment ; and
(f) Such further Conditions as the Persons contracting
shall agree upon.
Of which Contract, after having been duly signed in triplo,
each of the Parties shall be furnished with one counterpart,
and the third counterpart is to remain in the Office of the
Fiscal, Landdrost, or Field-Cornet ; while, for the sake of
facilitating the execution of this measure as much as possible,
the Fiscal and respective Landdrosts shall, upon applying for
the same, be furnished on the part of Government, gratis,
with the necessary printed Copies for their own Offices, and
those of the Field-Cornets under them.
This being neglected, no Contract of Hire against a Hotten-
tot shall stand good ; and in case where it is proved that the
Hottentot was ignorant of these present Regulations, upon the
existence of a Hire Contract being satisfactorily proved, the
engagement shall stand good in favour of the Hottentot, who
shall be entitled to all the advantages secured by this Pro-
clamation, to Hottentots entering into Contracts before the
Fiscal, Landdrost, or Field-Cornet. [Etc.]
Prods., etc., p. 119.
SALE OF CHRISTIAN SLAVES.
No. 15. Proclamation. By His Excellency Lieutenant-General
Sir JOHN FRANCIS CRADOCK, etc. [9 Oct. 1812.]
WHEREAS by a Resolution taken by the Governor in Council
at Batavia, dated the loth of April 1770, it is enacted and
prescribed, that Slaves who have been catechised and con-
firmed in the Christian Religion, shall not be sold : and
whereas by experience it has appeared, that a Law intended
for the promotion of Christianity and true Religion, has not
been attended with the desired, but rather the contrary, effect :
His Excellency hereby enacts and ordains, that the said
Clause of the Batavian Law of 1770 be repealed and of no
effect ; and it is hereby repealed and annulled, from the
date of this Proclamation.
And that no Person may plead ignorance hereof, this shall
be published and affixed as usual.
Prods., etc., p. 210.
1814] CENTRAL GOVERNMENT 19
CESSION OF THE CAPE TO GREAT BRITAIN.
No. 16. CONVENTION BETWEEN GREAT BRITAIN AND THE
UNITED NETHERLANDS. [13 Aug. 1814.]
In the Name of the Most Holy and Undivided Trinity,
The United Provinces of the Netherlands, under the favour
of Divine Providence, having been restored to their Inde-
pendence, and having been placed by the Loyalty of the
Dutch people and the achievements of the Allied Powers,
under the government of the Illustrious House of Orange :
And His Britannick Majesty being desirous of entering into
such arrangements with the Prince Sovereign of the United
Netherlands, concerning the Colonies of the said United
Netherlands, which have been conquered by His Majesty’s
arms during the late war, as may conduce to the prosperity
of the said State, and may afford a lasting testimony of His
Majesty’s friendship and attachment to the family of Orange
and to the Dutch nation : the said High Contracting Parties,
equally animated by those sentiments of cordial good will
and attachment to each other, have nominated for Their
Plenipotentiaries : namely, His Majesty the King of the
United Kingdom of Great Britain and Ireland, the Right
Honourable Robert. Stewart, Viscount Castlereagh, . . . ; and
His Royal Highness the Prince of Orange-Nassau, Prince
Sovereign of the United Netherlands, His Excellency Henry
Fagel, . . . : who, after having exchanged their full Powers,
found in good and due form, have agreed to the following
Articles :
ARTICLE I. His Britannic Majesty engages to restore to the
Prince Sovereign of the United Netherlands, within the term
which shall be hereafter fixed, the Colonies, Factories, and
Establishments which were possessed by Holland at the com-
mencement of the late war, viz. on the rst of January 1803,
in the Seas and on the Continents of America, Africa, and
Asia; with the exception of the Cape of Good Hope and the
settlements of Demerara, Essequibo, and Berbice, of which
possessions the High Contracting Parties reserve to Them-
selves the right to dispose by a Supplementary Convention
hereafter to be negociated according to Their mutual interests ;
and especially with reference to the provisions contained in
the 6th and gth Articles of the Treaty of Peace signed between
His Britannick Majesty and His Most Christian Majesty on
the 30th of May
1 ART. VI. ” Holland, placed under the Sovereignty of the House of
Orange, shall receive an increase of territory. The title and exercise of that
Sovereignty shall not in any case belong to a Prince wearing or destined to
20 CAPE OF GOOD HOPE [1814
ARTICLE II. His Britannick Majesty agrees to cede in
full Sovereignty the Island of Banca, in the Eastern Seas, to
the Prince Sovereign of the Netherlands, in exchange for the
Settlement of Cochin and its dependencies on the coast of
Malabar, which is to remain in full Sovereignty to His
Britannick Majesty.
ARTICLE III. The places and forts in the colonies and
settlements, which by virtue of the two preceding articles are
to be ceded and exchanged by the two High Contracting
Parties, shall be given up in the state in which they may be
at the moment of the signature of the present Convention.
ARTICLE IV. His Britannick Majesty guarantees to the
subjects of His Royal Highness the Prince Sovereign of the
United Netherlands, the same facilities, privileges, and pro-
tection, with respect to commerce and the security of their
property and persons within the limits of the British Sove-
reignty on the Continent of India, as are now or shall be granted
to the most favoured nations.
His Royal Highness the Prince Sovereign, on His part,
having nothing more at heart than the perpetual duration
of peace between the Crown of England and the United Nether-
lands, and wishing to do His utmost to avoid anything which
might affect Their mutual good understanding, engages not
to erect any fortifications in the Establishments which are to
be restored to Him within the limits of the British Sovereignty
upon the Continent of India, and only to place in those Estab-
lishments the number of troops necessary for the maintenance
of the Police.
ARTICLE V. Those Colonies, Factories, and Establish-
ments, which are to be ceded to His Royal Highness the
Sovereign Prince of the United Netherlands by His Britannick
Majesty, in the Seas or on the Continent of America, shall be
given up within three months, and those which are beyond
the Cape of Good Hope within the six months which follow
the ratification of the present Convention.
ARTICLE VI. The High Contracting Parties, desirous
to bury in entire oblivion the dissensions which have agitated
Europe, declare and promise, that no individual, of whatever
rank or condition he may be, in the countries restored and
ceded by the present Treaty, shall be prosecuted, disturbed,
or molested in his person or property, under any pretext
whatever, either on account of his conduct or political opinions,
wear a foreign Crown.” [The rest of the article refers to Germany, Switzer-
land, and Italy.]
ART. IX. ” His Majesty the King of Sweden and Norway, in virtue of the
Arrangements stipulated with the Allies, . . . consents that the Island of
Guadalope be restorea to His Most Christian Majesty, and gives up all rights
He may have acquired over that Island.”
1814] CENTRAL GOVERNMENT 21
his attachment either to any of the Contracting Parties, or
to any Government which has ceased to exist, or for any other
reason except for debts contracted towards individuals, or
acts posterior to the date of the present Treaty.
ARTICLE VII. The native inhabitants and aliens, of what-
ever nation or condition they may be, in those countries which
are to change Sovereigns, as well in virtue of the present
Convention as of subsequent arrangements to which it may
give rise, shall be allowed a period of six years, reckoning
from the exchange of the Ratifications, for the purpose of
disposing of their property, if they think fit, whether it be
acquired before or during the late war, and of retiring to what-
ever country they may choose.
ARTICLE VIII. The Prince Sovereign of the United Nether-
lands, anxious to co-operate, in the most effectual manner,
with His Majesty the King of the United Kingdom of Great
Britain and Ireland, so as to bring about the total abolition
of the trade in slaves on the coast of Africa, and having
spontaneously issued a Decree on the I5th of June, 1814,
wherein it is enjoined, that no ships or vessels whatever,
destined for the trade in slaves, be cleared out or equipped
in any of the harbours or places of His dominions, nor admitted
to the forts or possessions on the coast of Guinea, and that no
inhabitants of that country shall be sold or exposed as slaves,
does moreover hereby engage to prohibit all His subjects, in
the most effectual manner and by the most solemn laws, from
taking any share whatsoever in such human traffic.
ARTICLE IX. The present Convention shall be ratified,
and the ratifications shall be duly exchanged at London
within three weeks from the date hereof, or sooner if possible.
In witness whereof, we, the undersigned Plenipotentiaries,
in virtue of our respective full powers, have signed the present
Convention, and have affixed thereto the seals of our arms.
Done at London, this i3th day of August 1814.
(L.S.) CASTLEREAGH. (L.S.) H. FAGEL.
First Additional Article.
In order the better to provide for the Defence and In-
corporation of the Belgick Provinces with Holland, and also to
provide, in conformity to the Ninth Article of the Treaty of
Paris, a suitable compensation for the Rights ceded by His
Swedish Majesty under the said Article, which compensation
it is understood, in the event of the above Reunion, Holland
should be liable to furnish, in pursuance of the above stipula-
tions ; It is hereby agreed between the High Contracting
Parties, that His Britannick Majesty shall take upon Himself,
and engage to defray the following charges :
22 CAPE OF GOOD HOPE [1814
ist. The payment of One Million Sterling to Sweden in
satisfaction of the claims aforesaid, and in pursuance of a
Convention this day executed with His Swedish Majesty’s
Plenipotentiary to that effect, a Copy of which Convention
is annexed to these Additional Articles.
2dly. The advance of Two Millions Sterling, to be applied,
in concert with the Prince Sovereign of the Netherlands, and
in aid of an equal Sum to be furnished by Him towards aug-
menting and improving the defences of the Low Countries.
3dly. To bear, equally with Holland, such further charges
as may be agreed upon between the said High Contracting
Parties and Their Allies, towards the final and satisfactory
settlement of the Low Countries in union with Holland, and
under the Dominion of the House of Orange, not exceeding,
in the whole, the sum of Three Millions, to be defrayed by
Great Britain.
In consideration, and in satisfaction of the above engage-
ments, as taken by His Britannick Majesty, the Prince
Sovereign of the Netherlands agrees to cede in full Sovereignty
to His Britannick Majesty, the Cape of Good Hope, and the
Settlements of Demerary, Essequibo, and Berbice, upon the
condition nevertheless, that the subjects of the said Sovereign
Prince, being proprietors in the said Colonies or Settlements,
shall be at liberty (under such Regulations as may hereafter
be agreed upon in a Supplementary Convention) to carry on
trade between the said Settlements and the Territories in
Europe of the said Sovereign Prince.
It is also agreed between the Two High Contracting Parties,
that the ships of every kind belonging to Holland, shall have
permission to resort freely to the Cape of Good Hope for the
purposes of refreshment and repairs, without being liable to
other charges than such as British subjects are required to
pay.
Second Additional Article.
[The district of Bernagore, close to Calcutta, is ceded to the
King of England for an annual payment to the Prince of
Orange.]
Third Additional Article.
The present Additional Articles shall have the same force
and validity as if they were inserted word for word in the
Convention signed this day. They shall be ratified, and the
Ratifications shall be exchanged at the same time and place.
In witness whereof, we the undersigned Plenipotentiaries
have signed, and affixed to them the Seal of our Arms,
i822] CENTRAL GOVERNMENT 23
Done at London, this Thirteenth day of August, One
Thousand Eight Hundred and Fourteen.
(L.S.) CASTLEREAGH. (L.S.) H. FAGEL.
Parl. Papers, Convention, I3th Aug. 1814,
Presented to Parl., June 1815, p. 2.
THE ENGLISH LANGUAGE ESTABLISHED.
No. 17. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc. [5 July 1822.]
WHEREAS it has been deemed expedient, with a view to
the prosperity of this Settlement, that the Language of the
Parent Country should be more universally diffused, and that a
period should be how fixed, at which the English Language
shall be exclusively used in all Judicial and Official Acts,
Proceedings, and Business, within the same. The long and
familiar intercourse which has happily taken place between
the good Inhabitants of this Colony, and the very numerous
British-born Subjects who have established themselves, or
have been settled here, has already greatly facilitated a
measure which is likely still more closely to unite the loyal
Subjects of their common Sovereign. The system which I
had previously adopted, with a view to this exigence of em-
ploying British-born Subjects, conversant in both languages,
in the parochial duties of the Reformed Religion, as established
in this Colony, has likewise paved the way to the amelioration
now contemplated.
It has pleased His Majesty most graciously to approve
that measure, and to enable me to act more extensively upon
it, not only by having commanded Clergymen of the Estab-
lished Church of Scotland (whose religious tenets are precisely
similar to those of the Reformed Church of this Country),
who have received instruction in the Dutch Language, in
Holland, to be sent hither to be placed in the vacant Churches,
but by having authorised competent and respectable In-
structors being employed at public expense, at every principal
place throughout the Colony, for the purpose of facilitating
the acquirement of the English Language to all classes of
Society.
These Teachers having now arrived, the moment appears
favourable for giving full effect to His Majesty’s Commands ;
and I, therefore, hereby order and direct, by virtue of the
Power and Authority in me vested, that the English Language
be exclusively used in all Judicial Acts and Proceedings, either
in the Supreme or Inferior Courts of this Colony, from the 1st
day of January of the Year of our Lord, One Thousand Eight
24 CAPE OF GOOD HOPE [1825
Hundred and Twenty-seven ; and that all Official Acts and
Documents of the several Public Offices of this Government,
(the Documents and Records of the Courts of Justice excepted)
be drawn up and promulgated in the English Language, from
and after the ist day of January, One Thousand Eight Hundred
and Twenty-five ; and that all Documents prepared and issued
from the Office of the Chief Secretary to tnis Government, be
prepared in the English Language, from and after the ist
day of January next, in the Year of our Lord, One Thousand
Eight Hundred and Twenty- three ; from and after which
periods, respectively, the English Language shall, in such
Judicial and Official Acts and Proceedings, be exclusively
adopted.
[Etc.]
Prods., etc., p. 558.
THE FIRST COUNCIL APPOINTED. [2 May 1825.]
No. 18. Proclamation. By His Excellency the Right Hon.
General Lord CHARLES HENRY SOMERSET, etc.
WHEREAS His Majesty has been graciously pleased, by In-
structions issued under His Signet and Sign Manual, with the
Advice of His Privy Council, bearing date at Carlton House,
the Ninth Day of February, 1825, to order and direct that a
Council shall be established in this Colony, to advise and assist
in the Administration of the Government thereof : And
whereas His Majesty has signified His Pleasure that the said
Council shall be composed as follows, viz. :
President, His Excellency the Governor or the Officer
administering the Civil Government of the Colony for the time
being.
Members, The Chief Justice; the Colonial Secretary; the
Officer next in Command, for the time being, to the Com-
mander of the Forces ; Lieutenant-Colonel Bell ; Walter
Bentinck, Esq., Auditor-General ; J. W. Stoll, Esq., Receiver-
General.
I do hereby make known and publish the same for the
Information of all the Inhabitants of this Colony, and of all
others whom it may concern.
GOD SAVE THE KING.
C. T. Gazette, 7 May 1825.
[Annexure.]
The Members of Council, appointed by His Majesty, . . .
having been summoned to attend at Government House on
1825] CENTRAL GOVERNMENT 25
Wednesday last, were there severally sworn in, by His Excel-
lency the Governor, under a Royal Salute. His Majesty’s
Commissioners of Inquiry, and many other Persons of distinc-
tion, were present.
C. T. Gazette, Saturday, 7 May 1825.
THE PAPER CURRENCY. [6 June 1825.]
G. R.
(Signed) C. H. SOMERSET.
No. 2. 1
No. 19. Ordinance. Of His Excellency the GOVERNOR IN
COUNCIL, for making British Silver Money a Legal Tender
in Discharge of all Debts due to Individuals, and to Gov-
ernment, at the Rate of One Shilling and Six Pence for
each Paper Rix-Dollar.
WHEREAS His Majesty’s Government has determined to
establish the British Currency as the Circulating Medium of
all the Colonial Possessions of the Crown, and has further been
pleased to Order and Direct that the British Silver Money shall
be a Legal Tender in this Colony, in discharge of all Debts due
to Individuals and to the Public, at the Rate of One Shilling
and Six Pence for each Paper Rix-Dollar, and so in proportion
for any greater or less Sum,
His Excellency the Governor in Council is pleased to Enact
and Declare, that from and after the date of this Proclamation
or Ordinance, British Silver Money shall be a Legal Tender in
this Colony, in discharge of all Debts due to Individuals and to
the Public, at the Rate of One Shilling and Six Pence for each
Paper Rix-Dollar, and so in proportion for any greater or less
sum,
His Excellency in Council has in consequence issued the
necessary Instructions, that a Table or Scale shall be Printed
forthwith, specifying the relative value of the Paper Rix-Dollar,
and of all the lesser proportions thereof, with British Money,
in order to regulate the Payment of the Established Govern-
ment Duties, Fees, etc. until such time as New Schedules of
Duties, etc. shall be made out.
The Governor in Council is further pleased to Order and
Direct, that from and after the 3ist of December next, all
Heads of Departments in this Colony, and all other Civil
Servants therein, shall render their Accounts in British Money ;
and that all Contracts entered into, or Purchases effected by the
1 The Cape ordinances were numbered consecutively from 1825 till 1833.
In 1834 and subsequent years there is a separate numbering for each year.
26 CAPE OF GOOD HOPE [1828
Civil Departments, for the Public Service, after that Date,
shall also be made in British Money.
And that no Person may plead ignorance thereof, this will
be published and affixed in the usual manner.
GOD SAVE THE KING.
Given at the Cape of Good Hope, this 6th Day of June 1825.
By Command of His Excellency the Governor,
(Signed) R. PLASKET, Secretary to Government.
By Order of the Council,
(Signed) P. G. BRINK, Act. Clerk of the Council.
P.R.O., C.O. 50/1.
EXTENSION OF HOTTENTOT LIBERTIES.
[17 July 1828.]
No. 50.
No. 20. Ordinance. For Improving the Condition of Hotten-
tots and other free Persons of colour at the Cape of Good
Hope, and for Consolidating and Amending the Laws
affecting those Persons.
WHEREAS certain Laws relating to and affecting the Hotten-
tots and other free persons of colour, lawfully residing in this
Colony, require to be consolidated, amended, or repealed,
and certain obnoxious usages and customs, which are in-
jurious to those persons, require to be declared illegal and
discontinued : Be it therefore enacted, by His Honour the
Lieutenant-Governor in Council, That from and after the
passing of this Ordinance, the Proclamations of the i6th day
of July 1787, Qth day of May 1803, Is t day of November
1809, 23rd day of April 1812, gth day of July 1819, and
23rd day of May 1823, shall be, and the same are hereby
repealed : [Provided that nothing herein contained shall
affect any contract or indenture entered into in virtue of the
said proclamations.]
II. And whereas by usage and custom of this Colony,
Hottentots and other free persons of colour have been sub-
jected to certain restraints as to their residence, mode of
life, and employment, and to certain compulsory services
to which others of His Majesty’s Subjects are not liable :
Be it therefore enacted, that from and after the passing of this
Ordinance, no Hottentot or other free Person of colour, lawfully
residing in this Colony, shall be subject to any compulsory
service to which other of His Majesty’s Subjects therein are
not liable, nor to any hindrance, molestation, fine, imprison-
ment or punishment of any kind whatsoever, under the pretence
that such Person has been guilty of vagrancy or any other
offence, unless after trial in due course of Law ; any custom
or usage to the contrary in any wise notwithstanding.
1828] CENTRAL GOVERNMENT 27
.III. And whereas doubts have arisen as to the competency
of Hottentots and other free Persons of colour to purchase
or possess Land in this Colony : Be it therefore enacted,
[all transfers of land made to or by such Hottentot or other
free person of colour are legal ; and it is lawful for such persons
born in the Colony or granted. deeds of burgh ership to possess
land.]
IV. And whereas it is expedient to protect ignorant and
unwary Hottentots and other free Persons of colour as afore-
said from the effects of improvident Contracts for Service :
Be it therefore enacted, [that it shall not be legal for any
person to hire by written agreement any Hottentot or free
person of colour for a longer period than one calendar month
at a time, except as hereinafter provided.]
V. [If any person and a Hottentot or free person of colour
desire to enter into an agreement for a longer period, such
contract shall be made in writing in the presence of a Clerk
or a Justice of the Peace, the period of such contract not to
exceed 12 calendar months. Liquor or tobacco given to a
servant, not to be regarded as wages. At the expiration
of the period, no goods or cattle of a servant shall be detained
except by sentence of a competent court.]
VI. [All such contracts to be made in triplicate, one copy
to be given to each of the contracting parties, and one copy
to be filed by the officer of justice.]
VII. [Procedure in cases of dispute as to whether wages
have or have not been paid.]
VIII. [Contract with wife of Hottentot or free person of
colour, to be executed by her ; contract with children under 18,
to be executed by parents. Provided always, that nothing
therein contained shall give the employer of such parents
any claim on the services of the said children or of any other
children, beyond the period contracted for. No person shall
have a claim to the service of any children merely on the ground
that those children have been fed and clothed by such person
or have been born during the period of their parents’ service
with such person. Procedure if this rule is disobeyed.]
IX. [On the death of a Hottentot or free person of colour,
the contract with his wife and children shall become void
within one month after such death.]
X. [A contracting Hottentot or free person of colour may
keep his family on the premises of his employer without being
forced to yield the service of children not contracted for.]
XI. [Any Hottentot or free person of colour being above
the age of 18 may form a contract, as above directed.]
XII. [Any Hottentot or free person of colour may apprentice
his or her children for 7 years or until the children shall reach
28 CAPE OF GOOD HOPE [1828
the age of 18 in the case of males and 16 in the case of females.
Such indentures to be executed before an officer of justice, as
directed above.]
XIII. [If a Hottentot or free person shall desert or leave
behind by death his or her child, the employer shall forthwith
notify an officer of justice, who shall arrange for the apprentice-
ship of such child.]
XIV. [Procedure in apprenticing children.]
XV. [Children of Hottentots, prize negroes and negresses,
and other free persons of colour, to be indentured only with
their parents’ consent.]
XVI. [Apprentices indentured in virtue of previous pro-
clamations may be removed by a competent court from the
service of their employers, if they shall have been ill-treated,
and may be returned to their parents.]
XVII. [Certain provisions applied also to foreigners enter-
ing the Colony from beyond the frontier. Deaths of such
foreigners, and births of children in their families, to be notified
by their employer.]
XVIII. [Field-cornets to make to civil commissioners half-
yearly returns of births and deaths of Hottentots and free
persons of colour.]
XIX. [Disputes between masters or mistresses and their
servants to be tried by Resident Magistrates and in minor
matters by Justices of the Peace.]
XX. [In such disputes Justices are empowered to summon
before them any masters or mistresses concerned and any other
witnesses.]
XXI. [Penalties that may be inflicted on servants by
Resident Magistrates and Justices of the Peace in cases of ill
behaviour.]
XXII. [In cases of ill usage by a master or mistress the
servant may be discharged by a Magistrate or Justice and
an order made for payment of wages. Servants may further
recover damages for injury in any competent court.]
XXIII. [If wages are not paid as ordered, distress may be
levied on the master or mistress neglecting to pay.]
XXIV. [If the servant is poor, summons and process may
be issued free of charge. If a complaint by a servant against
his master or mistress turns out ” to be vexatious and untrue,”
then such servant may be punished by imprisonment with
hard labour not exceeding 14 days.]
XXV. [Fines levied for breach of this ordinance shall be
given, one-half to the informer and one-half to the Colonial
Treasury.]
P.R.O., C.O. 52/4 (C. ofG. H. Govt. Gazette,
25 July 1828).
1830] CENTRAL GOVERNMENT 29
ROMAN CATHOLIC RELIEF. [13 Jan. 1830.]
No. 68.
No. 21. Ordinance. Of His EXCELLENCY the GOVERNOR in
COUNCIL, For the Relief of His Majesty’s Roman Catholic
Subjects in this Colony.
WHEREAS an Act was passed in the loth year of His Present
Majesty’s Reign, intituled An Act for the Relief of His Majesty’s
Roman Catholic Subjects ; and whereas it is expedient, that
such Enactments and Provisions of the said Act as are or may
be applicable to this Colony, shall be extended thereto, so
altered and modified as to meet the circumstances of the case :
Be It Therefore Enacted . . . that after the commencement
of this Ordinance, it shall and may be lawful for any of His
Majesty’s Subjects professing the Roman Catholic Religion,
to hold, exercise, and enjoy all Civil and Military Offices and
Places of Trust or Profit, under His Majesty ; His Heirs or
Successors ; and to exercise any other Franchise or Civil Right,
upon taking and subscribing, at the times and in the manner
hereinafter mentioned, the following Oath, instead of the
Oaths of Allegiance, Supremacy, and Abjuration, and instead
of such other Oath or Oaths, as are or may be now by Law
required to be taken for the purpose aforesaid, by any of His
Majesty’s Subjects professing the Roman Catholic Religion :
“I, A. B., do sincerely promise and swear, that I will be
faithful and bear true Allegiance to His Majesty, King George
the Fourth and will defend Him to the utmost of my power
against all Conspiracies and Attempts whatever which shall
be made against his Person, Crown or Dignity ; and I will
do my utmost endeavour to disclose and make known to His
Majesty, His Heirs and Successors, all Treasons and traitorous
Conspiracies, which may be formed against Him or Them ;
And I do faithfully promise to maintain, support and defend,
to the utmost of my power, the Succession of the Crown,
which Succession, by an Act intituled An Act for the further
Limitation of the Crown and better securing the Rights and
Liberties of the Subject, is and stands limited to the Princess
Sophia, Electress of Hanover, and the Heirs of Her Body,
being Protestants ; hereby utterly renouncing and abjuring
any Obedience or Allegiance unto any other Persons, claiming
or pretending a Right to the Crown of the Realm of England :
And I do further declare, that it is not an Article of my Faith,
and that I do renounce, reject and abjure the opinion, that
Princes excommunicated or deprived by the Pope, or any other
Authority of the See of Rome, may be deposed or murdered
by their Subjects, or by any Person whatsoever : And I do
30 CAPE OF GOOD HOPE [1830
declare, that I do not believe that the Pope of Rome, or any
other Foreign Prince, Prelate, Person, State or Potentate,
hath or ought to have any Temporal or Civil Jurisdiction,
Power, Superiority or Pre-eminence, directly or indirectly,
within the Realm of England. I do swear, that I will defend,
to the utmost of my power, the Settlement of Property within
the Realm of England, as established by the Laws : And I
do hereby disclaim, disavow, and solemnly abjure any In-
tention to subvert the present Church Establishment, as settled
by Law within the Realm of England : And I do solemnly
swear, that I never will exercise any Privilege to which 1 am
or may become entitled, to disturb or weaken the Protestant
Religion, or Protestant Government in the United Kingdom,
or any of the Territories thereunto belonging ; And I do
solemnly, in the Presence of God, profess, testify, and declare,
that I do make this Declaration, and every part thereof, in
the plain and ordinary Sense of the Words of this Oath, without
any Evasion, Equivocation, or mental Reservation whatsoever.
So Help Me God. . . .”
VII. And it is further enacted, That if any Jesuit, or
Member of any such Religious Order, Community, or Society,
as aforesaid, shall, after the commencement of this Ordinance,
come into this Colony, he shall be deemed and taken to be
guilty of an Offence ; and being thereof lawfully convicted,
shall be sentenced and ordered to be banished from the Colony
for the term of his natural Life.
[Etc.] P.R.O., C.O. 50/1.
DEBATE IN THE HOUSE OF COMMONS.
[May 24, 1830.]
No. 22. PETITION FOR REPRESENTATIVE GOVERNMENT.
Lord Milton rose to present a Petition from British Settlers
and others resident at the Cape of Good Hope, praying for a
Representative Government. After calling the attention of
the House to the importance of the question which the Petition
raised, the respectability of the parties petitioning, and the
obligation there lay upon the Legislature to protect the in-
habitants of that colony from the effects of arbitrary power,
he proceeded to say, that he considered the arbitrary imposi-
tion of taxes as one of the most objectionable exertions of
arbitrary power. The Petition which he held in his hand was
from British Settlers, who desired to carry with them to the
colonies where they settled, the privileges which were the
boast of their native country ; and which they were accustomed
to enjoy before they left it. In order to convey to the House
1830] CENTRAL GOVERNMENT 31
a just view of the feelings of these colonists, he would call
attention to some of the sentiments expressed by the petitioners.
They expressed themselves deeply grateful for the benefits
already conferred upon them : for example, the Trial by
Jury, and other privileges enjoyed by Britons they thought
they should best show their just appreciation of those benefits
by seeking to attain the full blessings of the representative
system an object for which every class in that colony were
equally anxious. In these sentiments he fully concurred, the
more especially when he recollected how many British colonies
of less importance already enjoyed the benefits of a repre-
sentative system. When the inhabitants of the Cape of Good
Hope turned their attention to the other side of the Atlantic,
they perceived numerous colonies enjoying a representative
system perfect in all its parts; it was, therefore, exceedingly
natural that they should desire to possess that which others in
a similar situation had long enjoyed. He did not call upon the
House to institute any proceeding immediately for the purpose
of complying with the prayer of the petitioners ; but he
hoped that it would, at some time, and not very distant time,
take it into serious consideration ; and that when the time
came, whether soon or late, his Majesty’s Government would
do all in its power to prepare the inhabitants of that colony for
these privileges which they so earnestly desired to obtain,
and which it was as much for their advantage, as for that of
the mother country, should be conferred upon them. It was
indisputable that much misgovernment had prevailed at the
Cape ; whether that was owing altogether to the vices of our
own colonial system, or to the institutions of the Dutch, who
originally settled there, and their peculiar customs and usages,-
he would not undertake to say ; or whether those evils might
not arise from both causes, it was not for him to determine.
Of this, however, he was perfectly assured, that the only
cure was a representative government. There was one re-
flection, at all events, which naturally presented itself on an
occasion like the present, and it was of a very gratifying
character namely, that English settlers, wherever they went,
carried with them a love of English institutions.
Sir George Murray felt, that he should be wanting in respect
to the noble Lord, and in that due attention to the colonists
which he wished at all times to manifest towards them, if he
did not state a few of the considerations which rendered the
establishment of a representative system of government at
the Cape of Good Hope extremely inexpedient. The Petition,
the House would perceive, came from only a portion of the
Colony, and from that portion, too, in which slavery did not
exist and that made a material difference indeed there was
32 CAPE OF GOOD HOPE [1830
no country where slavery existed in which the expediency of
introducing a representative legislature might not most
seriously be doubted. The state of that colony, with reference
to population and civilization, ought also to be taken
into account. Its extent was nearly equal to that of the
United Kingdom about 600 miles long and 300 wide. The
colonists amounted to only 119,966 souls, of whom the slaves
amounted to 31,000, the free blacks to 35,000 and the whites
to 53,996. A population so scattered, and so circumstanced,
could but poorly exercise the privileges and powers of repre-
sentation. Again, the whites were divided into Dutch and
British, and if they had a Legislature, that body would be
divided into two parties and thus one of the most important
benefits of representation would be counteracted. Then the
House, he hoped, would not lose sight of the difficulty which
Parliament had always experienced in its attempts to ameliorate
the condition of the slaves wherever a colonial legislature
existed, and until something satisfactory could be done for
the slaves at the Cape of Good Hope, he should be unwilling
to see a representative government established there. Some-
thing had been said in disparagement of the successive govern-
ments at the Cape of Good Hope ; but he must take leave to
say, that the Hottentots would not have been put upon the
same footing with the colonists if the Cape had up to this
time remained in the hands of the Dutch. Another objection
to the introduction of the representative system was, that
were it once established, all the power would speedily centre
in the hands of those who resided in and near Cape Town, for
those who resided at a distance would never think public
affairs worth such a journey. Finally, he assured the House,
that if he could persuade himself that a representative govern-
ment would be at all likely to promote the true interests of
the settlers at the Cape, he should be amongst the first to
propose and recommend it; but he felt assured, that when
hon. Members weighed the reasons which he had urged, they
would see the expediency of not acceding to the prayer of the
present Petition.
Mr. Wilmot Horton admitted, that the colonists of the Cape
were not at the present moment prepared for representation,
but he looked forward to the time when they would be capable
of appreciating and exercising that privilege, and every other
to which those who were accustomed to live under the British
Constitution were accustomed. If the noble Lord were not
[now ?] to follow up the Petition by a motion to carry its prayer
into effect he should oppose it, but he should be most happy to
co-operate in the measures necessary to render the colonists
fit to enjoy the advantages which they sought.
1830] CENTRAL GOVERNMENT 33
Mr. Manyat said, that the statements in the Petition pre-
sented by the noble Lord from the Cape, were equally applic-
able to all the colonies under the care of the Crown ; a similar
vicious system of government existed in all of them ; and it
was not possible to remove the grievances complained of but
by granting the prayer of the Petition, and thus giving the
colonists some control over their taxation and expenditure.
These colonies were peculiarly situated. They had no inde-
pendent local legislatures of their own, nor were they repre-
sented in the Imperial Parliament ; but were under the im-
mediate patronage and control of the Crown, by whom the taxes
were levied and revenues appropriated. They presented,
indeed, a practical example of the effects of taxation without
representation. The colonists themselves had no control
whatever over their expenditure, and though the produce of the
taxes raised in the colony could not by law be appropriated to
any but colonial purposes, yet that wise provision was evaded
by the creation of new and useless offices, with high salaries
attached, the payment of which was charged upon the colonial
revenues. The revenues of the Crown colonies, he considered
himself justified in asserting, were ample to provide for every
necessary expense ; but insufficient to provide also for the
payment of extravagant salaries to governors, judges, and
custom-house officers, which absorbed the whole amount.
The current and necessary expenses had been, therefore, left to
be provided for by votes of that House ; and hence the com-
plaints, that these colonies did not pay their own expenses.
He contended that these colonies actually did pay their own
proper and necessary expenses ; but they could not pay in
addition those heavy salaries, unnecessarily charged upon
them. They were already taxed beyond all reasonable limits,
not for their own wants, but for the benefit of those who were
provided for at their expense. The colonial statements laid
before the Finance Committee afforded a striking comparison
of the relative taxation and expenditure of the two classes of
colonists, viz. : those having independent local legislatures,
and those under the paternal care of the Crown. Among the
latter class the colony of Trinidad figured as a solitary example
of an extravagant expenditure, sustained by enormous taxa-
tion. By the means of heavy imposts, levied exclusively upon
the planter, that colony had hitherto not only paid all its ex-
penses, but had saved from its surplus-revenue a sum of 6o,ooo/.
accumulated in the colonial treasury. The local authorities,
however, (by whom he meant the placemen and pensioners of
Trinidad, who are not planters, and did not personally feel the
weight of taxation), were then projecting the erection of un-
necessary public buildings and colonial palaces, which would
3
34 CAPE OF GOOD HOPE [1830
not only absorb this sum, but would entail for years to come a
continuance of the present burthens upon the colony. The
local authorities (who might be termed, to borrow an hon.
Baronet’s simile, the birds of prey who fed upon the vitals of
the colony) were, he was informed, by means of intrigue and
clamour, embarrassing and distracting the good intentions of
the new Governor, trusting thereby to throw its affairs into
such confusion as to oblige him to give up in despair the task
of cleansing that Augean stable. The subject, however, he had
reason to believe, was now under the consideration of the
Secretary of State for the Colonies, who (he was happy to take
this opportunity of stating) had, in every communication he
had had the honour to hold with him upon this most important
subject, evinced an earnest and anxious desire to investigate
and correct the abuses of our colonial system. The task was
Herculean, but he trusted, as there existed the desire, so the
means of reformation would not be wanting. He should state,
that during the short period in which the right hon. the member
for Liverpool held the seals of the Colonial office, a ray of light
beamed upon this unfortunate colony. The energetic measures
of reformation which he had time only to commence, and
which gave a promise of brighter days, ceased however with
his removal from office. That event was much regretted by
the colonists, who began to congratulate themselves in being
under the control of a Minister who was both willing and able
to carry his beneficial plans into effect. Should, however, the
just expectations of the colonists be disappointed, and another
season be suffered to elapse without any alleviation of their
sufferings, he should feel it his duty, early in the ensuing
Session, to bring their case under the consideration of the
House.
Mr. W. Smith expressed his regret that the right hon.
Secretary had not stated out of what materials a representative
Government could be formed.
Mr. Labouchere complained of a practice which had existed
for a long time in the Colonial Department, of sending out men
of broken fortunes to occupy situations in the colonies, by
which many serious evils arose to the colonies themselves.
He thought that if the names of all persons appointed to colonial
situations were inserted in the Gazette for some time before
they went out, the evil might be avoided, because a means would
thus be obtained of coming at a correct knowledge of the
character of the parties, and of their fitness for the appoint-
ments. He did not mention this as arising out of any appoint-
ments which had been made since the right hon. and gallant
officer came to the head of the Colonial Department, for, to do
him justice, he believed that since then no persons had been
1830] CENTRAL GOVERNMENT 35
sent out who were not properly qualified for the situations they
had to fill ; but the subject was one to which he thought it
necessary to call the right hon. and gallant officer’s attention.
Mr. Hume did not think, that the right hon. and gallant
officer had given very satisfactory reasons why the prayer of
the Petition presented by the noble Lord should not be com-
plied with. The complaint of the petitioners was, that British
subjects, who had been accustomed to live under the free
institutions of their own country, should, when they went out
to settle in a colony, be at once brought under the dominion of
arbitrary power. The nature of that government exposed it to
great abuses, and the result was, that wherever it existed the
improvement of the colony was greatly retarded. This had
been as strongly illustrated in the Cape of Good Hope as in any
colony he could name. The hon. and gallant officer had said,
that he did not think this colony would be fit for a representa-
tive system of government whilst slavery existed ; but he
begged to ask him, when did he expect that slavery would
cease there ? When would that portion of the inhabitants
be free ? When would they be fit for a representative govern-
ment ? The right hon. Gentleman had, he thought, removed
the period of freedom to an indefinite time. The right hon.
and gallant officer’s next objection was, he thought, as little
satisfactory as the other, namely, that of the distance to
which the population was scattered. Now in the Canadas it
was well known the inhabitants were scattered over a vast
extent of country, and that was not found to be a serious
objection to the establishment of a representative government.
When the Floridas were ceded to the United States, they were
at once incorporated into the national union, with a representa-
tive government, the distance at which many of the inhabit-
ants were scattered from one another being no obstacle,
because arrangements were easily made for meeting in the
most central part of the state. It was at present a just cause
of complaint, that England was taxed to pay for the expendi-
ture of colonies which would willingly support themselves, if
allowed to do so under a representative system ; but instead
of this, large sums were annually drawn from the pockets of
the people here to meet expenses which we ought not to be
called upon to pay. Give the colonies a representative system,
and they would willingly pay their own expenses ; though
they would not pay such large salaries to governors and other
officers as were now paid for them by the people of England.
What was the situation of this very colony of the Cape of Good
Hope ? It had been for years left under a tyrannical govern-
ment : he did not allude to any one individual in particular, but
the nature of the government was arbitrary, and it could not
36 CAPE OF GOOD HOPE [1830
be denied that it had been grossly abused. But what had
been the effect of the public opinion, to which the right hon.
and gallant officer had alluded ? Public opinion was, no doubt,
very powerful here, through the Press, which sent forth what
passed in that House to the world. Without such publicity, the
House would be a nuisance to the country. As it was, he did
not say it was of much benefit, but without the Press it would
be a nuisance a body which would have only to register the
acts of Government ; but even here, with all the advantages
of publicity, how far had that gone to remove the evils which
were complained of with respect to the Cape of Good Hope,
during so many years in which Lord Charles Somerset was
governor, and while Lord Bathurst was at the head of the
Colonial Department ? It was of little or no use in correcting
the evil. He must say, that a mere reliance upon the ex-
pression of public opinion would not be a sufficient guarantee
to the colonists against the evils of an arbitrary form of govern-
ment, or supply the check which a representative system would
have on the executive power. It was, he must also contend,
a libel upon Englishmen to say, that they were rendered, by a
difference of climate, unfit for a free constitution, or unworthy
of enjoying it. He must again express his regret at hearing
that there was to be no representative system in the colony
until slavery was removed, and the population so condensed
as that their representatives might come together without
much inconvenience, which was putting off freedom for
ever.
Dr. Lushington concurred in the general principle, that a
representative form of government would be the best for the
colonies, where circumstances permitted ; but at the same
time he fully agreed with the right hon. and gallant Secretary,
that that system could not at present be adopted for the Cape
of Good Hope without great danger to the best interests of
that colony. He admitted that the government should be for
the benefit of the many, and not for the few ; but he did not
think that that end would be obtained by a representative form
of government at the Cape. If he could believe that it would
have the effect of producing better regulations with respect
to slaves that it would improve the condition of the Hottentot
population he would’ most readily consent to it ; but until
he saw some disposition evinced by the colonies which had
representative governments to improve the condition of the
slaves, until he saw in them a disposition in the strong to
protect the weak, he should object to any extension of a
system, particularly where slave population existed, which
he had reason to believe would not produce those effects.
He thought therefore that it would be better to leave those
1830] CENTRAL GOVERNMENT 37
colonies which had not representative systems in the hands of
Government, which was responsible for the measures which it
adopted, rather than give them to those over whom we could
have no efficient control. He was glad of that opportunity
of expressing his gratitude to the right hon. and gallant officer
for the measures which he had adopted for improving the
condition of the Hottentot population. He had opportunities
of knowing the situation in which that race were at the Cape,
and also of knowing the effects which had been produced by
the measures to which he alluded, and how greatly they had
relieved that race from the gross oppression under which they
had so long suffered. He would not, at the present moment, go
into details upon the nature of that oppression, but were he to
describe the miserable condition in which the Hottentot popula-
tion were kept, he was sure the House could not hear it without
indignation and abhorrence. He would repeat, then, that as
long as he saw no measures adopted to put an end to slavery
as long as he saw an unwillingness in colonies with representa-
tive governments to improve the condition of their slave
population so long should he feel it his duty to oppose any
extension of the representative system in our colonies, and
the removal of the powers of government from the hands of
those who were responsible to Parliament for its exercise.
Sir G. Murray, in explanation, begged to say, that though
he had the good fortune of having had the opportunity of
carrying the measures for improving the condition of the
Hottentots, to which the hon. and learned Member had alluded,
into full operation, yet it would not be doing justice to others
if he did not state that those measures had been commenced
under the government of Lord Caledon, and were afterwards
acted upon to a considerable extent by General Bourke.
Mr. Robinson was decidedly of opinion, that free institutions
ought to be given the settlers at the Cape, and to all other
colonists, as soon as they were fit to receive them, and capable
of appreciating their value. He by no means understood
the noble Lord as recommending the immediate adoption of
a measure such as the petitioners prayed for all he urged
upon the consideration of the House was, the necessity of
speedily turning its attention to the subject, and taking such
preliminary steps as might forward the object in view. There
could be no doubt that flagrant abuses had existed in that
colon)’-, but they were not chargeable upon the present govern-
ment which was not to blame. There had existed a most
scandalous carelessness with respect to colonial functionaries.
Not long since a person was sent out as Chief-Justice of New-
foundland who contrived to swindle the people of that colony
out of a very large sum ; and an Attorney-General was sent
38 CAPE OF GOOD HOPE [1834
to the same place, who, though a person of better character,
was totally unfit for the office.
The Petition read.
Lord Milton, in moving that it be printed, said he was sorry
to learn that an improved system of government at the Cape
was to be postponed until slavery should be abolished.
Sir George Murray wished the House to analyse the com-
position of society at the Cape. The number of females was
55,000, males 64,000 ; from those deduct the Slaves, the Dutch,
the Hottentots, and the persons under age ; and the number
of British colonists capable of exercising the elective franchise
would be found exceedingly small.
Mr. Hume observed, that persons of Dutch descent, resident
at the Cape, were as much British subjects as any men could
be born in any colony.
Petition to be printed.
Hans. Part. Debates, N.S., vol. 24, p. 1005.
THE EMANCIPATION OF THE SLAVES.
3 & 4 W. iv. cap. 73.
No. 23. An Act for the Abolition of Slavery throughout the
British Colonies ; for promoting the Industry of the
manumitted Slaves ; and for compensating the Persons
hitherto entitled to the Services of such Slaves.
[On 28th August 1833 the bill for setting free the slaves in the
British dominions received the royal assent. Slavery was to cease
at a certain date, in the Cape Colony the ist of December 1834 was the
date fixed. Slaves over six years of age had to pass through a transi-
tion stage, a period of apprenticeship. The British Parliament voted
a sum of 20,000,000 to compensate the owners for the loss of their
slaves throughout the Empire. There were 39,021 slaves in the Colony
when the Act came into force, for which the owners were offered
^3,041,290, 6s. od. A number of special Justices of the Peace were
sent out from England and others were appointed in the country to
assist in carrying out the Act. Vide C. of G. Hope Ord., No. i of 1835.]
APPROPRIATION ORDINANCE FOR 1835. [3 Dec. 1834.]
No. 5, 1834.
No. 24. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof.
For applying a Sum not exceeding 40,590, is. 8|d., to the
Contingent Services of the Year 1835.
WHEREAS the Contingent Expenditure required for the
Service of the Year 1835, is estimated to amount to the Sum
of 40,590, is. 8|d. : Be it therefore enacted by the Governor
1836] CENTRAL GOVERNMENT 39
of the Cape of Good Hope, with the advice and consent of
the Legislative Council thereof, that a Sum not exceeding
40,590, is. 8|d. be charged upon the Revenue for the Con-
tingent Services of the Year 1835, and applied in the manner
set forth in the Schedule hereunto annexed. [Schedule follows
here.]
P.R.O., C.O. 50/1.
THE EASTERN DISTRICTS GOVERNMENT.
[19 Feb. 1836.]
No. 25. Grant for the Erection of the Eastern Districts of the
Cape of Good Hope into a Distinct Government.
WILLIAM the Fourth by the Grace of God of the United
Kingdom of Great Britain and Ireland King, Defender
of the Faith, To all to whom these Presents shall come,
Greeting.
WHEREAS by Letters Patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland, bearing date
at Westminster the twenty-third day of October in the fourth
year of Our Reign We did constitute and appoint Our trusty
and well-beloved Sir Benjamin D’Urban Knight Commander
of the Most Honourable Military Order of the Bath, Major-
General of Our Forces, to be Our Governor and Commander-in-
Chief in and over Our Settlement of the Cape of Good Hope in
South Africa with its Territories and Dependencies as also of
the Castle and all Forts and Garrisons erected or established
within the said Settlement, Territories and Dependencies for
and during Our Pleasure ;
And Whereas We have deemed it expedient that the Eastern
Districts of Our said Settlement of the Cape of Good Hope
should be erected for certain purposes into a distinct and
separate Government to be administered in manner herein-
after mentioned ;
Now therefore We do hereby declare Our Will to be and
by these Presents do constitute and appoint that the Districts
of Albany, Somerset, Uitenhage and Graaff Reynet within
the said Settlement shall henceforth constitute and become a
distinct and separate Government to be administered in Our
name and on Our behalf by a Lieutenant-Governor to be
by Us for that purpose appointed by Warrant under Our
Royal Sign Manual and Signet, to be countersigned by one of
Our Principal Secretaries of State and in the event of the death
or absence or incapacity of any such Lieutenant-Governor as
aforesaid then and in every such case Our Will and Pleasure
is that the said Office shall be administered provisionally
40 CAPE OF GOOD HOPE [1836
by some person to be for that purpose appointed by the
Governor and Commander-in-Chief or by the Officer for the
time being administering the Government of the said Settle-
ment of the Cape of Good Hope by a Commission to be for
that purpose issued under the Public Seal of the said Settle-
ment, which provisional appointment shall continue in force
until Our Pleasure shall be known and no longer ;
And We do hereby give and grant to such Lieutenant-
Governor for the time being, or to such person PS may be
provisionally appointed to administer the Government of the
said Districts of Albany, Somerset, Uitenhage and Graaff
Reynet as aforesaid, all such powers and authorities within
such Districts as by the said recited Letters Patent of the
twenty-third day of October in the fourth year of Our Reign
are granted to and vested in the said Sir Benjamin D’Urban
as Governor and Commander-in-Chief in and over the said
Settlement of the Cape of Good Hope; Subject nevertheless
to all such Rules and Regulations as shall be made and estab-
lished by such Instructions as hereinafter are mentioned
for the practicable and convenient exercise of such power and
authority ;
Provided, nevertheless, and We do hereby declare Our
Will and Pleasure to be that it shall be lawful for the said Sir
Benjamin D’Urban or for the Officer for the time being admin-
istering the Government of the said Settlement from time to
time as occasion shall require and as he shall be directed by
such Instructions as aforesaid to repair to the said Eastern
Districts and to assume the Government thereof in person ;
and during such his residence therein We do further declare Our
Pleasure to be that all and every the powers and authorities
in and by the said recited Letters Patent in him vested in and
over the said Eastern Districts shall revive, and that during
the same period or periods all and every the powers and
authorities by those Presents vested in such Lieutenant-
Governor shall be and are hereby suspended ;
Provided also, and We do further declare Our Will and
Pleasure to be that nothing herein contained shall extend
or be construed to extend to take away, abridge or alter all
or any of the powers and authorities in and by the said recited
Letters Patent given to the said Sir Benjamin D’Urban to
make, enact and ordain Laws and Ordinance for the Order,
Peace and good Government of Our said Settlement of the
Cape of Good Hope and its Dependencies with the advice and
consent of the Legislative Council thereof, but that he, the
said Sir Benjamin D’Urban or the Officer for the time being
administering the Government of the said Settlement, shall
have, hold, exercise and enjoy such power and authority as
1836] CENTRAL GOVERNMENT 41
aforesaid of making such Laws and Ordinances as aforesaid
with the advice and consent of the said Legislative Council
for any part of the said Settlement, the said districts of Albany,
Somerset, Uitenhage [and] Graaff Reynet included, as fully
and effectually as if these Presents had not been made ;
Provided also, and We hereby declare Our Will and Pleasure
to be that nothing herein contained shall extend or be con-
strued to extend to take away, alter or abridge the jurisdiction,
powers or authorities now by Law vested in the Supreme
Court of the Colony of the Cape of Good Hope or in the Judges
of the said Court or in the Courts of Circuit within the said
Settlement or in any other Courts or Court of Justice therein
or in the Judges of any such Courts or Court, but that all
such Jurisdictions, powers and authorities shall continue
to be exercised by such Courts and Judges respectively in
as full and ample a manner as if these Presents had not been
made.
And Our Will and Pleasure further is that in the execution
of the powers hereby vested in the said Lieutenant-Governor
for the time being or such person so provisionally appointed
as aforesaid, he do in all respects conform to and obey all
such Orders and instructions as shall for that purpose be
addressed to him by Us in Our Privy Council or under Our
Signet and Sign Manual or through one of Our Principal
Secretaries of State ;
And We do hereby revoke and annul so much and such
. parts of the said recited Letters Patent of the twenty- third day
of October in the Fourth year of Our reign as may in anywise
interfere with or prevent the execution of these Presents or
any part thereof ;
And We do hereby declare Our Will to be that for the pur-
poses and within the meaning of these Presents the District
of Beaufort shall not be considered as forming part of or as
comprized within the District of Graaff Reynet.
In Witness, etc. Witness, etc. the nineteenth day of Feb-
ruary [1836].
By Writ of Privy Seal.
P.R.O., Patent Roll, 6 W. iv. Part 12 (No. 16).
No. 26. PETITION FOR REPRESENTATIVE
GOVERNMENT.
[The following is one of several petitions of its kind sent to England
from time to time. The Governor recommended that the prayer should
be granted, but Lord Stanley in his reply, though not meeting the
petition by an irrevocable opposition, raised so many of the old
42 CAPE OF GOOD HOPE [1841
difficulties, adding one or two new ones of his own, that the matter
was dropped for a while.]
[Dispatched to England, 20 Dec. 1841.]
To the Queen s Most Excellent Majesty in Council.
THE HUMBLE PETITION OF THE INHABITANTS OF CAPE
TOWN AND ITS VICINITY.
Respectfully showeth, That the inhabitants of this colony,
being descended from the people of Holland, or British born
subjects who have more recently settled here since the Cape
became an integral portion of the British Empire, entertain
an hereditary sentiment of veneration for the free institutions
of the distinguished nations from which they sprang.
That the inhabitants of this colony are about 180,000 in
number ; that all of them are free and equal in the eye of
the law ; and that the whole of the landed proprietors and
capitalists reside on their estates or within the colony.
That the soil, climate and geographical position of this
colony are so favourable to agriculture and commerce, that
the unlimited extension of both may be confidently looked for,
under the industry of a people enjoying political liberty, and
permitted to direct the resources of the community in accord-
ance with the nature of the place, and the character and
habits of the population, which can only be understood and
appreciated by the people themselves.
That since the colony became a dependency of the British
Crown, the government of the Colony has been confided to the
hands of a single individual appointed by the Crown, who has
more recently been assisted, first by an Executive, and subse-
quently by an Executive and Legislative Council, all the
members of both being appointed by the Crown, all the mem-
bers of the first, and a majority of the members of the second,
also holding offices of trust and emolument under the Governor.
That this form of government appears to your Majesty’s
petitioners inadequate, under any administration, however
able and well disposed, to satisfy the social wants and desires
of the people, or to accommodate the requisite institutions of
society to the accumulating property, and increasing intelli-
gence and enterprise of the community.
That the inhabitants of this colony have long been deeply
impressed with this conviction, and are becoming every day
more uneasy, under a system of government in which they
have no share ; although all that they possess, or expect for
themselves or their posterity, is most materially affected by
its proceedings.
That at the present period, they think it unnecessary to
offer any arguments to your Majesty in favour of that form
of government of which your Majesty is the head, or to point
1845] CENTRAL GOVERNMENT 43
out the inevitable disadvantages under which a government
must labour which possesses no constitutional means of ascer-
taining public opinion, or to show that a people thus excluded
from all influence on the action of government, must advance
slowly, if at all, in the career of improvement. These facts
have been decided by the concurrent testimony of all ages.
They think it enough to represent to your Majesty, that in
numbers, wealth and intelligence, they consider this com-
munity fully prepared to take their place in the rank of free
countries, being assured that your Majesty only waited such
an assurance, before confiding to them their due weight in the
legislature of their own country.
Your Majesty’s petitioners therefore humbly pray, that
the government of this colony may as speedily as possible be
assimilated in principle and form to that of Great Britain, and
that it may be composed of a Governor appointed by the
Crown, an Executive Council also appointed by the Crown,
and a Legislative Assembly, composed of representatives freely
elected by the people.
And your Majesty’s petitioners will ever pray.
(Signed) H. WATSON.
J. B. EBDEN.
Aitd 614 others.
Par I. Papers, C.O. 400, p. 2.
NOMINATION OF MINISTERS OF RELIGION BY
THE CROWN, [i Dec. 1845.]
No. 16, 1845.
No. 27. Ordinance. Enacted by His Excellency the GOVERNOR
OF THE CAPE OF GOOD HOPE, with the advice and consent
of the LEGISLATIVE COUNCIL thereof.
To amend the Ordinance No. 7, 1843, entitled an ” Ordin-
ance for repealing the Church Regulations of the 25th July
1804, and enacting others in their room and stead.”
WHEREAS by the 5th section of the Ordinance No. 7, 1843,
entituled ” Ordinance for repealing the Church Regulations
of the 25th July 1804, an< i enacting others in their room and
stead,” it is provided that the governor of this colony for
the time being should have the right of filling up vacancies in
the office of minister in congregations belonging to the Dutch
Reformed Church in South Africa, of which congregations the
minister for the time being receives a salary from the colonial
government : and whereas it is expedient that the same right
should be vested in Her Most Gracious Majesty the Queen,
her heirs, and successors : Be it therefore enacted by the
governor of the Cape of Good Hope, with the advice and con-
44 CAPE OF GOOD HOPE [1848
sent of the Legislative Council thereof, that the 5th section
of the said ordinance shall be repealed, and the same is hereby
repealed accordingly.
2. And be it enacted, that in every case in which a vacancy
shall occur in the office of minister of any congregation belong-
ing to the said Dutch Reformed Church, of which congregation
the minister for the time being receives a salary from the
colonial government, her Majesty the Queen, her heirs, and suc-
cessors shall have and possess, and shall exercise, in whatever
manner she or they shall deem the best for the vacant con-
gregation, the sole and unrestricted right of filling up such
vacancy by the appointment of whatever individual she or
they may select from amongst the number of such ministers
as shall, by the rules and regulations of the said church
for the time being, be competent to be appointed to supply
vacancies in the ministry thereof. 1
3. And be it enacted, that this Ordinance shall commence
and take effect from and after the date of promulgation
thereof. P.R.O., C.O. 50/2.
PUBLIC MEETINGS. [12 Dec. 1848.]
No. 15, 1848.
No. 28. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof. For amending the Law rela-
tive to Public Meetings.
WHEREAS by a Proclamation of His Excellency the then
Governor, Lord Charles Henry Somerset, bearing date the
24th of May 1822, the said Governor saw fit to declare and
enact that Public Meetings, convened without the sanction
and authority of the Governor for the time being, or when
such sanction or authority cannot be conveniently obtained
without the sanction and authority of the Chief Local Magis-
trate, for the discussion of Public Measures or Political Sub-
jects, were, and should be deemed to be, contrary to Law :
And whereas there is nothing in the state and condition of this
Colony which requires or justifies the continuance of a re-
straint, so inconvenient and invidious, upon the libertv of
speech and freedom of discussion which Her Majesty vouch-
safes to regard as the birth-right of Her Subjects : And whereas
it is expedient to remove the said restraint : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council thereof, that
1 Act No. 5 of 1875 put an end to all government grants towards ministers’
salaries.
1852] CENTRAL GOVERNMENT 45
the Proclamation aforesaid of the 24th May 1822, and every
other law heretofore in force in this colony, whereby Public
Meetings for the discussion of Public Measures and Political
Subjects are declared or constituted illegal, unless held with
or under the previous sanction and authority of the Governor
of the Colony for the time being, or of some other Functionary
or Magistrate, shall be repealed, and the same are hereby
repealed accordingly.
2. And be it enacted, that this Ordinance shall commence
and take effect from and after the promulgation thereof.
GOD SAVE THE QUEEN.
P.R.O., C.O. 50/2.
No. 29. THE CAPE OF GOOD HOPE CONSTITUTION
ORDINANCE. [3 April 1852.]
[As amended and confirmed by Order in Council, dated n
March 1853. Declared to take effect from i July 1853.]
i. WHEREAS Her Majesty did by certain Letters Patent,
bearing date at Westminster, on the 23d day of May, in the
thirteenth year of her reign, amongst other things, declare
and ordain that there should be within the settlement of the
Cape of Good Hope a Parliament, to consist of the Governor,
a Legislative Council, and House of Assembly ; and did
declare, ordain, and appoint that the said Legislative Council
(subject to the exception herein-after contained) and the said
House of Assembly should consist and be constituted of such
persons as should be elected in such manner and form, and for
such terms and under such regulations, as should for that
purpose be prescribed in any Ordinance or Ordinances to be
for that purpose passed by the Governor of the said settlement,
with the advice and consent of the then present Legislative
Council thereof ; provided, nevertheless, that it should be
prescribed in and by such Ordinance or Ordinances that the
Chief Justice of the Colony of the Cape of Good Hope for the
time being should be, by virtue of his office, a member of the
said Legislative Council, and should preside over the same ;
provided also, that every such Ordinance should contain a
clause suspending the operation of the same until it should
have been confirmed by Her Majesty, with the advice of her
Privy Council ; and Her said Majesty did thereby declare her
will and pleasure that the said Governor, with the advice and
consent of the Legislative Council and House of Assembly
so to be constituted and elected in manner and form aforesaid,
should have authority to make laws for the peace, welfare,
and good government of the said settlement ; and that in
46 CAPE OF GOOD HOPE [1852
the said Ordinance or Ordinances for constituting the said
Legislative Council and House of Assembly, provisions should
be made for enabling and empowering the said Governor to
transmit to the said Legislative Council or House of Assembly,
for their consideration, the drafts of any laws which it might
appear to him desirable to introduce, and also any amendments
for the consideration of the said Legislative Council and House
of Assembly (if he should so think fit) in any bill presented to
him for Her said Majesty’s assent, and for prescribing the
manner in which such drafts of laws and amendments should
be dealt with by the said Legislative Council and House of
Assembly, and for determining the regulations under which
bills appropriating sums of money to the public service might
be introduced in such Assembly, amended, and finally enacted ;
and for empowering the said Governor, from time to time, in
the exercise of his discretion, to dissolve such Legislative
Council and House of Assembly together, or such House of
Assembly separately : And whereas Her said Majesty did
thereby reserve to herself full power and authority, by an
Order or Orders to be made by her in her Privy Council, to
alter or amend such Ordinance or Ordinances as should be so
passed as aforesaid, for the purpose of constituting and estab-
lishing the said Council and Assembly, and for such other
purposes as are therein-before specified : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council thereof, that the
Legislative Council and House of Assembly for the said Colony
shall be severally constituted and composed as is herein-after
provided.
2. And be it enacted, That the said Legislative Council
shall consist of the Chief Justice for the time being of the said
Colony, and of fifteen elective members ; and the said Chief
Justice (when present) shall preside in the said Council :
Provided that it shall be at all times lawful for the said Chief
Justice (notwithstanding his so acting as President) to take
part in any debate or discussion which may arise in the Legis-
lative Council.
3. And be it enacted, That five members of the said Council
shall form a quorum for the despatch of business ; and all
questions arising in the said Council shall be decided by a
majority of votes of the members present other than the
presiding member ; but when the votes shall be equal the
presiding member shall have the casting vote.
4. And be it enacted, That of the fifteen elective members
of the said Council, eight shall be elected by the majority of
the votes taken, as herein-after mentioned, of the voters
in and for the following electoral divisions of the said Colony
1852] CENTRAL GOVERNMENT 47
collectively ; that is to say, the divisions of the Cape (exclusive
of the city of Cape Town), Stellenbosch, Caledon, Swellendam,
George, Beaufort, the Paarl, Worcester, Malmesbury, Clan-
william, and the city of Cape Town (including the muni-
cipality of Green Point), which divisions shall for the purposes
of this Ordinance constitute and are herein-after collectively
referred to as the western districts ; and the remaining seven
of the said members shall be elected by the majority of votes
so taken of the voters in and for the following electoral divisions
of the said Colony collectively ; that is to say, the divisions of
Albany (exclusive of the town of Graham’s Town), Uitenhage,
Port Elizabeth, Fort Beaufort, Victoria, Albert, Somerset,
Graaff-Reinet, Cradock, Colesberg, and the town of Graham’s
Town, which divisions shall for the purposes of this Ordinance
constitute and are herein-after collectively referred to as the
eastern districts.
5. 1 And be it enacted, That of the fifteen members first
elected of the said Council, eight, that is to say, four of those
elected for the western districts, and four of those elected for
the eastern districts respectively, shall vacate their seats at
the expiration of five years from the date of such first election,
and the members who shall so vacate their seats shall be those
of the members elected for the western districts and eastern
districts respectively who have been elected by fewest votes ;
and in case, by reason of any such members having been elected
by an equal number of votes, it be uncertain which of such
members should vacate his seat, the Governor shall cause such
question to be determined by lot among such members elected
by an equal number of votes, such lot to be drawn in the
presence of one of the Judges of the Supreme Courts, and of
such members or their agents authorized in writing (in case
such member or agents think fit to attend) ; and the remaining
seven members shall vacate their seats at the expiration of
ten years from the date of such first election ; and upon the
vacating of their seats by such eight members and such seven
members respectively, there shall be elected for the western
districts and eastern districts respectively, a number of members
of the said Council, equal to the number of members elected
for such districts respectively, whose seats have become
vacant, and the members to be so elected shall hold their
seats for ten years from the date of their election, so that all
the elective members of the said Council, save the aforesaid
eight members of the fifteen first elected, shall hold their seats
for the term of ten years, and so that there shall be an election
of eight members, and an election of seven members alternately,
1 Cf. the Parliamentary Representation Acts No. 19 of 1898 and 5 of 1904,
not printed in this volume,
48 CAPE OF GOOD HOPE [1852
at the end of every five years for ever : Provided that every
member vacating his seat under the provisions of this section
shall be eligible to be re-elected, and provided that nothing
herein contained shall prevent the Governor from at any time
dissolving the said Council, under the power herein-after in
that behalf contained.
6. And be it enacted, That the House of Assembly of the
Cape of Good Hope shall consist of forty-six members, elected
in the manner herein-after in that behalf provided, for a
term of five years from the date of election, and that twelve
members, exclusive of the member presiding in the said
Assembly, shall form a quorum for the despatch of business ;
and that all questions which shall arise in the said Assembly
shall be decided by a majority of votes of the members present,
other than the presiding member ; and that when the votes
shall be equal, the presiding member shall have the casting vote.
7. And be it enacted, That the divisions of the Cape
(exclusive of the city of Cape Town), Malmesbury, Stellenbosch,
the Paarl, Clanwilliam, Swellendam, Caledon, George, Uiten-
hage, Port Elizabeth, Albany (exclusive of the town of Graham’s
Town), Fort Beaufort, Victoria, Albert, Somerset, Graff-
Reinet, Cradock, Colesberg, Beaufort, and Worcester, and the
city of Cape Town, and the town of Graham’s Town, shall,
respectively, be electoral divisions within the meaning and
for the purposes of this Ordinance ; provided that for the
purposes of this Ordinance the division of the city of Cape Town
shall include the municipality of Green Point. . . .
8. And be it enacted, That every male person, not subject
to any of the legal incapacities herein-after mentioned, who
shall have occupied within any electoral division for the space
of twelve months next before the day on which any such
registration of voters as is herein-after mentioned shall com-
mence, any house, warehouse, shop, or other building, being
either separately or jointly, with any land within such electoral
division, occupied therewith, of the value of twenty-five l
pounds sterling ; or who shall have been, for the space of
twelve months aforesaid, really and bona fide in the receipt
of salary or wages at and after the rate of not less than fifty
pounds by the year ; or who having been in the receipt for
the space aforesaid, of salary or wages at and after the rate
of not less than twenty-five pounds by the year, shall, in
addition to such salary or wages, have been supplied with
board and lodging, 2 shall be entitled to be registered as a
voter, and to vote at elections of members of the said Council,
and of members of the said House of Assembly. . . .
1 Cf. Act No. 9 of 1892, Cl. 4, Sect, (a) below.
8 Cf. Act No. 9 of 1892, Cl. 4, Sect. (6) below.
1852] CENTRAL GOVERNMENT 49
9. [Certain joint occupiers entitled to be registered.]
10. And be it enacted, That no person shall be entitled
to be registered as a voter, or to vote at any election of members
of the Legislative Council or Assembly of the Cape of Good
Hope, unless he be of the full age of twenty-one years, and
either a natural born subject of Her Majesty the Queen, or a
subject of Her Majesty the Queen who, though not natural
born, was, before and on the eighteenth of January one
thousand eight hundred and six, a subject of the Batavian
Government, resident in this colony, and who, from thence
hitherto, has resided or maintained a domicile in the said
Colony, or unless, if of alien birth, and not such a subject as
last aforesaid, he shall have been naturalized by some Act of
the Parliament of Great Britain and Ireland, or of the Legis-
lature of the Cape of Good Hope, 1 or shall before the com-
mencement and taking effect of this Ordinance have obtained
a deed of burghership, and that no person shall be entitled to
be registered as a voter or to vote who is of unsound mind,
or who shall have been convicted of and sentenced for treason,
murder, rape, theft, fraud, perjury, or forgery, unless he shall
have received a free pardon.
11. [Register of voters in each electoral division to be
formed.]
12. [Lists of voters for the several field-cornetcies, how to
be framed.]
13-32. [Manner of making out voters’ lists.]
33. And be it enacted, That no person shall be qualified
to be elected a member of the said Council who would, under
and by virtue of any of the provisions of this Ordinance,
be incapacitated to be registered as a voter as herein provided,
or who shall be under the age of thirty years ; or who shall
not be the owner, for his own use and benefit, of immoveable
property situate within the districts of this Colony, western or
eastern, as the case may be, for which he shall be elected, of
the value of two thousand pounds of sterling money, over and
above all special conventional mortgages affecting the same;
or who shall not, being the owner of such property to such
value, but under mortgage, be at the same time possessed of
property moveable and immoveable within the said Colony to
the value of not less than four thousand pounds of sterling
money, over and above his just debts : Provided always, that
every married man shall, for the purpose of this and every
other section of the present Ordinance which regards the owner-
ship or occupation of property, be deemed and taken to own or
occupy (as the case may be) the whole of the property belonging
1 By Act No. 47 of 1905 all ex-burghers of the S. A. Republic and the O. F.
State were allowed to vote if they possessed the other necessary qualifications.
4
50 CAPE OF GOOD HOPE [1852
to his wife : Provided also, that no person holding any office of
profit under Her Majesty the Queen within the said Colony,
and no uncertificated insolvent, and no alien who shall have
been registered as a voter by virtue merely of having obtained
a deed of burghership, shall be eligible to be elected a member
of the said Council.
34-37. [Manner of nominating candidates for the Legis-
lative Council.]
38. And be it enacted, That all persons whose names shall
be inserted in the list of voters for any electoral division, but
no other persons, shall be entitled to vote in and for such
electoral division for members of the Legislative Council. . . .
39-45. [Manner of conducting the poll and publishing the
results in the case of the Legislative Council.]
46. And be it enacted, That for the purpose of constituting
the House of Assembly of the Cape of Good Hope it shall and
may be lawful for the voters in or for each of the twenty-two
electoral divisions herein-before mentioned, except the city of
Cape Town, to elect two qualified men, and no more, to be the
representatives of such electoral division, and for the voters
in or for the electoral division of Cape Town to elect four
qualified members, and that every voter in every electoral
division shall be entitled to give at each election as many
votes as there are members of Assembly to be elected at such
election : Provided always, that in no electoral division,
except Cape Town, shall any voter be capable of giving to any
one candidate more votes than one ; provided also, that
in the electoral division of Cape Town every voter shall be
entitled, at his discretion, to give at any such election one vote
to each of any number of the candidates, not exceeding the
whole number of members to be elected, or to distribute,
in such proportions as he shall think fit, the whole number
of votes which he is entitled to give among any lesser number
of candidates, or to give all his votes to one candidate. 1
47. And be it enacted, That any person (except as is next
herein-after excepted) who shall be qualified and entitled
to be registered as a voter in and for any electoral division
within the said Colony shall be qualified and entitled to be
elected a member of the Legislative Assembly for any electoral
division within the said Colony : Provided also, that no person
holding any office of profit under Her Majesty the Queen within
the said Colony, and no uncertificated insolvent, and no alien
who shall have been registered as a voter by virtue merely of
having obtained a deed of burghership, shall be eligible to be
elected a member of the said Legislative Assembly.
1 Cumulative voting in the Cape Town electoral division was abolished by
Act No. i6of 1893.
1852] CENTRAL GOVERNMENT 51
48. [Nomination of candidates for the Legislative
Assembly.]
49-59. [Time, place, and manner of voting for members
of the Assembly.]
60. And be it enacted, That so soon as every electoral
district in the Colony shall have either elected or failed in
electing its representatives in the House of Assembly, it shall
and may be lawful for the Governor of the Cape of Good Hope
to summon, by proclamation, the Legislative Council and the
House of Assembly of the Cape of Good Hope to meet at such
place within the said Colony, and at such time as the said
Governor shall think fit : Provided always, that the said Council
and Assembly shall be summoned to meet at some period not
later than twelve months next after the promulgation of this
Ordinance in the said colony.
61-62. [Oath or affirmation to be made by all members
of the two Chambers.]
63. And be it enacted, That the House of Assembly shall,
at its first meeting, and before proceeding to the despatch of
any other business, elect one member thereof to be and be
called the Speaker of such House. . . .
64. [Declaration of property qualification to be made by
each member of the Council.]
65-66. [Property qualification must be possessed during
the whole time that a member of Council retains his seat.]
67. [Grounds of disqualification may be brought by petition
before a committee of the Council.]
68. [Similar procedure with regard to alleged disqualifica-
tion of members of Assembly.]
69. And be it enacted, That it shall be lawful for any mem-
ber of the Legislative Council of the Cape of Good Hope, by
writing under his hand, addressed to the President of the
said Council, to resign his seat in the said Council, and upon
such resignation the seat of such member shall become
vacant.
70. And be it enacted, That it shall be lawful for any
member of the House of Assembly of the Cape of Good Hope,
by writing under his hand, addressed to the Speaker of the
said Assembly, to resign his seat in the said Assembly, and
upon such resignation the seat of such member shall become
vacant.
71. And be it enacted, That if any legislative councillor
of the Colony of the Cape of Good Hope, or any member of the
House of Assembly thereof, shall for one whole session of the
Parliament of the said Colony fail to give his attendance in the
House of Assembly to which he belongs, without the per-
mission of such house, or shall take any oath or make any
52 CAPE OF GOOD HOPE [1852
declaration of acknowledgment of allegiance, obedience, or
adherence to any foreign prince or power, or shall do, concur
in, or adopt any act whereby he may become a subject or
citizen of any foreign state or power, or if his estate shall be
sequestrated as insolvent, the seat of such councillor or member
of the Assembly shall thereby become vacant.
72. And be it enacted, That no member of the Legislative
Council shall be eligible for a seat in the House of Assembly ;
and that if any member of the House of Assembly shall be
elected a member of the Legislative Council, the former seat
of such member shall, ipso facto, become vacant.
73. [Election, how to take place on vacancies.]
74. And be it enacted, That it shall and may be lawful for
the Governor of the Cape of Good Hope, whenever he shall see
fit so to do, to prorogue, either by speech or proclamation
published in the Government Gazette, the Legislative Council
and the House of Assembly of the said colony, and also, either
by speech or by any such proclamation, to dissolve the said
Council and the said House of Assembly, or dissolve the said
House of Assembly without dissolving the said Council.
75. [Arrangements for a general election to be as described
above.]
76. [Provision for a biennial registration of voters.]
77. And be it enacted, That there shall be a session of the
Parliament of the Cape of Good Hope once at least in every
year, so that a period of twelve calendar months shall not
intervene between the last sitting of the said Parliament in
one session and its first sitting at next session.
78. [Standing rules and orders to be framed by each
Chamber for itself.]
79. And be it enacted, That it shall be lawful for the Colonial
Secretary, the Attorney-General, the Treasurer, and the
Auditor of the said Colony to sit and take part in any debate
or discussion which may arise in* either the Legislative Council
or the House of Assembly, subject nevertheless to any such
standing rules and orders as are herein-before mentioned ;
but that it shall not be lawful for them to vote on any proceed-
ing in either house.
80. And be it enacted, That it shall not be lawful for the
House of Assembly or the Legislative Council to pass, or for
the Governor to assent to, any bill appropriating to the public
service any sum of money from or out of Her Majesty’s revenue
within the said Colony, unless the said Governor, on Her
Majesty’s behalf, shall first have recommended to the House
of Assembly to make provision for the specific public service
towards which such money is to be appropriated ; and that
no part of Her Majesty’s revenue within the said Colony shall
1852] CENTRAL GOVERNMENT 53
be issued except under the authority given by the Governor
of the said Colony directed to the public treasurer thereof.
81. And be it enacted, That it shall and may be lawful for
the Governor of the Cape of Good Hope to transmit, by mes-
sage, to either the Legislative Council or the House of Assembly,
for their consideration, the drafts of any laws which it may
appear to him desirable to introduce, and all such drafts shall
be taken into consideration in such convenient manner as
shall in and by the rules and orders aforesaid be in that behalf
provided : Provided always, that the said Governor shall not
transmit to the Legislative Council the draft of any law which
ought, under and in virtue of the provisions of this Ordinance,
to originate in or be introduced into the House of Assembly.
82. And be it enacted, That whenever any bill which has
been passed by the Legislative Council and Assembly of the
Colony of the Cape of Good Hope shall be presented for Her
Majesty’s assent to the Governor of the said Colony, such
Governor shall declare, according to his discretion, but subject
nevertheless to the provisions contained in this Ordinance,
and to such instructions as may from time to time be given in
that behalf by Her Majesty, Her heirs and successors, that he
assents to such bill in Her Majesty’s name, or that he refuses
his assent to such bill, or that he reserves such bill for the
signification of Her Majesty’s pleasure thereon : Provided
always, that it shall and may be lawful for the Governor,
before declaring his pleasure in regard to any bill which shall
have been so presented to him, to make such amendments in
such bill as he shall think needful or expedient, and by message
to return such bill, with such amendments, to the Legislative
Council or the House of Assembly, as he shall think more fitting ;
and the consideration of such amendments by the said Council
and Assembly respectively shall take place in such convenient
manner as shall, in and by the rules and orders aforesaid, be in
that behalf provided.
83. And be it enacted, That whenever any bill which shall
have been presented for Her Majesty’s assent to the Governor
of the said Colony of the Cape of Good Hope shall, by such
Governor, have been assented to in Her Majesty’s name, such
Governor shall, by the first convenient opportunity, transmit
to one of Her Majesty’s Principal Secretaries of State an
authentic copy of the act so assented to ; and that it shall be
lawful, at any time within two years after such bill shall have
been received by such Secretary of State, for Her Majesty, by
Order in Council, to declare Her disallowance of such act, and
that such disallowance, together with a certificate under the
hand and seal of such Secretary of State, certifying the day on
which such bill was received as aforesaid, being signified by
54 CAPE OF GOOD HOPE [1852
such Governor to the Legislative Council and Assembly of the
Cape of Good Hope, by speech or message to the Legislative
Council and Assembly of the said Colony, or by proclamation,
shall make void and annul the same from and after the date
of such signification.
84. And be it enacted, That no bill which shall be reserved
for the signification of Her Majesty’s pleasure thereon shall
have any force or authority within the colony of the Cape of
Good Hope until the Governor of the said Colony shall signify,
either by speech or message to the Legislative Council or
Assembly of the said Colony, or by proclamation, that such
bill has been laid before Her Majesty in Council, and that Her
Majesty has been pleased to assent to the same ; and that an
entry shall be made in the journals of the said Legislative
Council of every such speech, message, or proclamation, and
a duplicate thereof, duly attested, shall be delivered to the
proper officer, to be kept amongst the records of the said
Colony ; and that no bill which shall be so reserved as afore-
said shall have any force or authority in the said Colony unless
Her Majesty’s assent thereto shall have been so signified as
aforesaid within the space of two years from the day on which
such bill shall have been presented for Her Majesty’s assent
to the Governor as aforesaid.
85. And be it enacted, That the Governor of the Cape of
Good Hope shall cause every act of the Parliament of the
Cape of Good Hope which he shall have assented to in Her
Majesty’s name to be printed in the Government Gazette, for
general information, and such publication by such Governor
of any act of the said Parliament shall be deemed to be in law
the promulgation of the same.
86. [Copies of acts of Parliament to be enrolled.]
87. [Certificates of disallowance of acts of Parliament to be
enrolled.]
88. And be it enacted, in regard to all bills relative to the
granting of supplies to Her Majesty, or the imposition of any
impost, rate, or pecuniary burden upon the inhabitants, and
which bills shall be of such a nature that if bills similar to
them should be proposed to the Imperial Parliament of Great
Britain and Ireland such bills would, by the law and custom
of Parliament, be required to originate in the House of Com-
mons, That all such bills shall originate in, or be by the Governor
of the Cape of Good Hope introduced into the House of
Assembly of the said Colony : Provided that the Legislative
Council of the said colony, and the Governor thereof, shall
respectively have full power and authority to make in all
such bills such amendments as the said Council and the said
Governor shall respectively regard as needful or expedient ;
1852] CENTRAL GOVERNMENT 55
and the said Council and the said Governor may respectively
return such bills, so amended, to the House of Assembly or
the Legislative Council.
89. And be it enacted, That all debates and discussions in
the Legislative Council and House of Assembly respectively
shall be conducted in the English language, and that all
journals, entries, minutes, and proceedings of the said Council
and Assembly be made and recorded in the same language.
90. And be it enacted, That each member of the Legis-
lative Council and each member of the House of Assembly
whose ordinary place of residence shall be situate at a greater
distance than ten miles from the place or places in which the
said Council and Assembly shall respectively assemble shall
be entitled to be paid from the public treasury of the said
Colony the sum of one pound sterling per day, for every day
during which such member shall be engaged in travelling to, and
returning from, and attending at, any session of Parliament
of the said Colony : Provided always, that such payment shall
in no case be made for more than fifty days in any one calendar
year ; and that every such member shall also be entitled to be
paid a further sum of one shilling for every mile which he shall
necessarily travel in coming to and returning from any such
session : Provided always, that no part of such sums shall
become payable to any member in any session until after
an act providing funds for the public service of the current
year shall have been passed by the said Council and Assembly,
and assented to by the Governor.
91. [Interpretation of terms, Natal not included in the
Cape Colony.]
92. And be it enacted, That this Ordinance shall commence
and take effect within the Colony of the Cape of Good Hope
from and after such date as Her Majesty shall, by the advice
of Her Privy Council, fix for that purpose.
Part. Papers, Copies of Two Cape Ords.,
presented June 14, 1853, p. 3.
No. 30. RESERVED CIVIL LIST ORDINANCE.
[Ord. No. 3 of 1852.!]
WHEREAS Her Majesty did, by certain Letters Patent,
bearing date at Westminster on the twenty-third day of May
in the thirteenth year of her reign, amongst other things,
declare and ordain that there should be within the settlement
1 Confirmed by Order in Council, 11 March 1853 ; repealed by Act No. 15
of 1896,
56 CAPE OF GOOD HOPE [1852
of the Cape of Good Hope a Parliament, to consist of the
Governor, a Legislative Council, and House of Assembly :
And whereas by an Ordinance intituled ” Ordinance enacted
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, for constituting
a Parliament for the said Colony,” provision has been made
for constituting a Legislative Council and House of Assembly
for the said Colony, and for denning the powers of the same :
And whereas it is expedient that provision should be made for
defraying certain expenses out of the revenue of the said
Colony :
1. Be it therefore enacted, by the Governor of the Cape of
Good Hope, with the advice and consent of the Legislative
Council thereof, That the said Governor shall be authorized
to pay out of the revenue of the said Colony all the costs,
charges, and expenses incident to the collection, management,
and receipt thereof : Provided always, that full and particular
accounts of all such disbursements shall from time to time be
laid before the Parliament of the said Colony.
2. And be it enacted, That, until the Parliament of the
said Colony shall otherwise direct, there shall be payable
every year to Her Majesty, Her heirs and successors, out of
the said revenue fund, the sum of one hundred and six thousand
and ninety pounds, for defraying the expenses of the several
services and purposes in the Schedules (marked A, B, C, and
D) annexed to this Ordinance ; the said sum to be issued by
the Treasurer of the said Colony, in discharge of such warrant
or warrants as shall be from time to time directed to him
under the hand and seal of the Governor.
3. And be it enacted, That in construing this Ordinance
the word ” Governor ” shall mean any officer for the time
being administering the government of the Cape of Good
Hope.
4. And be it enacted, That this Ordinance shall commence
and take effect within the Colony of the Cape of Good Hope
from and after such date as Her Majesty shall, by the advice
of Her Privy Council, fix for that purpose.
[SCHEDULES.
1854] CENTRAL GOVERNMENT 57
SCHEDULES REFERRED TO IN THE FOREGOING ORDINANCE.
/ s. d.
SCHEDULE A.
4
The Governor and Private Secretary . 5,300
The Lieutenant – Governor, Secretary,
Messenger, and House-rent . . 2,200
The Clerk of the Executive Council . 520
The Colonial Secretary and his department 5 , 500
The Treasurer-General do. . 1,890
The Auditor-General do. . 1,6150
s.
o
o
o
o
d.
o
o
o
o
o
The Registrar of Deeds do. . i
,000
o
o
The Surveyor-General do. . 2
,080
o
The Civil Engineer do. . 2
,250
o
o
The Post-Office department . . 2
.33
o
The Keeper of the Public Buildings
2 3S
o
o
The Agent-General in London .
2IO
o
o
The Secretary and Clerks of the Central
Road Board . . i
,140
o
o
The Supreme Court
7
.935
o
The High Sheriff
i
,250
o
o
The Attorney-General
i
,670
o
o
Divisional Courts
. 16
.335
o
o
Education establishments
4
,100
o
o
Medical departments
i
,895
o
,o
Police, Prison, and Gaols . i
.540
o
o
61,030 o o
SCHEDULE B.
Pensions ……. 15,000 o o
SCHEDULE C. 1
Public Worship …… 16,060 o o
SCHEDULE D.
Border department (Aborigines) . . . 14,000 o o
106.090 o o
Ibid. p. 21.
FREEDOM OF SPEECH IN PARLIAMENT.
I assent to this Bill in Her Majesty’s name.
(Signed) C. H. DARLING, Lt.-Governor,
19 September 1854.
No. i of 1854.
No. 31. An Act to Secure Freedom of Speech and Debates,
or Proceedings in Parliament, and to give summary Pro-
tection to Persons employed in the Publication of Parlia-
mentary Papers.
WHEREAS it is essential to the due and effectual exercise
and discharge of the functions and duties of Parliament, and
1 Repealed by Act No. 5 of 1875.
58 CAPE OF GOOD HOPE [1854
to the promotion of wise Legislation, that the Freedom of
Speech and Debates, or Proceedings in Parliament, should not
be impeached or questioned in any court or place out of Parlia-
ment, and that no obstructions or impediments should exist
to the Publication of such Reports, Papers, Votes, or Pro-
ceedings of either House of Parliament as such House of Parlia-
ment may deem fit or necessary to be published : And whereas
it is fit that such Freedom should be secured by Law, and that
all such obstructions or impediments, should any arise, may
be summarily removed : Be it therefore enacted by the
Governor, by and with the advice and consent of the Legis-
lative Council and the House of Assembly, that there shall
be Freedom of Speech and Debates, or Proceedings in Parlia-
ment, and that such Freedom of Speech and Debates, or Pro-
ceedings in Parliament, shall not be liable to be impeached
or questioned in any court or place out of Parliament.
II. And be it enacted, that it shall and may be lawful for
any person or persons who may be a defendant or defendants
in any civil or criminal proceeding, commenced or prosecuted
in any manner soever, for or in respect of the publication of
any Report, Paper, Votes, or Proceedings, by such person
or persons, by or under the authority of either House of Parlia-
ment, to bring before the court in which such proceeding shall
be commenced or prosecuted, or before any judge thereof
(should the proceedings be in the Supreme or any Circuit
Court), first giving twenty-four hours’ notice of his intention
so to do to the plaintiff or prosecutor in such proceeding, a
certificate under the hand of the President of the Legislative
Council for the time being, or of the Clerk of the Legislative
Council, or of the Speaker of the House of Assembly, or of the
Clerk of the same House, stating that the Report, Paper, Votes,
or Proceedings, as the case may be, in respect whereof such
civil or criminal proceeding shall have been commenced or
prosecuted, was or were published by such person or persons,
or by his or their servant or servants, by order or under the
authority of the Legislative Council, or the House of Assembly,
as the case may be, together with an affidavit verifying such
certificate ; and such court or judge shall thereupon immedi-
ately stay any such civil or criminal proceeding ; and the
same and every writ or process issued thereon shall be, and
the same shall be deemed and taken to be, finally put an end
to, determined, and superseded, by virtue of this Act.
III. Provided always and it is hereby expressly declared
and enacted, that nothing herein contained shall be deemed,
or taken, or held, or construed, directly or indirectly, by
implication or otherwise, to affect the rights and privileges of
Parliament, in any manner whatsoever,
1865] CENTRAL GOVERNMENT 59
IV. That in construing this Act, the word ” Governor ”
shall mean any Officer for the time being lawfully adminis-
tering the Government of this Colony.
Given at Government House, this Nineteenth September
1854-
By Command of His Honour the Lieut. -Governor,
(Signed) RAWSON W. RAWSON,
Colonial Secretary.
Certified correct as passed by the Certified correct as passed by the
Legislative Council. House of Assembly.
(Signed) JNO. WYLDE, (Signed) C. J. BRAND,
President. Speaker,
ist September 1854.
P.R.O., C.O. 50/3.
INCORPORATION OF BRITISH KAFFRARIA.
No. 3 of 1865. [10 Oct. 1865.]
No. 32. Act to make provision for the Incorporation of British
Kaffraria with the Colony of the Cape of Good Hope,
and to increase the number of the Members of both Houses
of Parliament of the said Colony.
[Kaffraria became a British Crown Colony in 1847, the govern-
ment offices being situated at King William’s Town.]
WHEREAS by the third section of the Imperial Act, 28th
of Her Majesty, chapter 5, the Parliament of the Cape of Good
Hope is empowered to make provision for the incorporation
of the territory of British Kaffraria with the Cape of Good
Hope, and it is enacted that when and as soon as the Governor
of the Cape of Good Hope, as Governor of British Kaffraria,
assents, in manner and form as in the said section is set forth,
to the provision so made, then, and from and after the date
of such assent, British Kaffraria shall become incorporated
with the Cape of Good Hope, on the terms of such provision,
for all purposes whatever, as if British Kaffraria had always
formed part of the Cape of Good Hope : And whereas it is
expedient tha 1 : such provision as aforesaid should be made,
and that the same should take effect when and as soon as the
Governor of British Kaffraria shall, by virtue of his powers
as such Governor, and by laws and ordinances by him made,
have divided British Kaffraria into two parts, to form, after
such incorporation as aforesaid, electoral divisions of the Cape
of Good Hope, each of which shall be entitled to send two
members to the House of Assembly of the Cape of Good Hope,
and shall have defined and named such electoral divisions,
60 CAPE OF GOOD HOPE [1865
and shall have effected a registration of voters entitled to
vote according to the qualification of voters fixed and estab-
lished by the fourth section of the Constitution Ordinance
of the Cape of Good Hope, and shall have declared the quali-
fication of persons capable of being elected to be, after such
incorporation as aforesaid, members of the House of Assembly
aforesaid, such qualification to be that described in the forty-
seventh section of the Constitution Ordinance aforesaid,
and shall have provided for the conduct of the election of such
members, in like manner, so far as may be, as if such election
were to take place under the provisions of the said Constitu-
tion Ordinance, and when and as soon as the said election
shall have been held : Be it enacted … as follows :
I. [Repugnant part of Constitution Ordinance, etc., re-
pealed.]
II. From and after the day upon which the Governor . . .
shall . . . publish the names of the members returned . . .
by each of the two electoral divisions of British Kaffraria,
then British Kaffraria shall become incorporated with the
Cape of Good Hope, for all purposes whatever, . . .
III. The four members aforesaid shall be added to the
number of the members of the House of Assembly of the Cape
of Good Hope. . . .
IV. The two electoral divisions aforesaid shall, from and
after such incorporation as aforesaid, become and remain
electoral divisions of the Cape of Good Hope, entitled to be
each represented by two members in the House of Assembly,
and shall, for the purpose of the election of members of the
Legislative Council … be comprised in and form part of
the Eastern Districts, within the meaning and for the pur-
poses of the Constitution Ordinance. . . .
VI. [Supreme Court of British Kaffraria abolished. Eastern
Districts Court substituted.]
XII. [Repugnant laws of British Kaffraria repealed.]
XIII. [Laws, duplicates of, or identical with, Cape laws,
repealed.]
XV. [British Kaffrarian insolvent law repealed and Cape
law substituted.]
XVI. [Revenues to be payable to the Cape Colony and to
be collected as in the Cape Colony by civil commissioners.
Customs-officers to collect as at the other Cape ports.]
XX. . . . And whereas it is expedient that the number
of the elective members of the Legislative Council of the Cape
of Good Hope should be increased to twenty-one, and that
the number of the members of the House of Assembly of the
said Colony should be increased to sixty-six, such number to
include the four members aforesaid to be returned by the two
1871] CENTRAL GOVERNMENT 61
electoral divisions . . . which . . . formed the territory of
British Kaffraria : Be it enacted as follows :
XXI. [Legislative Council to consist of twenty-one
members.]
XXII. Three of the six members required to complete the
number of twenty-one members shall be elected by the Western
Districts, and three by the Eastern Districts, of this Colony.
XXIV. For the purpose of electing the sixteen members
required, together with the four members in the second, third,
and fourth sections of this Act mentioned, to complete the
number of sixty-six members of the House of Assembly, the
following ten fiscal divisions shall be, and the same are hereby
constituted, respectively, electoral divisions, that is to say,
Aliwal North, Namaqualand, Oudtshoorn, Piketberg, Rivers-
dale, and Queenstown, whilst the fiscal divisions of Victoria
West and Fraserburg shall together constitute a seventh
electoral division, and the fiscal divisions of Hope Town and
Richmond shall together constitute an eighth electoral division.
XXV. Each of the said eight electoral divisions shall be
entitled … to elect two members of the House of Assembly.
[Etc.]
P.R.O., C.O. 50/4.
ANNEXATION OF BASUTOLAND. [n Aug. 1871.]
No. 12 of 1871.
No. 33. Act. For the Annexation to the Colony of the Cape
of Good Hope of the Territory inhabited by the Tribe of
People called Basutos. [Vide also No. 170.]
WHEREAS by a Proclamation dated the I2th day of March
1868, by His Excellency Sir Philip Wodehouse, . . . published
on the I3th day of March 1868, in the Government Gazette of
this Colony, it was declared that from and after the publication
thereof, the Tribe of the Basutos should be and should be
taken to be for all intents and purposes British subjects,
and the territory of the said tribe should be and should be
taken to be British Territory : And whereas the territory is
contiguous, on a considerable portion of its boundary, to the
boundary of this Colony, and it is for other reasons also desir-
able that the said territory should be annexed to this Colony,
so that this Colony in its present extent, together with the said
territory, may form one Colony : And whereas the said tribe
of the Basutos are not yet sufficiently advanced in civilization
and social progress to be admitted to the full enjoyment and
be subjected to the full responsibility granted and imposed
respectively by the ordinary laws of the Colony to and upon
62 CAPE OF GOOD HOPE [1871
the other citizens thereof, but it is expedient that for the time
being the said tribe and the territory thereof should be sub-
jected to special administration and legislation : Be it there-
fore enacted by the Governor of the Cape of Good Hope, with
the advice and consent of the Legislative Council and House
of Assembly thereof, as follows :
I. That from and after the publication by the Governor
of the Colony of a proclamation for bringing this Act into
operation the said territory, bounded as follows, that is to say :
From the junction of the Cornet Spruit with the Orange
River, along the centre of the former to the point nearest
to Olifants Been ; from that point by Olifants Been, to the
southern point of Langeberg ; along the top of Langeberg, to
its north-western extremity ; from thence to the eastern point
of Jammerberg; along the top of Jammerberg, to its north-
western extremity ; from thence by a prolongation of the same
to the Caledon River ; along the centre of the Caledon River
to its junction with the Klein Caledon ; along the centre of the
Klein Caledon, to the heads of the Orange River, at the Mount
Aux Sources ; thence westward along the Drakensberg, between
the watersheds of the Orange River and the St. John’s River,
to the source of the Tees, down the centre of that river to its
junction with the Orange River, and down the centre of the
latter river to its junction with the Cornet Spruit, shall be and
the same is hereby annexed to the Colony of the Cape of Good
Hope, so that the territory heretofore included in the Colony
of the Cape of Good Hope shall, for the future, together with
the said territory hereinbefore defined form the Colony of the
Cape of Good Hope, but the territory hereinbefore denned shall
nevertheless be and remain, for the time being, subject to the
laws, rules and regulations now in force therein for the Govern-
ment thereof, and shall not by virtue of such annexation as
hereinbefore is mentioned be or become subject to the general
law of this Colony.
II. [Power to frame, repeal, or amend laws for the annexed
territory is vested in the Governor. Cape laws to apply only
when specially extended to the said territory. All laws, etc.,
to be laid before Parliament, who may disallow them.]
III. [Cape courts to have jurisdiction in certain cases.]
IV. [Annexed territory to be called Basutoland.]
V. This Act may be cited as ” The Basutoland Annexa-
tion Act, 1871.”
P.R.O., C.O. 50/5.
1872] CENTRAL GOVERNMENT 63
RESPONSIBLE GOVERNMENT. [28 Nov. 1872.]
No. i of 1872.
I reserve this Bill for the Signification of Her Majesty’s pleasure.
HENRY BARKLY, Governor.
GOVERNMENT HOUSE,
CAPE TOWN, 18 June 1872.
No. 34. Act. To amend the Ordinance enacted on the 3rd
of April 1852, by the GOVERNOR OF THE COLONY OF THE
CAPE OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof, intituled ” An Ordinance
for Constituting a Parliament for the said Colony.”
WHEREAS it is expedient, in order to the introduction of
the system of executive administration, commonly called
Responsible Government, to amend in certain respects the
Ordinance enacted on the third day of April, in the year 1852,
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, intituled ” An
Ordinance for Constituting a Parliament for the said Colony ” :
Be it enacted by the Governor of the Cape of Good Hope, with
the advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
I. From and after the taking effect of this Act, there shall
be in this Colony a certain office to be called the office of
” Commissioner of Crown Lands and Public Works,” and a
certain other office to be called the office of ” Secretary for
Native Affairs.”
II. The persons to hold the said offices respectively shall
be appointed by Her Majesty the Queen, and shall hold office
during Her Majesty’s pleasure, and shall be charged with such
duties as Her Majesty shall from time to time assign to them.
III. The following persons holding offices of profit under
Her Majesty the Queen shall be eligible, if otherwise duly
qualified under the provisions of the Ordinance aforesaid,
to be elected as members of the Legislative Council or of the
House of Assembly, anything in the thirty-third and forty-
seventh Sections of the Ordinance aforesaid to the contrary
notwithstanding, that is to say, the Colonial Secretary, the
Treasurer of the Colony, the Attorney-General, the Commis-
sioner of Crown Lands and Public Works, and the Secretary for
Native Affairs : Provided, always, that it shall be lawful to
appoint to any such office as aforesaid any person being alrea dy
at the time of such appointment a member of the said Council
or of the said Assembly.
IV. It shall be lawful for any person holding any of the
offices in the third section of this Act mentioned, and being
likewise a member of either the Legislative Council or of the
64 CAPE OF GOOD HOPE [1874
House of Assembly, to sit and take part in any debate or dis-
cussion which may arise in the House whereof he does not
happen to be a member, subject, nevertheless, to any such
standing rules and orders, as are in the seventy-eighth section
of the Ordinance aforesaid mentioned ; but it shall not be
lawful for any such officer to vote on any proceeding in such
House whereof he shall not be a member.
V. From and after the taking effect of this Act, the seventy-
ninth section of the Ordinance aforesaid shall be, and the same
is hereby repealed.
VI. [Pensions of present Executive Officers secured, but
pensions to merge, or be reduced, on the reappointment of
pensioners to office.]
VII. [Salaries of officers mentioned in Section III.]
VIII. [These officers not entitled to pensions.]
IX. This Act shall commence and take effect when and so
soon as the Governor shall by proclamation 1 declare that Her
Majesty has been pleased to allow and confirm the same.
X. This Act may be cited for all purposes as ” The Con-
stitution Ordinance Amendment Act, 1872.”
P.R.O., C.O. 50/5.
AMENDMENT OF THE CONSTITUTION ORDINANCE.
No. 18 of 1874.
No. 35. Act. To amend the Constitution Ordinance and Act
No. 3 of 1865, and to repeal Act No. 6 of 1859. [Assented
to 31 July 1874.]
WHEREAS it is”expedient, in] order to secure to the electors
a more equal exercise of the franchise, to divide the Colony of
the Cape of Good Hope into seven electoral provinces, for the
purpose of electing the members of the Legislative Council,
and to alter in other respects, the constitution of the said
Council : And whereas it is necessary, for the purposes afore-
said, to amend the Constitution Ordinance and Act No. 3 of
1865, and to repeal Act No. 6 of 1859 : Be it enacted by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council and House of Assembly thereof,
as follows :
I. [Sections 4 and 5 of the Constitution Ordinance, Act No. 6
of 1859,2 an d section 31 of Act No. 3 of 1865, repealed. The pres-
ent Council to be deemed to have been elected for five years.]
II. For the purpose of electing hereafter the twenty-one
elective members of the said Council, as provided for by the
1 Prod., 28 Nov. 1872.
2 Providing that when the number of candidates for the Legislative Council
did not exceed the number of vacancies no poll would be necessary.
1877] CENTRAL GOVERNMENT 65
twenty-first section of Act No. 3 of 1865, the Colony of the
Cape of Good Hope shall be divided into seven electoral pro-
vinces, and such provinces shall respectively consist of the
electoral divisions following, that is to say :
1 . The western electoral province shall consist of the electoral
divisions of Cape Town, Cape Division, Stellenbosch, and Paarl.
2. The north-western electoral province shall consist of
the electoral divisions of Worcester, Malmesbury, Piquetberg,
Namaqualand, and Clanwilliam.
3. The south-western electoral province shall consist of
the electoral divisions of Swellendam, Caledon, Riversdale,
Oudtshoorn, and George.
4. The midland electoral province shall consist of the
electoral divisions of Graaff-Reinet, Richmond, Beaufort West,
and Victoria West.
5. The south-eastern electoral province shall consist of
the electoral divisions of Port Elizabeth, Uitenhage, Grahams-
town, Albany, and Victoria East.
6. The north-eastern electoral province shall consist of the
electoral divisions of Somerset East, Fort Beaufort, Cradock,
Colesberg, and Albert.
7. The eastern electoral province shall consist of the
electoral divisions of King William’s Town, East London,
Queen’s Town, Aliwal North, and Wodehouse.
III. [Each electoral province to elect three members, who
shall vacate their seats every seven years.]
VIII. [Members of either house vacate their seats by
accepting offices of profit, except the offices of Colonial Secre-
tary, Treasurer, Attorney-General, Commissioner of Crown
Lands and Public Works, and Secretary for Native Affairs.]
X. This Act may be cited for all purposes as the ” Con-
stitution Ordinance Amendment Act, 1874.”
P.R.O., C.O. 50/5.
ANNEXATION OF TRANSKEIAN TERRITORIES.
[15 Aug. 1879.]
No. 38 of 1877. [Reserved by Governor.]
No. 36. Act. To provide for the Annexation to the Colony
of the Cape of Good Hope of the Country situated be-
tween the Bashee and the Kei, commonly known as Fingo-
land and the Idutywa Reserve, and the Country situated
between the Umtata and the Umzim-Kulu, commonly
known as Nomansland, and for the government of the said
Territories.
IV. This Act may be cited as the ” Transkeian Annexation
Act, 1877.” P.R.O., C.O. 50/6.
5
66 CAPE OF GOOD HOPE [1877-82
ANNEXATION OF GRIQUALAND WEST.
[Confirmed 15 Aug. 1879.]
Act No. 39 of 1877. [Reserved by Governor.]
No. 37. Act. To make provision for the Annexation to this
Colony of the Province of Griqualand West. 1
XXXIV. This Act may be cited as the ” Griqualand West
Annexation Act, 1877.” P.R.O., C.O. 50/6.
EQUAL LANGUAGE RIGHTS IN PARLIAMENT.
No. i of 1882.
No. 38. Act. To amend the Constitution Ordinance. [As-
sented to 25th May 1882.]
WHEREAS it is expedient to amend the Ordinance enacted
on the third day of April 1852, by the Governor of the Cape
of Good Hope, with the advice and consent of the Legislative
Council thereof intituled ” An Ordinance for Constituting a
Parliament for the said Colony ” : Be it enacted by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council and House of Assembly thereof,
as follows :
I. So much of the Eighty-ninth Section of the said
Ordinance as is repugnant to or inconsistent with the provisions
of this Act shall be and the same is hereby repealed.
II. From and after the passing of this Act all debates and
discussions in the Legislative Council and House of Assembly
may be conducted either in English or Dutch, but in no other
language.
III. This Act may be cited as the ” Constitution Ordinance
Amendment Act, 1882.” P.R.O., C.O. 50/7.
REPRESENTATION OF KIMBERLEY IN
PARLIAMENT.
No. 13 of 1882.
No. 39. Act. To grant Increased Representation in the House
of Assembly to the Electoral Division of Kimberley.
[Assented to 2ist June 1882.]
WHEREAS it is desirable to amend Act No. 39 of 1877,
known as ” The Griqualand West Annexation Act, 1877,” by
1 See documents Nos. 84 and 171. The annexation was only effected on 1 5th
Oct. 1880 by Procl. in the Gazette, after this Act received the royal assent.
1883] CENTRAL GOVERNMENT 67
making provision for an increase in the number of the repre-
sentatives now returned to the House of Assembly for the
Electoral Division of Kimberley : Be it enacted by the
Governor of the Cape of Good Hope, by and with the advice
and consent of the Legislative Council and the House of
Assembly thereof, as follows :
I. So much of the fifth section of Act No. 39 of 1877,
known as ” The Griqualand Annexation Act, 1877,” as: may be
repugnant to or inconsistent with this Act, is hereby repealed.
II. At the next ensuing general election, and thereafter,
the Electoral Division of Kimberley shall be entitled to return
to the House of Assembly of the Cape of Good Hope four
members.
III. This Act may be cited as the ” Kimberley Increased
Representation Act, 1882.”
P.R.O., C.O. 50/7.
DISANNEXATION OF BASUTOLAND. [18 March 1884.]
No. 34 of 1883. [Reserved.]
No. 40. Act. For the Disannexation of Basutoland from the
Colony of the Cape of Good Hope.
WHEREAS it is desirable that Basutoland should cease
to form part of the Colony of the Cape of Good Hope ; and
whereas Her Majesty’s Imperial Government has expressed
its willingness to provide for the future Government of Basuto-
land upon certain conditions ; and whereas it is expedient
that due provision should be made for relieving this Colony
from all responsibility for or in connection with the Govern-
ment of Basutoland : Be it enacted by the Governor of the
Cape of Good Hope, with the advice and consent of the Legis-
lative Council and House of Assembly thereof, as follows :
I. The Act No. 12, 1871, intituled ” An Act for the Annexa-
tion to the Colony of the Cape of Good Hope of the Territory
inhabited by the tribe of people called the Basutos,” shall be
and the same is hereby repealed.
II. From and after the taking effect of this Act, there shall
be paid annually to Her Majesty’s High Commissioner, or
such other officer as Her Majesty may be pleased to appoint
in that behalf, as a contribution towards any deficiency that
may arise in the revenues of the Government of Basutoland,
out of the public revenue of this Colony, such sum, not exceed-
ing twenty thousand pounds, as may be hereafter from time
68 CAPE OF GOOD HOPE [1884-85
to time agreed upon by and between Her Majesty’s Imperial
Government and the Government of this Colony.
III. This Act shall come into operation when the Governor
shall by proclamation declare that Her Majesty has been
pleased to allow and confirm the same.
IV. The short title of this Act shall be the ” Basutoland
Disannexation Act, 1883.”
P.R.O., C.O. 50/7.
ANNEXATION OF WALFISH BAY.
[Promulgated 25 July 1885.]
No. 35 of 1884.
No. 41. Act. To provide for the Annexation to the Colony
of the Cape of Good Hope of the Port or Settlement of
Walfish Bay on the West Coast of Africa and of certain
Territory surrounding the same, and of certain British
Territories on the St. John’s River in South Africa.
[By Letters Patent dated I4th December 1878 the Governor
of the Cape Colony had been authorised to declare the port,
settlement, and territory of Walfish Bay annexed to the Cape
Colony.]
P.R.O., C.O. 50/7.
ANNEXATION OF TEMBULAND.
[A Bill to provide for the annexation of Tembuland was passed
in 1880 but was not confirmed.]
[Promulgated 14 July 1885.]
No. 3 of 1885.
No. 42. Act. To provide for the Annexation to the Colony of
the Cape of Good Hope, of the British Territories known
as Tembuland, Emigrant Tembuland, Gcalekaland and
Bomvanaland, and for the Government of the said
Territories.
[Letters Patent of 2 Oct. 1884, had authorised the annexation.]
1. [Governor may proclaim 1 date of annexation.]
2. [The laws at present in force in these territories may,
until otherwise provided by Parliament, be repealed and
modified and new laws may be made by the Governor in
Council. No Cape Acts to apply, unless expressly provided or
imless extended to any of these territories by the Governor
in Council.]
1 Procl. in the Gazette of i Sept. 1885, but dated 26 Aug.
i886] CENTRAL GOVERNMENT 69
3. [Eastern Districts Court to have jurisdiction over the
annexed territories.]
4. [Resident Magistrates to have jurisdiction in crimes and
offences not punishable by death.]
5. [Decisions may be reviewed by the Chief Magistrate of
the territory concerned.]
6. [Appeals in civil cases may be made to the Chief Magis-
trate, or to the Supreme Court, or to the Eastern Districts
Court.]
7. This Act may be cited as the ” Tembuland Annexation
Act, 1885.”
P.R.O., C.O. 50/7.
ANNEXATION OF THE XESIBE COUNTRY.
[25 Oct. 1886.]
No. 37 of 1886. [Reserved.]
No. 43. Act. To provide for the Annexation to the Colony
of the Country known as the Xesibe Country.
WHEREAS by Resolution passed in both branches of the
Legislature it has been declared to be expedient that the
country situated between the district of Kokstad in Griqualand
East and Pondoland East, known as the Xesibe Country, com-
prised in the district now called Mount Ayliff, should be
annexed to the Colony : And whereas it is the intention of
Her Majesty the Queen to issue her Royal Letters Patent to
authorise the Governor of the Cape of Good Hope, by a pro-
clamation under his hand and the public seal of this Colony, to
declare that from and after a day to be therein mentioned,
the said country should be annexed to, and form part of, this
Colony, and to determine and signify the limits of the said
country so annexed, in case the Legislature of the Colony
should have passed an Act providing that the said country
should become a part of this Colony : And whereas it is
expedient that such an Act should be passed : Be it, therefore,
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
1. [Governor may proclaim the Xesibe Country to be
annexed to the Colony and form part of Griqualand East.]
2. This Act may be cited as the ” Xesibe Country Annexa-
tion Act, 1886.”
P.R.O., C.O. 50/7.
70 CAPE OF GOOD HOPE [1887
REPRESENTATION OF THE TRANSKEI.
[Promulgated gth August 1887.]
No. 30 of 1887.
No. 44. Act. To provide for the Representation in the Parlia-
ment of this Colony of persons in the Transkeian Territories.
[Preamble.]
1. [Meaning of ” Transkeian Territories ” : The Transkei
(including Gcalekaland) , Tembuland (including Emigrant
Tembuland and Bomvanaland), and Griqualand East (in-
cluding the Territory on the St. John’s River).]
2. [Transkeian Territories to be included in the Eastern
Electoral Province of the Cape Colony.]
3. Within the said Transkeian Territories there shall be two
Electoral Divisions of the Colony of the Cape of Good Hope,
and each of such divisions shall be entitled to return one
member to the House of Assembly of the Colony.
4. [One shall be called the Electoral Division of Tembuland,
and the other the Electoral Division of Griqualand East.]
5. [Election of representatives in the same manner,
mutatis mutandis, as other members of the Assembly.]
6. [Law of the Colony as to elections to apply.]
7. This Act shall take effect on the first day of September
1887, and may be cited as the ” Transkeian Territories Repre-
sentation Act, 1887.”
P.R.O., C.O. 50/7.
ANNEXATION OF RODE VALLEY, [i Nov. 1887.]
No. 45 of 1887. [Reserved.]
No. 45. Act. To provide for the Annexation to the Colony
of the Country known as the Rode Valley.
WHEREAS by resolution passed in both branches of the
Legislature, it has been declared to be expedient that the
country situated between the districts of Mount Ayliff and
Mount Frere, East Griqualand, and Eastern Pondoland,
commonly called the ” Rode Valley,” acquired by the Colonial
Government, by purchase from the Pondo Chief Umquikela,
should be annexed to the Colony : And whereas it is the
intention of Her Majesty the Queen to issue her Royal Letters
Patent to authorise the Governor of the Cape of Good Hope,
by a proclamation under his hand and the public seal of this
Colony, to declare that from and after a day to be therein
mentioned, the said country should be annexed to and form
part of this Colony, and to determine and signify the limits of
the said country so annexed, in case the Legislature of the
CENTRAL GOVERNMENT 71
Colony should have passed an Act providing that the said
country should become a part of this Colony : And whereas
it is expedient that such an Act should be passed : Be it,
therefore, enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. From and after such day as the Governor shall, pursuant
of the powers in that behalf contained in any Royal Letters
Patent which may be issued for that purpose, by proclamation
under his hand and the public seal of the Colony, fix in that
behalf, the country in the preamble to this Act mentioned,
or so much of the said country as shall be defined in or by any
such proclamation, and with the limits and name in any
such proclamation signified, shall be annexed to and become
a part of that portion of the Colony known as Griqualand
East, and be subject to the laws for the time being in force in
such portion of the Colony.
2. This Act may be cited as the ” Rode Valley Annexation
Act, 1887.”
P.R 0., C.O. 50/7.
THE AUDITING OF PUBLIC ACCOUNTS.
[21 August 1888.]
No. 32 of 1888.
No. 46. Act. To make further provision for the Audit of
the Public Accounts.
Be it enacted by the Parliament of the Cape of Good Hope,
in Parliament assembled, 1 as follows :
1. [Sections 18 and 19 of Act. No. 30 of 1875 and a portion
of the 35th section of Ordinance No. 105, repealed.]
2. [Accounts rendered by persons or public bodies of public
money received, administered, etc., and subject to audit, to
be certified as correct by persons rendering them. Punishment
for wilfully rendering a corrupt certificate.]
3. [Other accounts and returns to be rendered when re-
quired by the Controller and Auditor-General.]
4. [Certificate may be required of person examining
vouchers of public accounts that vouchers have been ex-
amined and are correct : such certificate, supported by internal
evidence of vouchers, may be admitted as satisfactory evi-
dence of payments vouched.]
1 The formula is noteworthy as a departure from the constitutional theory
that the Crown, or through it the Governor, is the fount and origin of all
legislation. Cf. Act. No. 15 of 1888 below. The Acts of 1880 reverted to
the old formula.
72 CAPE OF GOOD HOPE [1888
5. The Treasury shall be divided into at least two branches,
those of the Receiver-General and Paymaster-General.
6. The Assistant Treasurer shall be the Receiver-General
of revenue, and all Civil Commissioners and the Agent-General
of the Colony in England shall be Receivers of Revenue.
7. All accounts rendered by Receivers of revenue shall
be included in, and their aggregate shall be styled, the Ex-
chequer Account of the Colony.
8. The Assistant Treasurer shall also be the Paymaster-
General of the Colony.
9. All taxes, duties, and other revenues, and the proceeds
of all loans for the service of the general government, shall be
payable to, and levied by, such persons as the Governor may
direct, anything contained in Ordinance No. 43, bearing date
the 28th of February 1828, and Act No. 3 of 1876 to the con-
trary notwithstanding ; and, when not collected by, shall be
paid in to, a Receiver of revenue, in accordance with regula-
tions framed under the provisions of the sixth section of the
Audit Act, 1875, and, except in so far as may otherwise be
directed in such regulations, all such revenues and proceeds
of loans shall be carried without deduction to the credit of the
Exchequer Account of the Colony.
10. [Detailed examination of vouchers in auditing heads
of revenue referred to in the Schedule may be dispensed with
if accounts bear evidence of complete examination and proper
certificates ; but the collection and account of moneys must be
satisfactorily proved.]
1 1 . [Power of the Controller and Auditor-General not limited
by the I5th section of the Audit Act of 1875 or the loth section
of this Act.]
12. No money shall be issued out of the Exchequer Account
of the Colony, except :
(a) on requisition of Ministers, and of the Speaker of
the House of Assembly under section 17 of
Act 13, 1883, authorised and approved by the
Controller and Auditor-General, under the 7th
section of the ” Audit Act, 1875,” or
(6) in accordance with regulations framed under the
provisions of the ” Audit Act, 1875.”
13. [Assistant Treasurer or other officer substituted for
Treasurer-General for examination of wards’ books required
by 35th section of Ordinance No. 105. l ]
14. [Deduction from salary of officer of amount duly
surcharged against him ; such deduction not to exceed one-
quarter of salary due.]
16. [Short title : ” Audit Act Amendment Act, 1875.”]
1 Regulating the administration of the property of minors.
1889-92] CENTRAL GOVERNMENT 73
SCHEDULE.
Railway, Postal, Telegraph and Customs Revenue, Port
and Harbour Dues, Rent (exclusive of Land Rent and Tolls),
Fines, Forfeitures and Fees of Court (Judicial), Fees of Office,
Sales of Government Property, Reimbursements, Excise
Duty, and such other Heads of Revenue as Parliament may
by resolutions adopted by both Houses direct.
P.R.O., C.O. 50/7.
SALARY OF HIGH COMMISSIONER FOR SOUTH
AFRICA. [Promulgated lath August 1889.]
No. 38 of iSSg. 1
No. 47. Act. To provide for the Salary of Her Majesty’s
High Commissioner for South Africa. [Assented to I2th
August 1889.]
Be it enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. [High Commissioner to receive out of the public revenue
of the Colony the annual salary of 3000.]
2. [Short title : ” The High Commissioner’s Salary Act,
1889.”]
P.R.O., C.O. 50/7.
NARROWING THE PARLIAMENTARY FRANCHISE.
[Promulgated i6th August 1892.]
No. 9 of 1892. 2
No. 48. Act. To amend the Law with regard to the Qualifica-
tion of Voters for Members of Parliament, and to make
provision for taking Votes by Ballot at Parliamentary
Elections.
Be it enacted . . .
1. [Repeal of repugnant laws.]
2. [Interpretation of terms.]
3. [Sections 4, 5, 6, 7, 17, etc. not to apply to voters already
registered so long as they continue to reside in places in respect
of which they are registered.]
4. Subject to the provisions in the third section contained,
(a) The words ” twenty-five ” where they first occur
1 Repealed by Act No. 2 of 1902.
2 Cf. Act No. 2 of 1905, which prescribed when soldiers, seamen, and marines
could vote.
74 CAPE OF GOOD HOPE [1893
in the eighth section of the Constitution Ordi-
nance shall be expunged, and the words ” seventy-
five ” inserted in their stead.
(b) The words, ” or who having been in the receipt for
the space aforesaid of salary or wages at and after
the rate of not less than twenty-five pounds by
the year shall, in addition to such salary or wages,
have been supplied with board and lodging,”
where they occur in the said eighth section of
the said Ordinance, shall be expunged.
(c) The words ” twenty -five ” wherever they occur in
the ninth section of the said Ordinance, or in
the seventeenth section of the Act 14 of 1887,
or wherever they are used in any statute to
denote the value of property required to be
occupied in connection with the qualification
of a parliamentary voter, shall be expunged,
and the words ” seventy-five ” inserted in their
stead.
5. [Qualification of voters in Griqualand West to be the
same as in other parts of the Colony.]
6. [Subject to a few exceptions] no person shall, from and
after the taking effect of this Act, be entitled to be registered
as a parliamentary voter for any Electoral Division in this
Colony, unless such person is able to sign his name and to write
his address and occupation.
[Etc.]
85. This Act may be cited as the ” Franchise and Ballot
Act, 1892.”
P.R.O., C.O. 50/8.
MINISTERIAL OFFICES. [Promulgated 12 Sept. 1893.]
No. 14 of 1893.
No. 49. Act. To create the Office of a Minister of Agriculture,
to abolish the Office of Secretary for Native Affairs, and
to amend the designation of and provide for the assign-
ment of duties to certain Ministerial Officers.
Be it enacted by the Governor of the Cape of Good Hope,
by and with the advice and consent of the Legislative Council
and House of Assembly thereof, as follows :
1. From and after the taking effect of this Act there shall
be in this Colony a certain office, to be called the office of
” Secretary of Agriculture.”
2. The person to hold the said office shall be appointed by
Her Majesty the Queen, and shall hold office during Her
1893] CENTRAL GOVERNMENT 75
Majesty’s pleasure, and shall be charged with such duties
as Her Majesty shall from time to time assign to him.
3. The provisions of sections 3, 4, and 8 of the Act No. i of
1872 and of section 8 of the Act No. 18 of 1874 shall apply to
the said office and the Secretary for Agriculture as though
the said office and the said Secretary had been therein specifi-
cally mentioned and referred to.
4. The Secretary for Agriculture shall from the date of
his appointment receive salary at the same rate at which
those officers receive salary who are named in section 2 of the
Act No. 32 of 1879, which was revived under and by virtue of
the provisions of Act No. 28 of 1887, and he may be the Prime
Minister. 1
5. Notwithstanding anything to the contrary contained
in the Act No. i of 1872, the officers therein styled ” The
Treasurer of the Colony,” and ” The Commissioner of Crown
Lands and Public Works ” shall be respectively styled ” The
Treasurer ” and ” The Commissioner of Public Works.”
6. The Office of Secretary for Native Affairs constituted
under the Act No. i of 1872 shall be and is hereby abolished,
and the duties and functions hitherto assigned to and exercised
by the Secretary for Native Affairs shall, from and after the
taking effect of this Act, be discharged and performed by the
Prime Minister of this Colony for the time being, or by any
other Minister to whom the Governor may assign the same.
7. In the interpretation of any law the word ” Minister ”
shall mean that member of the Executive Council to whom
the administration of that law is assigned, unless there be any-
thing in the context inconsistent with or repugnant to such
interpretation : Provided that whenever by any law the exer-
cise of any power or the performance of any duty or function
is conferred or imposed on or assigned to any Minister therein
named, such power, duty, or function may legally be exercised
or performed by any other Minister to whom the Governor may
assign the exercise or performance of the same.
8. The Prime Minister shall, notwithstanding that save as
aforesaid he shall not hold one of the offices referred to in the
third section of the Act No. i of 1872, be deemed to be included
in the empowering provisions of the fourth section of that Act.
9. This Act shall take effect upon the promulgation thereof,
and may be cited as the ” Minister of Agriculture Act, 1893.”
P.R.O., C.O. 50/8.
1 It is believed that this is the first mention of the office of Prime Minister
in any law ot the British Empire.
76 CAPE OF GOOD HOPE [1894-95
ANNEXATION OF PONDOLAND. [25 Sept. 1894.]
No. 5 of 1894.
No. 60. Act. To provide for the Annexation of the Country
known as Pondoland. P.R.O., C.O. 50/8.
ANNEXATION OF BRITISH BECHUANALAND.
No. 41 of 1895. [n Nov. 1895.]
No. 51. Act. To make provision for the Annexation to this
Colony of the Territory of British Bechuanaland.
P.R.O., C.O. 50/8.
SECTION B.
LOCAL GOVERNMENT.
REPAIR OF ROADS. [21 March 1800.]
No. 52. Proclamation. By Sir GEORGE YONGE, Baronet, etc.
WHEREAS it appears evident upon Enquiry that the roads of
this Colony stand in need of considerable repairs, previous to
the ensuing Winter ; and as the Burgher Senate and the Land-
drosts in the different Districts are the persons under whose
immediate orders and directions such repairs are to be under-
taken. In order, therefore, that a work so essentially neces-
sary to the comfort and convenience of all ranks of Society
may be carried on in such a manner as to those entrusted with
the care and management of it may appear most likely to the
completion thereof ; I do by virtue of these presents declare
and make known to all the inhabitants of this Colony, That all
Regulations and directions coming from the Burgher Senate or
the Landdrosts and Heemraden in their Districts are to be
considered in this particular instance as the orders of Govern-
ment, and are consequently to be obeyed as such, and any
person or persons who, regardless of these my Commands, shall
neglect or hesitate to comply with the orders and directions they
may receive from those acting under my authority shall upon
their disobedience being proved pay a Fine of One Hundred
Rix-dollars to be appropriated towards the defraying of the
Expenses attending the before-mentioned Repairs.
[Etc.]
Rec. III. 82.
i8o6-28] LOCAL GOVERNMENT 77
REPAIR OF ROADS. [13 Sept. 1806.]
No. 53. Government Advertisement. Notice is hereby given, that
in consequence of the representations that have been made
to His Excellency the Lieutenant-General Commanding in
Chief, upon the bad state of the Roads in the Country Districts,
he has directed the several Landdrosts to be written to,
authorising them to appoint an Overseer of the Roads in each
District, who will be empowered to call upon the Inhabitants
to furnish a proportion of their Slaves (according to an accurate
list to be furnished by the Landdrost and Heernraden) for the
repair of the Roads.
Persons neglecting to furnish their Slaves when called upon,
will be liable to a penalty of Fifty Rix-dollars for each offence,
which sum is to be levied by Landdrost and Heemraden, and
applied to the Fund for the repairing of the Roads.
Prods., etc., p. 37.
THE COLLECTION OF THE REVENUE. [28 Feb. 1828.]
[Civil Commissioners succeeded to the administrative duties of Land-
drosts and Heemraden. In 1834 the offices of Civil Commissioner
and Resident Magistrate were united. Cf. document No. 73.]
No. 43.
No. 64. Ordinance. Of His Honour the LIEUTENANT-GOVERNOR
in Council, for empowering the Collector of Taxes in Cape
Town, and the Civil Commissioners of the Country Dis-
tricts, to collect the several Taxes and Duties now or
hereafter to be imposed, and payable within the Colony.
WHEREAS certain of the Taxes now payable in this Colony
have been heretofore collected and got in by the Landdrosts,
Landdrosts and Commissioned Heemraden, Deputy Land-
drosts, Deputy Landdrosts and Commissioned Heemraden,
Residents, and Residents and Commissioned Heemraden, of the
several Districts, Subdistricts, and Residencies, respectively ;
and certain others of the said Taxes have heretofore been
collected by and got in by the late Burgher Senate : And where-
as the Offices of Landdrost, Deputy Landdrost, and Resident,
have now ceased and determined, and the said Burgher Senate
has been abolished, whereby the Revenue can no longer be
collected as heretofore, and it is therefore necessary to make
some other Provision in that behalf : Be it therefore enacted,
by His Honour the Lieutenant-Governor in Council, that the
several Taxes and Duties heretofore payable to, and levied by,
the said Burgher Senate, shall, from and after the passing of
this Ordinance, be payable to, and levied by, the Collector of
Taxes in Cape Town ; . . . and the several Taxes and Duties
78 CAPE OF GOOD HOPE [1836
heretofore payable to, and levied by, the Landdrosts, Deputy
Landdrosts, and Residents, of the several Districts, Sub-
districts, and Residencies, and all Taxes hereafter to be im-
posed, shall, from the time aforesaid, be payable to, and levied
by, the said Collector and the Civil Commissioners respectively
within their respective Jurisdictions ; and the said Collector
and Civil Commissioners shall have full Right and Power to
collect all Taxes and Duties, and Arrears thereof, and to sue
for and recover the same by any Action or Suit to be brought
by them in any competent Court.
II. And be it further enacted, That the said Collector of
Taxes, and the said Civil Commissioners, shall take the follow-
ing Oath before the Chief Justice, or any of the Judges of the
Supreme Court, or any Resident Magistrate (who are hereby
empowered and required to administer the same), before they
act in pursuance of the provisions of this Ordinance :
I, A. B., do swear, that I will act truly, faithfully, im-
partially, and honestly, according to the best of
my skill and knowledge, in collecting the several
Taxes which I am empowered to do by an Ordi-
nance marked No. 43, bearing date the 28th day of
February 1828 ; and that I will act in all matters
and things which shall be brought before me in
collecting the said Taxes, without favor or affection.
So help me God !
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
MUNICIPAL BOARDS CREATED. [15 Aug. 1836.]
No. 9, 1836.
No. 56. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the Advice and Consent of the
LEGISLATIVE COUNCIL thereof, for the creation of
Municipal Boards in the Towns and Villages of this
Colony, on which the Local Regulations of each shall be
founded.
WHEREAS it is expedient that due provision should be made
for the better regulation of certain matters and things of a
local nature within the several Districts, Towns and Villages
in this Colony, and that Municipal Boards should be consti-
tuted and established therein for that purpose : Be it there-
fore enacted, . . . that from and after the First day of October
next, it shall and may be lawful for any Resident Magistrate,
or Justice of the Peace, within the limits of his jurisdiction,
and he is hereby required, upon a requisition made to him in
1836] LOCAL GOVERNMENT 79
writing to that effect by any number of resident Householders,
not less than twenty-five, and severally paying taxes to an
amount exceeding six shillings sterling per annum, and resident
respectively within one mile of any one central place which
shall be specified in the said requisition, to call a meeting of
Householders paying such amount of Taxes as aforesaid, and
resident within the limits aforesaid, to determine whether
Municipal Regulations shall be adopted for the Town, Village
or Place intended to be erected into a Municipality.
II. And be it further enacted, That three weeks’ notice at
least of the time and place of holding such meeting shall be
given by the Resident Magistrate or Justice of the Peace,
calling the same, by a printed or written notice affixed to
some conspicuous place or places of public resort within the
limits aforesaid.
III. And be it further enacted, That the chairman who
shall preside at any meeting assembled as hereinbefore directed,
shall read, or cause to be read, the requisition whereupon the
meeting shall have been summoned, and shall require such
resident householders as aforesaid assembled thereat, to deter-
mine, by majority of votes, whether municipal regulations
shall, or shall not, be adopted and acted upon within the said
intended municipality.
IV. And be it further enacted, That if at any such meeting
it shall be determined by a majority of votes, that municipal
regulations shall be adopted, then and in such case any such
Resident Magistrate or Justice of the Peace as aforesaid to
whom such determination shall be notified by the chairman
of such meeting, shall forthwith call another meeting of such
resident householders as aforesaid, to be holden within seven
days thereafter, in order to elect and appoint a committee of
so many of such resident householders as aforesaid, as the said
meeting shall deem expedient, to frame and draw up municipal
regulations.
V. And be it further enacted, That the committee so to be
elected and appointed, shall be chosen by such resident house-
holders assembled at such meeting by majority of votes.
VI. And be it further enacted, That the committee so
chosen as aforesaid, shall forthwith proceed to frame and
draw up such municipal regulations as they may deem ex-
pedient, and shall submit the same, when prepared, to a
meeting of such resident householders as aforesaid, to be called
by the said committee upon seven days’ notice to be given in
manner aforesaid : Provided always, that such committee
shall submit such regulations to such meeting as aforesaid,
within one month from the date of their appointment, other-
wise the said committee shall be ipso facto dissolved, and a new
80 CAPE OF GOOD HOPE [1836
committee shall then and in every such case be chosen in
manner and for the purpose aforesaid, at a meeting to be called
by any such Resident Magistrate or Justice of the Peace as
aforesaid, to whom such dissolution of the committee shall
have been notified.
VII. And be it further enacted, That in such regulations
it shall be the duty of such committee to fix the limits of the
municipality, and to divide the municipality into wards,
if necessary, and to fix the number of commissioners and
wardmasters for the municipality or the several wards thereof,
and to make rules for the classification and valuation of the
immovable property therein, and to frame all other regula-
tions which shall be necessary, to enable the said com-
missioners to carry into effect the provisions of this Ordinance,
or such of them as the said committee shall think expedient
and necessary for the municipality.
VIII. [Magistrate or Justice of the Peace to be chairman
at the meeting of householders.]
IX. And be it further enacted, That at such meeting the
question shall be put by the chairman on each and every
clause contained in the regulations submitted by the com-
mittee, seriatim, and afterwards on the whole of the regula-
tions jointly ; and a majority of votes shall decide whether such
clause, or the whole of the regulations jointly, as the case may
be, shall or shall not be adopted.
X. And be it further enacted, That the regulations adopted
at such meeting shall forthwith be transmitted to the Governor
of the Colony for the time being, for the approval, amendment,
or disallowance thereof, of the said Governor, by and with the
advice of the Executive Council ; and in case such regulations
shall be approved, notice of such approval shall be given by
Proclamation to be made in that behalf ; and the said regula-
tions shall be published in the Government Gazette, and shall
thereupon become as legal, valid, and effectual, as if the same
had been inserted herein. . . .
XI. [Alteration of regulations from time to time.]
XII. And be it further enacted, That so soon as such
original regulations as aforesaid shall have appeared in the
Government Gazette, the resident magistrate of the district
shall, and he is hereby required, by a notice of not less than
ten days in manner hereinbefore provided, to call a meeting
of such resident householders as aforesaid, residing within the
limits of such municipality, to be holden for the election and
choice of so many commissioners as shall have been specified
in the said regulations to carry the same into effect ; and
the said commissioners for the municipality, or the wards
thereof respectively, shall be elected by a majority of votes
1843] LOCAL GOVERNMENT Si
of such resident householders as aforesaid present at such
meeting ; and any such resident magistrate or justice of the
peace shall preside as chairman at such meeting.
XIII. And be it further enacted, That any person residing
within the municipality, and being the proprietor of a house
situate within the same, and who shall pay annually a sum of
not less than one pound sterling in taxes shall be eligible to
be elected a commissioner * for the purposes of this Ordinance,
and shall be proposed at the same meeting by some person
duly qualified to vote thereat, and shall be seconded by some
other person in like manner qualified.
XI V. And be it further enacted, That every person who
shall be elected a commissioner in any municipality in manner
aforesaid, shall go out of office at the end of the third }’ear
from the said first election ; . . . provided always, that any
of such out-going commissioners shall be re-eligible, and may
be re-elected, and shall in such case continue to act and remain
in office, anything herein contained to the contrary notwith-
standing.
XV.-XLVIL [Officers of the Boards and details of muni-
cipal business.]
XLVIII. And be it further enacted, That every person,
who is the occupier of any dwelling-house, either as proprietor
or renter, of the yearly value or rent of not less than ten pounds
sterling, shall be, and be deemed and taken to be, a resident
householder within the meaning of this Ordinance : and that
at the several meetings of such resident householders 2 as
aforesaid, hereinbefore appointed or authorized to be hoi den,
every such householder who shall be personally present, shall
have and be entitled to one vote, and no more.
[Etc.]
P.R.O., C.O. 50/1.
CREATION OF ROAD BOARDS. [22 Nov. 1843.]
No. 8, 1843.
No. 56. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL thereof, for Improving the Public
Roads of the Colony.
… Be it … enacted by the Governor of the Cape of
1 Duties assigned to Commissioners : to call meetings for the purpose of
assessing taxes, appoint watchmen, provide fire-engines, erect lamp-posts,
lay pipes for the conveyance of water, build bridges and streets, establish
markets, enforce regulations relative to weights and measures, etc.
2 The text has ” shareholders,” obviously an error.
6
82 CAPE OF GOOD HOPE [1843
Good Hope, by and with the consent of the Legislative Council
thereof, that, from and after the promulgation of this Ordinance,
it shall and may be lawful for the Governor of this Colony to
nominate and appoint certain fit and proper Persons to form
a Central Board of Commissioners, to be styled ” The Central
Board of Commissioners of Public Roads.”
I. And be it enacted, that the said central board shall
consist of six persons, three of whom shall be persons holding
some office of profit under Her Majesty, and three of whom
shall be persons not holding any office of profit under Her
Majesty. . . .
II. And be it enacted, that the said governor shall by
. . . proclamation . . . nominate and appoint one of the
members of the said board to be the chairman thereof. . . .
III. And be it enacted, that it shall and may be lawful
for the said board, and it shall be the duty of the same so
far as the means from time to time at its disposal will permit,
to improve, and, as much as may be, bring into a fit and
proper state the main roads throughout the Colony. . . .
XXII. And be it enacted, that so soon as the valuation
of the whole of the immoveable property in any division
subject to assessment, shall have been completed … it
shall be lawful for the said board, and it is hereby empowered
… to assess and impose such a rate l as it shall deem neces-
sary and expedient, for effecting the objects of this Ordinance,
upon all such immoveable property in such division, whether
situated within or beyond the limits of any municipality, as
shall be valued at or above the value of fifty pounds sterling. . . .
XXIX. And whereas the branch roads of the Colony stand
much in need of reparation, and it is expedient to provide for
the gradual improvement of the same ; Be it enacted that
the civil commissioner of each division, or officer for the time
being acting as such, shall within one calendar month after
the valuation of the immoveable property in that particular
division shall have been by means of the central board effected,
in manner and form as hereinbefore mentioned, call, upon a
notice of not less than thirty-one days, to be published in the
Government Gazette, a meeting of all the owners of immoveable
property in such division, valued at fifty pounds or upwards,
to be held at some convenient time and place to be named in
such notice, for the purpose of electing four persons to form,
with such civil commissioner, or officer for the time being acting
as such, a board to be styled, ” The Board of Public Roads
for the Division of
1 At the expiration of every period of twelve months a new rate may be
levied. Not more than three, rates are to be levied in any division, and no
rate is to exceed id. in the pound on the value of property.
1855] LOCAL GOVERNMENT 83
XXXIV. And be it enacted, that the four members first
elected in each division . . . shall . . . remain in office for
the next ensuing three years. . . .
P.R.O., C.O. 50/1.
CREATION OF DIVISIONAL COUNCILS. [8 June 1855.]
No. 5, 1855.
No. 57. An Act. For Creating Divisional Councils in this
Colony. 1
WHEREAS it is expedient that Boards should be established
in the several divisions of this colony, for the better administra-
tion of their local affairs : And whereas it is expedient to
make provision, by this Act, for the better administration of
the functions now performed by the Divisional Road Boards,
the District School Commissions, and of the Court for the
better Regulation of Pounds and Prevention of Trespasses,
leaving it to Parliament, hereafter, from time to time, by
other Acts thereof, to bestow or impose such further powers,
functions, and duties upon such Boards as shall be provided
and prescribed : And whereas it is expedient that such Divi-
sional Boards should be called Divisional Councils, and that
all the members of every such Council, with the exception of
the Civil Commissioner, should be elected by the inhabitants :
Be it therefore enacted by the Governor of the Cape of Good
Hope, with the advice and consent of the Legislative Council
and the House of Assembly thereof, as follows :
I. The Ordinances No. 8, 1843, and No. 16, 1847, as far
as they are contrary to, and repugnant to or inconsistent
with, the provisions contained in this Act, are hereby re-
spectively repealed.
II. Every division of this colony shall be divided into six
subdivisions, to be called districts, and every such district
shall elect one person to be a member of the Divisional Council
of such division.
III. [Governor to define limits of districts in each division.]
IV. [Governor may alter limits of districts.]
V. All persons in any such district, registered as voters
under the ordinance for constituting a parliament for this
colony, and no other persons, shall be entitled to vote for
the members of the Divisional Council, to be elected by such
district.
VI. [Polls to be taken by field-cornets in their respective
wards.]
1 Cf. the Divisional Councils Acts No. 4 of 1865 and 40 of 1889, not printed
in this volume.
84 CAPE OF GOOD HOPE [1855
VII. No voter shall vote except in the field-cornetcy in
which such voter stands registered.
VIII. Every person registered as a voter, for any division,
under the ordinance aforesaid for constituting a parliament,
shall (except as hereafter excepted) be eligible to be elected,
by any district into which such division shall be subdivided
as aforesaid, to be the member for such district of the Divisional
Council of such division : Provided that no person holding
any office of profit under Her Majesty the Queen within this
colony, and no uncertificated insolvent, shall be eligible to be
elected.
IX. [When field-cornets are to take a poll.]
X. [Poll to be open from 8 a.m. to 5 p.m.]
XI .-XVI. [Manner of polling, counting of votes, etc.]
XVII. [Civil Commissioner to publish names oi persons
elected.]
XVIII. [And to call the first meeting.]
XIX. [And to preside at all meetings.]
XX. [Three members to form a quorum.]
XXI. [Who to preside if Civil Commissioner is absent.]
XXII. [Members to sit for three years and to be re-eligible.]
XXIII.-XXIV. [Procedure at subsequent elections.]
XXV. [No election to be deemed incomplete so long as
there are elected sufficient members to form a quorum.]
XXVI. [When a member vacates his seat.]
XXVII. [Manner of filling vacancies.]
XXVIII. [Civil Commissioner’s Clerk to act as secretary
of Divisional Council.]
XXIX. [In what terms Divisional Councils shall be referred
to.]
XXX. [Each Divisional Council to frame standing rules
and orders, which must be submitted to the Governor for his
approval.]
XXXI. The powers and functions now vested in the
Divisional Road Boards, by Ordinance 8, 1843, shall, from and
after the passing of this Act, cease and determine, and all such
powers and functions shall be vested in the Divisional Councils
by this Act created : Provided that, in regard to the division
of the Cape, the joint boards of commissioners and ward-
masters of the municipalities of Cape Town and Green Point,
voting together as one constituency, shall be entitled to elect
three persons, who shall, in regard to all matters connected
with the powers and functions in the said Ordinance men-
tioned, be entitled to sit, deliberate and vote with the mem-
bers of the Divisional Council of the Cape Division, precisely
as if ordinary members thereof : Provided that, as soon as
may be after the Civil Commissioner of the Cape Division
1858] LOCAL GOVERNMENT 85
shall have issued the notice in the gth section of this Act
mentioned, he shall, by a notice to be published in the
Government Gazette, appoint a day and hour and fix a place ior
taking the poll of the joint boards aforesaid, upon which day,
and at which place and hour, the said Civil Commissioner shall
attend to take the poll ; and such Civil Commissioner shall
cause the names of the three persons who shall be elected by a
majority of votes to be published in the Government Gazette ;
and provided that such notice as aforesaid shall be published
for not less than fourteen days before the day named for the
taking of the poll : Provided also that every member of such
joint boards shall have three votes, but shall not be entitled
to give more than one vote to one person : And provided
further, that the three persons so elected as aforesaid shall
receive due notice of all meetings of the Divisional Council of
the Cape Division, for the consideration of all matters relative
to the road administration vested, as aforesaid, in such Council,
according to such standing rules and orders in that behalf, as
shall be framed by the Divisional Council and approved of by
the Governor: And provided, lastly, that all liabilities, law-
fully existing, against any divisional road board shall survive
against the Divisional Council of the same division.
XXXII. The powers and functions now vested in the
several District School Commissions shall likewise so cease
and determine, and the Divisional Councils created by this
Act shall henceforth perform and exercise all functions re-
quired to be performed by such School Commissions in their
respective divisions.
XXXIII. The powers vested in the Civil Commissioners
and Justices of the Peace, under and by virtue of section 27,
Ordinance No. 16, of 1847, entitled an Ordinance for the Better
Regulation of Pounds and Prevention of Trespasses, shall cease
and determine, and be vested in and exercised by the said
Divisional Councils, from and after the promulgation of this
Act.
XXXIV. This Act shall commence and take effect from
and after the promulgation thereof.
P.R.O., C.O. 52/18 (C. ofG. Hope Govt. Gazette,
12 June 1855).
MANAGEMENT OF PUBLIC ROADS. [5 June 1858.]
No. 9 of 1858.
No. 58. An Act. To provide for the Management of the Public
Roads of the Colony.
WHEREAS it is expedient to make other and better pro-
vision for the maintenance and improvement of the Public
86 CAPE OF GOOD HOPE [1858
Roads of this Colony : Be it enacted by the Governor of the
Cape of Good Hope, with the advice and consent of the Legis-
lative Council and the House of Assembly thereof, as follows :
I. Except as hereinafter provided, Ordinance No. 8, 1843,
entitled ” An Ordinance for improving the Public Roads of
the Colony,” and Ordinance No. 12, 1844, amending the afore-
said Ordinance, and Ordinance No. 17, 1847, declaring the
meaning and construction of the 2ist section of the aforesaid
Ordinance, and Ordinance No. 7, 1848, amending and con-
tinuing certain provisions of the aforesaid Ordinance, shall be
repealed from and after the last day of December next.
II. From and after the first day of January next, the
several roads of the colony, which may by any Act of the
Legislature of this colony be declared to be a main road, shall
be under the charge of the general Government, as hereinafter
provided, whose duty it shall be to make, maintain, and
improve such main roads, so far as the funds placed at its
disposal by this or any future Act will enable it.
III. [Central Road Board dissolved, and its affairs to be
wound up by certain commissioners appointed by the Governor.]
VII. [Main roads to be under the control of the Governor,
and under the charge of the civil engineer, as chief com-
missioner, and 3 assistant commissioners.]
VIII. No new line of main road shall be commenced, nor
any deviation made from any existing line of main road, nor
any new work undertaken upon any existing main road, the
cost of which work shall be estimated to exceed two hundred
pounds (unless such new work shall be absolutely necessary,
to prevent the interruption of the communication on such road),
except with the previous sanction of Parliament ; and in like
manner, the charge of any line of main road shall not be
abandoned without such previous sanction.
XX. The several Divisional Councils constituted under
Act 5, of 1855, shall, with such funds as are by this or any other
Act placed at their disposal for such purpose, be charged with
the duty of superintending, making, improving, and preserving
all divisional or branch roads within their respective divisions.
XXVI. All persons owning immovable property within
any division, or any municipality within such division . . .
shall be liable to be rated on account of such property for the
maintenance of the public roads. . . .
XXIX. [Municipalities of Cape Town and Green Point
to be within the Cape division for purposes of this Act, and to
elect four members to the divisional council.]
LIV. Every Divisional Council shall cause an exact and
particular account to be kept, and to be made up and balanced
at the end of each year . . . and to furnish a copy of such
1858] LOCAL GOVERNMENT 87
account, together with all necessary vouchers, to the Governor,
in order that the same, after having been audited by the Auditor
of the Colony, may be laid before both Houses of Parliament.
[Etc.] P.R.O., C.O. 50/3.
EDUCATIONAL BOARDS. [5 June 1858.]
No. 14 of 1858.!
No. 59. An Act. For the Creation of Educational Boards in
the Field-Cornetcies, Villages, and Towns of this Colony
on which the Local Regulations of each shall be founded.
WHEREAS it is expedient that due provision should be made
for the establishment and maintenance of public schools in the
several field-cornetcies, villages, and towns in this colony, and
that educational boards should be constituted and established
therein for that purpose : Be it therefore enacted by the
Governor of the Colony of the Cape of Good Hope, by and with
the advice and consent of the Legislative Council and House
of Assembly thereof :
I. From and after the first day of July next it shall and
may be lawful for any field-cornet, resident magistrate, or
justice of the peace, within the limits of his jurisdiction, and he
is hereby required, upon a requisition made to him in writing
to that effect, by any number of resident householders not
less than fifteen in towns and villages, and not less than ten
in rural field-cornetcies, and resident respectively within the
limits of any such field-cornetcy, village, or town or any ward
or wards within the same, which shall be specified in the said
requisition, to call a meeting of householders resident within
the limit aforesaid, to determine whether educational regula-
tions shall be adopted for the field-cornetcy, village, town, or
place intended to be erected into an educational district.
IV. [Meeting to elect a committee to draw up educational
regulations.]
V. [Electors of members of Parliament to vote for members
of committee.]
VI. [Committee to draw up educational regulations.]
IX. [Regulations to be submitted to a subsequent meeting
of householders.]
X. The regulations adopted at such meeting shall forth-
with be transmitted by the chairman of such meeting to the
divisional council for the approval, amendment, or disallowance
1 Repealed by Act No. 13 of 1865, not printed in this volume. Other Educa-
tion Acts to be consulted are No. 24 of 1874, 30 of 1898, and particularly 35 of
1905. The ” University Incorporation Act,” No. 16 of 1873, is also of interest
in this connection.
88 CAPE OF GOOD HOPE [1882
thereof, of the said council. [If amended by the council the
regulations shall again be submitted to a meeting of house-
holders.]
XII. So soon as such original regulations as aforesaid shall
have appeared in the Government Gazette, the resident magistrate,
within the limits of whose jurisdiction the . . . school district
shall be included, … is hereby required, by a notice of
not less than fourteen days, … to call a meeting of such
resident householders . . . residing within the limits of such
school district, to be holden for the election … of so many
commissioners as shall have been specified in the said regula-
tions to carry the same into effect ; and the said commissioners
shall be elected by a majority of votes of such resident house-
holders as aforesaid present at such meeting ; and any such
resident magistrate, field-cornet, or justice of the peace shall
preside at such meeting.
XIII. Any person residing in the school district shall
be eligible to be elected a commissioner for the purposes of
this Act. . . .
XIV. [Commissioners to be elected triennially.]
XXIII. [No commissioner to receive salary, fee, or reward.]
XXXI. The said commissioners shall nominate and appoint
the schoolmaster ; fix the hours and periods when the school
shall be kept open for elementary instruction, the rate of fees,
if any, to be charged ; hear and decide on all complaints
or charges brought before them, regularly and in writing, by any
resident householder, against the said schoolmaster, relating
to his conduct in the school, or his moral character, and shall
be empowered to censure, suspend, or dismiss him, as the facts
proved before them may require.
XXXII. In each and every school established under this
Act provision shall be made for instruction in the following
branches, that is to say, reading, writing, arithmetic, and
the outlines of geography and history.
P.R.O., C.O. 50/3.
MUNICIPALITIES. [30 June 1882.]
No. 45 of 1882.
No. 60. Act. To Consolidate and Amend the Law relating
to Municipalities.
WHEREAS it is expedient to consolidate and amend- the
laws relating to municipalities, and to provide more effectually
for the government of municipalities : Be it therefore enacted
i882] LOCAL GOVERNMENT 89
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council and House of Assembly
thereof, as follows :
PRELIMINARY.
I. This Act shall apply to every municipality hereafter
constituted and to every existing municipality which shall
in the manner of this Act provided be brought under the
operation of this Act.
II. From and after the commencement of this Act the
several Laws mentioned in the First Schedule shall be and
the same are hereby repealed, except as to property vested,
acts and things done or commenced, rights, privileges, and
protection acquired, liabilities incurred, offences committed,
and proceedings taken, and except as in the fourth section
is excepted.
III. In case any municipality incorporated by any Ordi-
nance or Act of the Legislature shall, in pursuance of the pro-
visions of this Act, come under the operation of this Act, it
shall be lawful for the Governor, by proclamation, to repeal
any such Ordinance or Act incorporating such municipality,
but notwithstanding such repeal, the provisions of the several
sub-sections numbered (i) to (6) respectively of the next suc-
ceeding section shall apply.
IV. Notwithstanding the repeal of the laws hereby re-
pealed, the said several laws shall be and continue in force and
applicable to every municipality already established as if this
Act had not been passed until such municipality shall come
under the operation of this Act, and as often as any existing
municipality shall come under the operation of this Act, the
following provisions shall apply :
(1) All creditors of such municipality shall have the
rights and remedies as if this Act had not been
passed.
(2) All municipal regulations then in force in such
municipality shall (unless repugnant to the pro-
visions of this Act) continue in force until altered
or amended under this Act.
(3) The councillors or commissioners, as the case may
be, then in office shall continue in office until
the election and first meeting of councillors
under the provisions of this Act.
(4) All rates due or payable to or recoverable by such
municipality shall be vested in and recoverable
by the municipality, newly constituted under
this Act, and the valuation or assessment roll
in use at such time, shall continue to be used
go CAPE OF GOOD HOPE [1882
until a new one shall be completed under the
provisions of this Act.
(5) All works and undertakings authorised to be exe-
cuted, all rights, liabilities, and engagements
existing, and all actions, suits, and proceedings
pending by or against or in respect of such muni-
cipality, shall be vested in, attached to, and
be enforced, carried on and prosecuted by or
against the municipality newly constituted :
and no such action, suit, or proceeding shall
abate or be discontinued or prejudicially affected
by such constitution.
(6) All property, movable and immovable, and all
moneys of or vested in any such municipality,
shall be vested in and belong to the munici-
pality newly constituted.
THE CONSTITUTION OF MUNICIPALITIES.
V. The inhabitants of every city, town, or village for the
time being subject to the provisions of this Act shall, under
such name or designation as the Governor may by proclama-
tion declare, be a body corporate with perpetual succession
and a common seal, with power to alter and change the same
from time to time, and shall by such name be capable in law
of suing and being sued, of purchasing, holding, and alienating
land, and of doing and performing such other acts and things
as bodies corporate may by law do and perform subject to the
provisions of this Act.
VI. Every municipality subject to the provisions of this
Act shall be governed by a council composed of a mayor or
chairman, and councillors ; and all acts of the council shall be
deemed to be acts of the municipality.
VII. Whenever the number of councillors for any muni-
cipality is determined under the provisions of this Act, such
number shall be not less than six nor more than twenty-four,
and in case such municipality is divided into wards, the
number produced by the return of three councillors for each
ward.
VIII. Subject to the provisions of this Act, the Governor
may from time to time exercise all or any of the powers
following :
(1) Declare any city, town, or village to be a munici-
pality, constituted under the provisions of this
Act.
(2) Assign a name to such municipality.
(3) Describe the boundaries thereof.
1882] LOCAL GOVERNMENT 91
(4) Unite any two or more villages, which form one
continuous area, so as to form one municipality.
(5) Subdivide or re-subdivide any municipality into
any number of wards not exceeding eight.
(6) Alter the boundaries of or abolish the subdivisions
existing in any municipality.
(7) Determine and alter, within the limits of this Act,
the number of councillors assigned to any muni-
cipality.
(8) Alter and adjust the boundaries of adjoining muni-
cipalities and determine any questions arising out
of such alteration and adjustment.
(9) Sever any portion of a municipality from the muni-
cipality of which it forms a part, and constitute
the same a separate municipality, or annex the
same to any other municipality of which the
portion severed formed one continuous area ;
and from time to time make any apportionment
of property, rights and liabilities, and give any
directions as to matters and things, that may
be necessary to do justice between the munici-
palities concerned.
IX. [Powers may be exercised by the Governor after a
request made by petition.]
X. [Such petition to be signed by three-fourths of the com-
missioners of any existing municipality, or by twenty-five or
more registered voters where no municipality exists.]
XII. [Interested persons may present counter-petitions.]
XIV. [Resident magistrate and others to investigate the
matter of such petitions.]
MUNICIPAL COUNCIL.
XV. Every male person of full age liable to be rated in
respect of immovable property within the municipality of
the yearly value of not less than twenty pounds owned or
occupied by him … for a period not less than six months
next before such election, and in regard to which property
no municipal rate made three months or more before the date
of such election shall then be due and in arrear, shall be eligible
to be elected a councillor, and qualified to hold office as such,
but so long only as he shall continue to possess such quali-
fication.
XVI. [Certain men disqualified.]
XVII. No person holding any office or place of profit
under Government, or under or in the gift of the council of
any municipality, or concerned in, or participating in the
profit of, any contract with any municipality, or concerned
92 CAPE OF GOOD HOPE [1882
in or in the profit of any work to be done under the authority
of any such council, shall be capable of being or continuing
a councillor of such municipality. . . .
XXVIII. Every person of full age, not disqualified under
the provisions of this Act, who on the first day of June in any
year is the owner or occupier of any immovable property in
any municipality, and who shall have paid all sums if any
then payable by such person in respect of any rates made
three months or more before such day, shall be entitled to be
enrolled on the voters’ roll for such municipality according
to the following scale :
(1) If the property liable to be “rated be of the annual
value of, or exceeding, ten pounds, and less
than fifty pounds, he shall have one vote.
(2) If such value amount to fifty pounds and be less
than one hundred pounds, he shall have two
votes.
(3) And if such value amount to or exceed one hundred
pounds, he shall have three votes.
[And in case any municipality is subdivided, every voter shall
vote in only one ward.]
XL. A first election of councillors in any municipality
shall be held on such day within three months after the con-
stitution thereof, as the resident magistrate of the district
may appoint.
XLI. [All councillors to be elected at the first election.]
XLII. [There is to be an annual election.]
XLIII. At the annual election [though not at the first
election] one-third [only] of the whole number of councillors
shall be elected, and in case of a subdivided municipality
they shall be elected in equal numbers for every ward.
LXXIV. [The councillors shall elect one of their number
to be chairman of the council.]
LXXVL [He may be styled ” chairman ” or ” mayor ”
according as the council shall regulate.]
LXXVIII. [Chairman to be ex officio a justice of the peace.]
LXXXV. [Meetings of council to be public.]
BYE-LAWS OR REGULATIONS.
CIX. The council of any municipality may from time to
time make, alter, and revoke bye-laws or regulations for all
or any of the following purposes :
1882] LOCAL GOVERNMENT 93
(1) Regulating the proceedings of the council and the
duties of their officers and servants, and pre-
serving order at council meetings.
(2) For preventing and extinguishing fires and com-
pensating the owners of buildings removed to
prevent the spread of fire.
(3) For establishing and regulating public markets and
market dues and regulating public sales.
(4) For suppressing nuisances, houses of ill fame, and
gaming-houses.
(5) For restraining noisome and offensive trades, and
compelling residents to keep their premises free
from offensive or unwholesome matters.
(6) For regulating the supply and distribution of any
water under the control or management of the
council.
(7) For regulating sewerage or drainage.
(8) For regulating lighting with gas, electricity, or
otherwise.
(9) For preserving public decency.
(10) For preventing the spread of contagious or infectious
diseases, and for preserving the public health.
(n) For regulating and licensing boatmen, porters,
public carriers, carters, cabs, and vehicles plying
for hire.
(12) For regulating the killing of cattle and sale of
butchers’ meat, and the establishment and
locality of slaughter-houses.
(13) For regulating the removal of night soil, stable
litter, filth, and refuse from private premises,
and from all streets, roads, and public places.
(14) For preventing the dangerous use of gunpowder,
fireworks, or other combustibles, and for regulat-
ing the storage or removal of petroleum, gun-
powder, dynamite, or other explosive material.
(15) For imposing a tax upon the keeping of dogs.
(16) For preventing the pollution of any water which
the inhabitants have a right to use.
(17) For establishing and maintaining cemeteries.
(18) For planting and preserving trees and shrubs.
(19) For regulating the width, curbing, paving, gutter-
ing, gravelling, and cleansing of roads and
streets.
94 CAPE OF GOOD HOPE [1882
(20) For establishing, maintaining, and controlling any
ferry, pontoon, or bridge, and levying and
collecting tolls and dues thereon.
(21) For granting licenses or permits for the making
of bricks, or for digging or removing clay or
gravel, or for quarrying stone, or for cutting
firewood, brushwood, or grass upon municipal
lands, and to prescribe the fees (if any) to be
paid for the same.
(22) To establish and provide for the management of
pounds and appointment of poundmasters,
subject to the provisions hereinafter in this Act
contained.
(23) To provide for the management and protection of
all common pasture or other municipal lands,
and to fix the number and description of live
stock any inhabitant shall be allowed to keep
and depasture thereon or any part thereof. But
no such provision shall interfere with or derogate
from any existing rights which may be possessed
or enjoyed by any person over such common
pasture or other municipal lands either by virtue
of any valid title deed or of any lawfully con-
stituted servitude.
(24) To grant temporary grazing rights over the said
lands to carriers and others frequenting or
passing through the municipality or attending
the markets thereof, or to travellers, and to
charge such reasonable dues as hereinbefore
mentioned in consideration of the same.
(25) For establishing, maintaining, and regulating public
libraries, museums, botanical gardens, parks,
public baths, and wash-houses, and public
places of recreation.
(26) For regulating traffic and processions.
(27) Generally maintaining the good rule and govern-
ment of the municipality. . . .
MAKING OF RATES.
CXXV. The council of every municipality shall once at
least in every year, and may from time to time as they may
see fit, make and levy rates upon all rateable property within
the municipality. And such rates may be :
1882] LOCAL GOVERNMENT 95
(1) A landlords’ or owners’ rate assessed upon the
value of the rateable property.
(2) A tenants’ rate assessed upon the annual value of
such property.
Or either or both of such rates.
[These rates not to exceed 2d. in the and 8d. in the
respectively.]
POWERS AND DUTIES OF THE COUNCIL.
CLVI. The council shall have power and authority to do
all or any of the following things :
To make, construct, alter, keep clean and in repair the
roads, streets, dams, furrows, sewers, drains,
culverts, and bridges within the limits of the
municipality.
To excavate, construct, and lay down within the limits
of the municipality, water courses, water pipes,
conduits, sluices, dams, reservoirs, aqueducts,
wells, and other works for supplying the inhabi-
tants of the municipality with water, and to keep
the same in repair, or to grant leave to any person
or company of persons, to lay down pipes or to
execute any other like works.
To lease, or purchase any land, and to erect, lease or
purchase, maintain and keep in repair, any
building or buildings for any municipal require-
ment or purpose.
To lease, purchase, or erect and maintain such school
buildings and manage such schools as the council
shall, from time to time, think proper ; and to
enter into such guarantees in respect of such
schools as may be required by the Government,
in case any aid from the Government in support
of such schools should be required under any Act
which may now or hereafter be in force for this
purpose.
CLVI I. The council of any municipality may appoint and
employ such number of street-keepers, policemen, and special
constables as shall be required. . . .
CLXXII1. All penalties or other moneys payable in respect
of any offence against this Act, or any bye-law made there-
under, may be recovered before the Court of the “Resident
Magistrate of the district.
9 6
CAPE OF GOOD HOPE
[1882
FIRST SCHEDULE.
ENACTMENTS REPEALED.
Number and Year.
Title.
Extent of Repeal
“Ordinance No. 9,
1836.
Ordinance No. 2,
1844.
Ordinance No. 8,
1848.
Ordinance No. 5,
1852.
Act No. 15, 1860.
Act No. 13, 1864.
Ordinance for the Creation of
Municipal Boards in the Towns
and Villages of this Colony, on
which the Local Regulations of
each shall be founded.
Ordinance for amending the Or-
dinance No. 9, 1836, entitled
[as above.]
Ordinance for enlarging in certain
respects the powers of Municipal
Commissioners in regard to the
Common Pasture Lands of the
Municipality.
Ordinance to enable Municipal
Commissioners appointed under
Ordinance No. 9, 1836, to pur-
chase or hire immovable pro-
perty for municipal purposes.
For continuing the Ordinance No.
9, 1836, entitled [as above], as
also the Ordinance No. 2, 1844,
entitled [as above.]
To amend the Ordinance No. 9 of
1836, entitled [as above.]
So much as has
not been al-
ready repealed.
The whole.
The whole.
The whole.
The whole.
The whole.
* Yet Act No. 9 of 1885 was again passed to amend Ord. No. 9 of 1836 !
SECOND SCHEDULE. [Form of Nomination.]
P.R.O., C.O. 50/7.
SECTION C.
ADMINISTRATION OF JUSTICE.
THE COURT OF JUSTICE. [i Oct. 1795.]
No. 61. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir GEORGE ELPHINSTONE, and J. H. CRAIG, Esq.
WHEREAS, after having considered of the most proper
means of promoting, as much as possible, agreeable to the
paternal intention of His Britannick Majesty the prosperity
and welfare of the Inhabitants of this Colony,
We have conceived that the maintaining of an uncorrupted
Justice and consequently the establishment of a Court of
Justice by which not only the Laws for the maintenance of
Peace, and Good Order, might be strictly enforced, but also
the mutual differences of the Inhabitants might be judged
and adjusted, according to the Laws, would be best conducive
to the fulfilling of that salutary intention, as the due main-
tenance of Law and Justice is the best surety for the safety
and happiness of a regular Society. And believing that it
will be for the benefit of the Colony in general, and of each
individual in particular, that the administration of Justice
should be given again to, and consequently remain in, the hands
of those who till now have had the charge of that important
office, and who are therefore supposed to be acquainted with the
Laws and Customs of this country ; We have thought it
expedient to re-establish, as we by these presents re-establish,
the Court of Justice of this Country in the same manner as
the said Court has existed on the i6th September last, when
this Colony was surrendered to His Britannick Majesty, in
order to administer Justice, in the name of His said Majesty,
in the same manner as has been customary till now, and accord-
ing to the Laws, Statutes, and Ordinances which have been in
force in this Colony, which we command to be followed in their
full tenor and effect, as far as the same are not by us or in our
name, or in that of any Governor or Commander-in-Chief for
the time being, already altered or in future may be altered for
the general benefit. Wherefore we command and enjoin all
and every of the Inhabitants, to acknowledge, to respect, and to
obey, the said Court of Justice, in the said quality, as becomes
faithful subjects and good Citizens, on penalty in case of acting
contrary of being punished as disturbers of the publick peace
and good order according to the Laws. And the Several
Members of the said Court of Justice before it resumes its
administration will take the Oath of Counsellors of Justice
on Monday next the I2th Inst. in the morning at 10 o’clock in
the Castle. Whereof these presents are to give notice to all
and every one. Rec. I. 187.
7
9 8 CAPE OF GOOD HOPE [1795
LANDDROSTS’ COURTS. [15 Oct. 1795.]
No. 62. Proclamation. By General ALURED CLARKE, Vice-
Admiral Sir G. I. ELPHINSTONE, and Major-General CRAIG,
etc. etc.
WHEREAS the good order and Government upon which
depends the peace, prosperity, and happiness of the people,
require that the Magistrates and Officers of Justice should
continue in their present employments and administer Justice
in the name of His Britannick Majesty in the usual form and
according to the Laws, Customs, and Usages which existed in
the Colony previous to its Surrender, until the same be other-
wise provided for, these are therefore in His Majesty’s name
to authorize, appoint, and require you to continue to exercise
the office of Landdrost of the district of (Graffe Reynet) :
hereby investing you with all rights, powers, and authorities
heretofore to the said office belonging, until His Majesty’s
Pleasure signified to you by us, or by any Future Governor
or Commander-in-Chief of the Colony for the time being, be
known, and the Several Inhabitants of the said district, as well
as all others concerned, are hereby required and enjoined
to pay all due obedience to you in all Manner of things relating
to your said office as Landdrost, and we do further direct
that all other Magistrates and others heretofore enjoying
offices of Police in the said district of (Graffe Reynet) do con-
tinue to exercise their several Employments as usual, till other-
wise ordered, for which this shall be to you and to them a full
and sufficient warrant.
Rec. I. 199.
POLICE ARRANGEMENTS. [20 May 1797.]
No. 63. Proclamation. By His Excellency GEORGE,
EARL OF MACARTNEY, etc.
WHEREAS representations have been made to me that,
upon a report of the Bosjesmen or Wild Hottentots having
plundered the Inhabitants dwelling near the Hex River on the
side of the Bokkeveld in the district of Drakenstein, of a con-
siderable quantity of their Cattle, the Landdrost of Stellen-
bosch had ordered an armed party of the Inhabitants to
assemble, and under the command of a Veld Wachtmeester
to endeavour to recover the Cattle that had been taken away,
but that then and in frequent instances of late the greatest
Indifference and Neglect of these Commands had been shown,
to the Detriment of good Order and the evident inconvenience
and danger of the well-disposed and industrious Inhabitants.
17973 COURTS OF JUSTICE 99
I have therefore judged it expedient and necessary to
authorize the Landdrost and Magistrates of the several Dis-
tricts of this Colony, and do by these presents authorize and
empower the said Landdrosts and Magistrates, each within his
District, to order a party of the Inhabitants to arm, assemble,
and take the field against the Wild Bosjesmen at all times when
such an expedition shall appear requisite and proper. And I
do by these presents enjoin and command the Inhabitants so
called upon to pay due and immediate obedience to the Orders
of the Veld Wachtmeester, or other persons appointed by the
Landdrost or Magistrates to command the said party, and
vigilantly to assist in repelling or attacking the Wild Bosjes-
men, Runaway Slaves, or other Depredators of private property
and Disturbers of the public peace. And altho’ the Interest
of the persons called upon to act in defence of their property
against the savage and common Enemy should of itself suffi-
ciently excite them to pay ready and cheerful obedience to
commands issued for their own safety and welfare, still instances
to the contrary having happened, I have judged it expedient
and proper to give this public notice of the foregoing Authority
and Instructions given to the Landdrosts, and by these presents
to warn and command all and every one of the Inhabitants of
this Colony, when thus legally called upon, to pay immediate
and cheerful Obedience, as they shall answer to the contrary
by Fine or such other punishment as has been usual under the
former Government and the Nature of the Crime shall appear
to require.
Rec. II. 89.
COURTS OF JUSTICE. [24 July 1797.]
No. 64. Proclamation. By His Excellency GEORGE, EARL OF
MACARTNEY, etc.
The Administration of Justice being an object of the
highest concern to the welfare of the People, and consequently
engaging the particular care and attention of His Majesty’s
Government, It appears to me expedient to make certain
arrangements and regulations in the judicial Courts of this
Colony for the ease and benefit of its Inhabitants.
I observe from the records, that by the instruction of the
former Government, dated 3rd December 1783, the Court of
Justice was to consist of thirteen Persons, viz. : the President,
the Fiscal, and eleven ordinary Members, and that at the time
of the Capitulation, on the i6th September 1795, It then con-
sisted of the President, the Fiscal, and nine ordinary Members,
ioo CAPE OF GOOD HOPE [1797
besides two others, Mr. Henry de Wet and Mr. Peter Truter,
who tho’ on account of their affinity with the President and
the member Mr. Henry Andrew Truter, they had no judicial
Seats in the Court, yet attended and were employed on com-
missions of inspection, judicial enquiry, and information.
Nearly according to this form the Court of Justice was
re-established by the late Governor my Predecessor, and
appointed to discharge its usual functions.
In the same manner were continued the other Boards of
Judicature, that is to say, In the Cape Town the Court of
Commissioners authorized to determine questions not exceed-
ing ioo Rixdollars, and at Stellenbosch, Swellendam, and Graaf
Reinet those of the Landdrost and Heemraden, the two former
authorized to determine Suits not exceeding ioo Rixdollars,
and the latter on account of its exposed situation empowered
to determine Suits of 1000 Guilders.
Now considering that the Inhabitants of this Colony have
been long accustomed to the subsisting laws and jurisprudence,
and that no abuse of the same has come to my knowledge,
I think it proper to declare, and it is by these presents declared
and directed that the administration of the civil and criminal
Justice do continue on the ancient Ground, except where
it shall have already been altered and improved since the
surrender of this Colony, or shall hereafter be altered and
improved as occasion may require.
I have also judged it convenient for the public service to
lessen the number on the establishment of the Court of Justice
and to order that it henceforth do not exceed the following
numbers, viz. : The President, the Fiscal, and five ordinary
Members. The said seven Members therefore are to constitute
the full Court, and that the Members Mr. Henry de Wet and
Mr. Peter Truter do attend on commissions, as the ordinary
Members until such times as they shall be directed to take
their seats on the bench according to their seniority when
enabled by such vacancies as will remove the cause of their
present restriction.
And tho’ it be my wish and intention that in order to have
Justice amply administered the Court be complete when it is
to [pronounce Judgment, on which occasion all other business
should give way, it is nevertheless declared that any Judgment
or sentence pronounced by five persons of the Court shall be
lawful. But as on account of Commissions in the Country or
other indispensable absence of some of the Members it may
happen that the Court of Justice cannot well be filled to the
above-mentioned number of five persons, and that the case
for determination may admit of no delay, the Court of Justice
may then and for such occasion adopt or select for their
1797] COURTS OF JUSTICE 101
Assessor or Assessors one or two Members of the Burgher
Senate, as may be requisite to complete the proper number,
such assessor or assessors duly taking the Judge’s Oath.
And Whereas from the increase of Inhabitants and from
other circumstances of this settlement it would be useful and
beneficial to the same to make some alteration with regard to
the other Courts or Boards of Judicature within this Colony,
Be it therefore known, and it is hereby published and directed
that the Board of Commissioners for petty civil matters is
henceforth authorized and empowered to determine Suits
amounting to a sum not exceeding two hundred Rix dollars value,
and the several country Boards of Landdrost and Heemraden,
of Stellenbosch, of Drakenstein, and of Swellendam to deter-
mine Suits of one hundred and fifty Rixdollars value, and the
Board of Graaff Reinet to continue to determine Suits of 1000
Guilders as usual, and the execution of the sentences or Judg-
ments pronounced by all those Boards respectively is to
remain on the same footing as hitherto, and to be enforced
accordingly.
And Whereas it being His Majesty’s pleasure that a Court
of Civil Jurisdiction consisting of the Governor together with
the Lieutenant-Governor should be erected for the hearing
and determining appeals from the Courts of law within this
settlement, It is hereby declared that the said Court for hearing
and determining appeals is now open, and that all persons
are permitted and allowed to bring appeals and prosecute the
same before it, provided nevertheless that in all such appeals
the sum or value appealed for do exceed the sum of two
hundred pounds sterling or 1000 Rixdollars, and that security
be first given by the Appellant to answer such charges as shall
be awarded in case the first sentence be affirmed ; and if either
party shall not rest satisfied with the Judgment on appeal,
they may then further appeal to the King in Council, provided
the sum or value so appealed for to His Majesty do exceed
five hundred pounds sterling, or 2500 Rixdollars, and that such
appeal be made within fourteen Days after the sentence and
good security given by the Appellant that he will effectually
prosecute the same and answer the condemnation, as also
pay all costs and damages as shall be awarded.
In all matters of appeal the Appellant and Respondent
shall, twenty-one Days at least before the hearing, furnish the
Court of Appeals with briefs and statements of their case in
the English language and certified by the Secretary of the
Court appealed from that they are true briefs and contain
nothing different from what appeared in the proceedings before
the said Court.
Rec. II. 126.
102 CAPE OF GOOD HOPE [1807
COURT OF APPEAL IN CIVIL CASES. [29 May 1807.]
No. 65. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc.
WHEREAS His Majesty has been pleased to direct that a
Court of Civil Jurisdiction for hearing and determining Appeals
from the Courts of Law within this Settlement, should be
erected, and that the said Court should consist of the Governor
and Lieut. -Governor, and that in the event of the absence of
the Governor or Lieut. -Governor, the full power of hearing and
determining Appeals is vested in whichever shall be present :
It is hereby declared and made known that the said Court is
now open, and that all Persons are henceforth allowed and
permitted to bring forward and prosecute Appeals before it ;
provided nevertheless, that in all such Appeals the Sum or
Value appealed for do exceed the Sum or Value of 200 Sterling
(or 1000 Rds.) and that Security be first duly given by the
Appellant to answer such Charges as shall be awarded, in case
the first Sentence be affirmed ; and if either party shall not rest
satisfied with the Judgment on Appeal a further Appeal may
be made to the King in Council, provided the Sum or Value so
appealed for unto His Majesty do exceed 500 Sterling (or
2500 Rds.) and that such Appeal be made within fourteen
days after sentence, and good Security be given by the Appel-
lant that he will effectually prosecute the same and answer the
Condemnation, and also pay such Costs and Damages as shall
be awarded. In all matters of Appeal, the Appellant and
Respondent shall, twenty-one days at least before the hearing,
furnish the Courts of Appeals with Briefs and Statements of
their Case in the English Language, and certified by the
Secretary of the Court appealed from, that they are true Briefs
and contain nothing different from what appeared in the Pro-
ceedings before the said Court.
Prods., etc., p. 54.
COURT OF APPEAL IN CRIMINAL CASES.
[10 June 1808.]
No. 66. Proclamation. By His Excellency Du PRE, EARL OF
CALEDON, etc.
WHEREAS His Majesty has been pleased to direct that a
Court of Appeals for hearing and determining all Criminal
Cases whatever, which are appealable from any and every of
the Courts within this Settlement, be forthwith established ;
that the said Appellate Jurisdiction be vested in the Governor
i8n] COURTS OF JUSTICE 103
for the time being and such Assessor or Assessors as he may
from time to time be pleased to appoint ; and that the Sen-
tences pronounced by such Court be final, continuing to the
said Governor the right of Pardon and Respite as it now exists :
It is hereby declared and made known that the said Court is
now open, and that all Persons may henceforth bring and
prosecute Appeals in Criminal Cases in and before the said
Court, subject to such orders as may from time to time be made
by the said Court, and provided that every such appeal be
entered within five days from the date of pronouncing the
Sentence or Sentences thereby complained of : And it is further
declared and made known that the Sentences given and pro-
nounced by the said Court hereby established, will be final,
reserving however, and continuing to the said Governor, the
sole right of Pardon and of Respite as it now exists.
Prods., etc., p. 88.
CIRCUIT COURTS ESTABLISHED. [16 May 1811.]
No. 67. Proclamation. By His Excellency Du PRE,
EARL OF CALEDON, etc.
WHEREAS the cognizance and punishment of all Crimes and
Misdemeanours, and the adjudication of all Civil Suits, in
which considerable Property is at stake, must, according to the
existing regulations of this extensive Colony, take place at the
seat of Government ; and whereas the delay which is thus
occasioned in Criminal Cases weakens the impression that
punishment should produce, whilst in Civil Suits the expense
and inconvenience that attaches to those who reside in the
interior, frequently prevent the aggrieved from having recourse
to the only legal means of redress : Now, as the removal of
such inconveniences and obstructions, and the application of a
Process, by which Justice may be more speedily administered,
must be productive of the most beneficial result, not only as
inspiring the Good with an increased confidence in the super-
intending care of Government, but by intimidating the Wicked,
and thus preventing the frequency of Crimes, I have judged it
proper to order and direct, that a Commission from the Court
of Justice (to which for this purpose two Members shall be
added) shall once within each year, or oftener, repair to the most
distant Country Districts, and take cognizance of all Cases
concerning the Inhabitants of those Districts, the prosecution
of which has hitherto been carried on before the Court of
Justice ; and in order to ensure, as far as possible, the effect of
this measure, I have further judged proper to enact and order
the following Regulations, viz. :
104 CAPE OF GOOD HOPE [1811
1. From time to time, of which due notice shall be given,
a Commission of two or more Members from the Worshipful
the Court of Justice shall proceed through the Districts of
Swellendam, George, Uitenhage, Graaff-Reinet, and Tulbagh
in order successively in each of the same to administer Justice
with the same power and authority as is exercised by the full
Court in Cape Town, subject nevertheless to such alterations
and modifications as may hereafter be declared.
2. The following Cases shall be heard and determined by
this Commission :
(a) All Civil Cases occurring in the said Districts, which
do not belong in the first instance to the cogniz-
ance of the Court of Landdrost and Heemraden.
(b) All appealable Civil Cases belonging to the cog-
nizance of the Court of Landdrost and Heemraden
in the first instance, but which, after sentence
has been pronounced, may be appealed from to
the Commission, provided the appeal be prose-
cuted in the next succeeding Session of the Com-
mission in the District where the cause has been
adjudged.
(c) But if, on application to the Commission, it shall
appear that sufficient time has not elapsed since
the passing of sentence by the Court of Land-
drost and Heemraden, to enable the parties to
bring in their appeal, the Commission shall in
such case have the liberty of directing the same
to stand over for the ensuing Session.
(d) All Criminal Cases whatsover, with this exception
only, that, when after a full investigation, it
appears that the Crime committed is subject to
the punishment of Death, in such case the same
shall be reserved for the Full Court, and there,
at the suit of the competent Prosecutor, be
tried, and final sentence passed.
6. The Governor having fixed upon the time for holding
the Sessions, the same shall be notified by Publication of the
Court of Justice, which Publication shall be forthwith trans-
mitted to the respective Landdrosts, and by the Landdrosts
to the Heemraden, Field-Commandants, and Field-Cornets of
their Districts, to be by them made known to the Inhabitants
at large.
7. Upon such notification being received, the Field-Cornets
shall assemble from each family one Slave or Hottentot, and
explain to such Slave or Hottentot the general purpose for
which the Commission is about to assemble at the Drostdy.
[Etc.] Prods., etc., p. 153.
1816] COURTS OF JUSTICE 105
JUDICIAL PROCEEDINGS IN PUBLIC. [25 Sept. 1813.]
No. 68. Proclamation. By His Excellency Lieutenant-General
Sir JOHN FRANCIS CRADOCK, etc.
WHEREAS the Proceedings before the Worshipful the Court
of Justice, with open doors, have, by the 38th Article of their
Instructions, been confined to the Pleadings alone in the Full
Court ; and whereas it has appeared to me, to be of essential
utility, as well for the dignity of the Administration of Justice,
as towards imprinting on the minds of the Inhabitants of this
Colony the confidence ” that equal Justice is administered to
all in the most certain, most speedy, and least burthensome
manner ” ; that all Judicial Proceedings should be carried
on in open Court, the beneficial effects of which have been more
especially confirmed by the result of the publicity, observed
in the proceedings of the different Commissions of Circuit in
the Country Districts, agreeably to the Proclamation of the
i6th May 1811 : I have therefore judged proper to order and
direct, as I hereby order and direct accordingly, that from the
nth of November next, the day on which the present Vacation
ends, not only all the Pleadings, but also all other Proceedings,
as well before Commissioners as before the Full Court, shall
be carried on with open doors, in the presence and hearing of
every person who may think proper to attend.
[Etc.]
Prods., etc., p. 259.
THE CAPE TOWN COURT OF LANDDROST AND
HEEMRADEN. [5 April 1816.]
No. 69. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc.
WHEREAS by Proclamation of His Excellency the Earl of
M’Cartney, then Governor of this Colony, bearing date the
24th July 1797, amongst other matters belonging and apper-
taining to the Administration of Justice in this Colony, it was
declared, enacted, promulgated, and made known, that the
Board of Commissioners for Petty Civil Matters was thence-
forth authorised and empowered to try and determine all
Suits and Questions of Property, amounting to, or valued at,
a sum not exceeding Two Hundred Rix-dollars.
And whereas great advantage has been found to arise
from that summary mode of deciding such Questions, and
a further extent of their jurisdiction appears highly desirable
and useful, I therefore hereby declare, direct, and publish,
io6 CAPE OF GOOD HOPE [1817
that the authority of the said Board of Commissioners (now
the Board of Landdrost and Heemraden of the Cape District)
shall extend to all Sums and Questions of Property as afore-
said, not exceeding Three Hundred Rix-dollars, as fully as
it now does to Sums not exceeding Two Hundred Rix-dollars,
and to be enforced accordingly and in like manner, of which
the Worshipful the Court of Justice, the said Board of Com-
missioners (now Landdrost and Heemraden of the Cape District),
and all others, are hereby directed to take notice and conform
to.
GOD SAVE THE KING.
Prods., etc., p. 359.
CRIMINAL JURISDICTION GRANTED TO LOCAL
COURTS. [18 July 1817.]
No. 70. Proclamation. By His Excellency General the Right
Hon. Lord CHARLES HENRY SOMERSET, etc.
WHEREAS all Crimes, and even Misdemeanours, subject to
a more severe than domestic punishment, committed in the
remote Country Districts, can only be prosecuted once a year
before the Annual Commission of Circuit, whence essential
obstacles are thrown in the way of the prompt administration
of Justice, both in consequence of the long detention of the
accused, and of the unavoidable delay which occurs before
the respective cases can be tried by the competent Court :
I have therefore judged proper, in order to obviate these
inconveniences, as far as the nature of circumstances in this
Colony admit of, to authorise the several Boards of Landdrost
and Heemraden in the Country Districts (that of the Cape
District only excepted), and they are hereby authorised and
directed accordingly, to take cognizance of the Crimes of
Vagabondising, Cattle-stealing, and other Thefts, not accom-
panied by any circumstances of Murder, Violence by breaking
into Houses or other Inclosures, or other Aggravation ; as also
of all lesser Crimes and Misdemeanours, liable, by the existing
Laws, to a more severe than domestic punishment ; and after
all such cases shall have been duly tried, and the Prosecutor
R.O. shall have made his claim, and the accused his full defence,
to proceed to judgment, and pass Sentence, conformably to
the Laws and Usages here in observance.
[Etc.]
Prods., etc., p. 394.
1827] COURTS OF JUSTICE 107
EXCLUSIVE ADOPTION OF THE ENGLISH LANGUAGE
POSTPONED. [13 Dec. 1826.]
No. 27.
No. 71. Ordinance. Of His Honour the LIEUTENANT-
GOVERNOR IN COUNCIL, for postponing the exclusive
Adoption of the English Language in all the Courts of
Justice in this Colony.
WHEREAS it is expedient to postpone the period at which
the use of the English Language is to be exclusively adopted
in all the Courts of Justice in this Colony, until such Arrange-
ments shall be made as may facilitate the introduction of
this beneficial measure, and render its utility at once certain
and permanent ; and whereas many of these Arrangements
have, from unavoidable causes, been delayed, and are yet
wanting : Be it therefore enacted, That so much of the Pro-
clamation of the 5th day of July 1822, * as directs that the
English Language shall be used in all Judicial Acts and Pro-
ceedings of the several Courts of Justice in this Colony, from
and after the ist day of January 1827, shall be, and is hereby
repealed, and declared void, and of no effect ; and that it
shall and may be lawful to continue to use the Dutch Language
in the Proceedings of those Courts where it is now used ; any-
thing in the said Proclamation of the 5th day of July 1822,
to the contrary notwithstanding.
II. Provided always, and be it hereby enacted, That it
shall and may be lawful for the Governor of this Colony,
for the time being, by Proclamation to be made and pub-
lished at any time after the passing of this Ordinance, to direct
and order that the English Language be used in the Judicial
Acts and Proceedings of all or any of the Courts of Justice in
this Colony, at such subsequent period as to him shall seem fit.
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
CREATION OF JUSTICES OF THE PEACE,
[n Dec. 1827.]
No. 32.
No. 72. Ordinance. Of His Honour the LIEUTENANT-
GOVERNOR IN COUNCIL, for creating Justices of the Peace
in this Colony.
WHEREAS it is expedient for the preservation of the
Public Peace, the security of Individuals, and the due execution
of the Laws, that Magistrates be appointed in the several
Districts of this Colony, with power to apprehend, commit to
1 Vide page 23.
io8 CAPE OF GOOD HOPE [1827
Prison, or hold to Bail, all Vagrants, Rioters, Robbers, or other
notorious Offenders, found within their several Jurisdictions,
in order that such Offenders may be brought to Trial, and with
Power to do all other such Matters and Things as the said
Magistrates may by Law be appointed to do : Be it therefore
enacted, and it is hereby enacted, That from and after the
passing of this Ordinance, it shall and may be lawful for the
Governor or Lieutenant-Governor for the time being, from
time to time, as occasion may require, to appoint Justices of
the Peace, under the Great Seal of the Colony of the Cape of
Good Hope, for Cape Town and the District thereof, and the
several Country Districts respectively, who shall take and
subscribe the Oath of Allegiance, and the Oath of Office, . . .
before the Chief Justice, or any Judge of the Supreme or
Circuit Courts, or before the Civil Commissioner, or any
Magistrate of the District for which such Justice is assigned
to act (who are hereby empowered and required to administer
the same), and the Clerks of the Peace respectively shall enter
in the Records of their respective Districts that the said Oaths
were duly administered and taken.
II. And be it further enacted, That from and after the
passing of this Ordinance, the Persons who shall be appointed
as aforesaid to act as Justices of the Peace, shall have power,
and are hereby required, to preserve the Public Peace, and
for that purpose to call to their aid and assistance all Field-
Cornets, Constables, and Peace Officers, Military Officers,
and others His Majesty’s Subjects, to quell all Riots, Brawls,
or other Disturbances, and to lodge all Rioters, Brawlers,
Vagrants, and Disturbers of the Peace, in any Prison within
their respective Jurisdictions, to be dealt with according to
Law ; and they are hereby authorised and required to inquire
of all Crimes and Offences committed, or alleged to be com-
mitted, within their respective Jurisdictions, and for that
purpose to summon and examine upon Oath all Witnesses,
touching such Crimes and Offences, and to apprehend and
cause to be apprehended, all Criminals and Offenders, and to
deal with them according to Law : And the said Justices of
the Peace are hereby authorised and required, upon informa-
tion or complaint, in writing, upon Oath, made to them, or
any of them, to cause to come before them all those who
have used any Threats towards any Person or Persons, whether
regarding their Bodies or the Firing of their Houses, and to
require of them sufficient Security for the Peace, or their good
behaviour towards His Majesty or His Subjects ; and if they
shall not give such Security, then to cause them to be safely
kept in Prison till they shall find such Security.
[Etc.] P.R.O., C.O. 50/1.
1827] COURTS OF JUSTICE 109
CREATION OF OFFICE OF RESIDENT MAGISTRATES.
[19 Dec. 1827.]
No. 33.
No. 73. Ordinance. Of His Honour the LIEUTENANT-GOVERNOR
IN COUNCIL, for creating Resident Magistrates and Clerks
of the Peace in certain Districts and Places in this Colony.
WHEREAS His Most Gracious Majesty’s Charter, for the
better and more effectual Administration of Justice in this
Colony, bearing date the 24th day of August last, authorizes
and empowers the Governor or Lieutenant-Governor, for the
time being, of this Colony with the advice of the Council of
Government, by any Laws and Ordinances to be from time to
time made for that purpose, to erect, constitute, and establish
Courts of Request, and other Courts having Jurisdiction in
Civil and Criminal Cases within this Colony ; provided, that
the Jurisdiction of such Civil Courts shall not be extended to
any Case wherein the Sum or Matter in dispute shall exceed
the amount or value of Forty Pounds, Sterling Money, or
wherein Title to any Lands or Tenements, or any Fee, Duty,
or Office, may be in question, or whereby Rights in future
may be bound ; and provided also that the Jurisdiction of
such Courts in Criminal Cases shall not be extended to any Case
wherein any Person may be accused of any Crime punishable
by Death, Transportation, or Banishment from the said Colony :
And whereas it is expedient that from and after the first day
of January 1828, the Courts of Landdrost and Heemraden,
and’of Landdrost and Commissioned Heemraden in the Sub-
districts of Clanwilliam and Beaufort, the Courts of the Resi-
dents at Simon’s Town, Port Elizabeth, and Port Frances, and
the Jurisdiction of the Special Heemraden at Tulbagh, Caledon,
and Cradock, should be abolished : And whereas it is necessary
that some other provision be made for the Administration of
Justice, and for the due Registration and Legalization of
Marriage in the said Districts, Subdistricts, Residencies, and
Places, in lieu of the said Courts and Jurisdictions … . Be it
therefore enacted by His Honour the Lieutenant-Governor in
Council, that from and after the said first day of January 1828,
the said several Courts and Jurisdictions shall be abolished,
cease, and determine ; and that it shall and may be lawful for
the Governor or Lieutenant-Governor, for the time being,
from time to time, as occasion may require, to appoint, under
the Great Seal of the Colony, one Magistrate, who shall be
called the Resident Magistrate, for each of the Districts of
Stellenbosch, Worcester, Swellendam, George, Uitenhage,
Albany, Somerset, Graaff-Reinet, and for each of the Sub-
districts of Beaufort and Clanwilliam, for the Residency of
no CAPE OF GOOD HOPE [1827
Simon’s Town, and for the Township of Port Elizabeth, and
to appoint one Clerk of the Peace for such Districts and
Places as in his discretion he may think fit.
II. And be it further enacted, That every Person who shall
be appointed Resident Magistrate, or Clerk of the Peace, as
aforesaid, shall take the Oath of Allegiance and the Oath of
Office. . . .
III. And be it further enacted, That the said Resident
Magistrates shall have jurisdiction in all Civil Cases within
the Districts and Places for which they are appointed re-
spectively, wherein the Sum or Matter in dispute shall not
exceed the amount or value of Ten Pounds Sterling, and
wherein the Title to any Lands or Tenements, or any Fee,
Duty, or Office, is not in question, and whereby Rights in
future cannot be bound.
IV. Provided always, and be it further enacted, That it
shall and may be lawful for any Party who shall think himself
aggrieved by the Judgment or Decree of any such Resident
Magistrate, to enter into sufficient security to prosecute an
Appeal therefrom before the next ensuing Circuit Court which
shall be held in the District wherein such Judgment or Decree
was given ; or if such Judgment or Decree be given in Simon’s
Town, then before the Supreme Court within twenty-one days :
Provided always, and it is further enacted, that no Appeal shall
be admitted wherein the Sum or Matter in dispute shall be
less than Forty Shillings Sterling.
V. And be it further enacted, That the said Resident
Magistrates shall have Jurisdiction, without Appeal, in all
cases of Crimes and Offences wherein any Person may be
accused of any Crime not punishable by Death, Transportation,
or Banishment from this Colony : Provided always, that it shall
not be lawful for any such Resident Magistrate to punish any
Offender in any higher or more severe manner than by Fine,
not exceeding the amount of Five Pounds Sterling, and Im-
prisonment, with or without hard labour, for a period not
exceeding One Month, or by Whipping privately in Prison ;
except as to such Crimes or Offences for the commission of
which any higher or more severe punishment, whether by Fine
or Imprisonment, is or shall be provided, and in which Juris-
diction is or shall be expressly given to the said Resident
Magistrates by any special Law or Ordinance.
VI. And be it further enacted, That every Resident Magis-
trate shall hold a Court, and inquire of all Causes or Actions,
whether Civil or Criminal, which shall be brought before him,
and of which Jurisdiction is hereby given to him, in the Court
Room of his District or Place, on two days of the week at least,
and oftener, as occasion may require.
1827] COURTS OF JUSTICE in
VII. And be it further enacted, That all Sentences, Decrees,
Judgments, Writs, Summonses, Notices, Rules, Orders, War-
rants, Commands, and other Proceedings of the said Resident
Magistrate’s Court, shall be made in the English Language;
and in all Criminal Cases, the Witnesses against and for any
accused Person or Persons, shall deliver their Evidence viva
voce and in open Court.
VIII. And be it further enacted, That the Clerks of the
Peace shall conduct all Public Prosecutions in all cases of
Crimes and Offences cognizable and tried by the Courts of
the said Resident Magistrates in their respective Districts ;
and it shall be lawful for the Attorney-General to appoint a
competent Peace Officer for the Residency of Simon’s Town,
and a like Officer for the Township of Port Elizabeth, who
shall act as Public Prosecutor, before the Resident Magistrates
for the said places respectively.
IX. And be it further enacted, That the said Clerks of
the Peace, for their several Districts respectively, shall also
conduct all Public Prosecutions, for Crimes and Offences which
may be tried at any Circuit Court, to be holden for their Dis-
tricts respectively, unless in such case or cases where the
Attorney-General shall think fit to appoint some other Person.
X. And whereas the abolition of the Courts of Landdrost
and Heemraden in the several Districts aforesaid, and of the
Jurisdiction of the Special Heemraden at Tulbagh, Caledon,
and Cradock, renders it necessary that some provision should
be made for the due Registration and Legalization of Marriages :
Be it therefore enacted, that from and after the said first day
of January 1828, the Resident Magistrate and the Clerk of the
Peace, for the several Districts and Places for which they are
assigned to act respectively, shall form the Matrimonial Court,
or Board, in such Districts and Places, and any Justice of the
Peace for the Districts of Worcester, Swellendam, and Somerset,
together with the Field-Cornet of the Place, shall form the
Matrimonial Court, or Board, at Tulbagh, Caledon, and Cradock,
respectively ; and all Registrations for Marriage shall be
made in the said Courts, and all Certificates of Registration
shall be granted by the said Clerks of the Peace, and Justice’s
Clerks, respectively, in like manner as such Registrations were
made, and such Certificates were granted, in the Courts hereby
to be abolished.
XL And be it further enacted, That every Matter and
Thing which was necessary to be done and performed for
the due Registration and Legalization of Marriage in the
Courts hereby to be abolished, shall be required to be done
and performed, and shall be of like force and effect in the
Courts hereby to be created,
H2 CAPE OF GOOD HOPE [1828
XII. And whereas by virtue of certain Proclamations and
Ordinances enacted in times past, certain Crimes and Offences
therein set forth, had been made cognizable by the said Courts
of Landdrost and Heemraden, and of Landdrost and Com-
missioned Heemraden, and by the Courts of Deputy Landdrost
and Heemraden, and Deputy Landdrost and Commissioned
Heemraden, and by the Courts of Residents at Simon’s Town,
Port Elizabeth, and Port Frances : Be it therefore enacted,
that from and after the first day of January 1828, all such
Crimes and Offences as are now by any special Law or Ordi-
nance cognizable respectively, by any of the Courts hereby
to be abolished, shall become cognizable by the Courts hereby
to be created : Provided always, that such Crimes and
Offences shall not be punishable by Death, Transportation,
or Banishment from the Colony.
SCHEDULE.
FORM OF THE OATH OF ALLEGIANCE.
/, A. B., do sincerely promise and swear, that I will be faith-
ful, and bear true Allegiance to His Majesty King George. So
help me God !
FORM OF THE OATH OF OFFICE.
I, A. B., do promise and swear, that I will faithfully and
diligently execute, to the utmost of my Abilities, the several
Duties of the Office of Resident Magistrate which has been con-
ferred upon me. So help me God !
GOD SAVE THE KING.
P.R.O., C.O. 50/1.
THE SHERIFF OF THE CAPE COLONY.
[5 Jan. 1828.]
No. 37.!
No. 74. Ordinance. Of His Honour the LIEUTENANT-GOVER-
NOR IN COUNCIL, for declaring and regulating the Duty
of the Sheriff of this Colony.
[Extract.]
And whereas it is by the . . . Charter [of Justice, dated
24th August 1827] ordered, directed, and appointed, that the
. . . Sheriff shall, by himself, or his sufficient Deputies to be
by him appointed and duly authorised under his Hand and
Seal, and for whom he shall be responsible during his con-
tinuance in such Office, execute all Sentences, Decrees, Judg-
ments, Writs, Summonses, Rules, Orders, Warrants, Commands,
1 Cf. Act No. 17 of 1886, below.
1828] COURTS OF JUSTICE 113
and Processes, of the Supreme Court, or of the Circuit Courts
of the said Colony, as therein is mentioned, and shall make a
Return of the same, together with the manner of the execution
thereof, to the Supreme Court of the Cape of Good Hope, or
to the . . . Circuit Courts, as the case may be ; and shall
receive and detain in Prison all such Persons as shall be com-
mitted to the custody of such Sheriff, by the said Supreme
Court and Circuit Courts, or by the Chief Justice, or any other
Judge of the said Courts : … Be it therefore enacted and
declared, by His Honour the Lieutenant-Governor in Council,
that the said Sheriff shall, immediately after his Appointment,
and after having taken the Oaths [prescribed], appoint and
depute sufficient Persons and Deputies, to act for him in the
execution of the Duties of his said Office, and shall, immedi-
ately after such Appointment, cause to be enrolled in the
Office of the Registrar of the Supreme Court, the Names and
Places of Abode of such his lawful Deputies, and which enrol-
ment shall specify the District within which they are re-
spectively to act for the said Sheriff ; . . .
P.R.O., C.O. 50/1.
QUALIFICATION OF JURORS. [4 Feb. 1828.]
No. 41.
No. 75. Ordinance. Of His Honour the LIEUTENANT-GOVER-
NOR IN COUNCIL, for determining the Qualification of
Persons liable to serve on Grand and Petit Juries, and
the mode of making out and returning Lists of the same.
… Be It Enacted, . . . That from and after the passing
of this Ordinance, every Man, except as hereinafter excepted, 1
between the Ages of Twenty-one Years and Sixty Years,
residing within the Colony and its Dependencies, who shall
have the possession of any Land situated within this Colony,
held on Perpetual Quitrent, or on Loan, and for which he is
liable to pay an annual Rent of not less than One Pound
Seventeen Shillings and Sixpence, Sterling ; or of Freehold
Land of the same annual value ; or who shall be liable to pay
in Cape Town and the District thereof, a sum of not less than
Twenty Shillings Sterling, and in any and every other part of
the Colony, a sum not less than Fifteen Shillings Sterling, for
or on account of Taxes already imposed, or hereafter to be
imposed by any Law or Ordinance, shall be qualified, and
shall be liable, to serve on Juries, in all Criminal Cases, in the
1 Judges, clergymen, attorneys, officers of any of the courts of law,
physicians, surgeons, apothecaries, and generally men holding offices under the
Government are excepted.
8
fi 4 CAPE OF GOOD HOPE [1832
Supreme and Circuit Courts ; such Cases being triable in the
District respectively in which every Man so qualified shall
reside.
P.R.O., C.O. 50/1.
No. 76. THE ROYAL CHARTER OF JUSTICE. 1
[4 May 1832.]
FOR THE BETTER AND MORE EFFECTUAL ADMINISTRATION OF
JUSTICE WITHIN THE COLONY OF THE CAPE OF GOOD
HOPE.
WILLIAM THE FOURTH, by the Grace of God, of the United
Kingdom of Great Britain and Ireland, King, Defender of
the Faith,
To All to Whom these Presents shall come,
GREETING :
WHEREAS it is expedient to make provision for the better
and more effectual Administration of Justice in Our Colony
of the Cape of Good Hope, and in the several Territories and
Settlements dependent thereupon, and for that purpose to
constitute within Our said Colony and its Dependencies
One Supreme Court of Justice, to be holden in the manner
and form hereinafter mentioned: Now KNOW YE, that
WE, of Our Special Grace, certain Knowledge, and mere
Motion, HAVE thought fit to grant, direct, order, and appoint,
and by these Presents Do accordingly for Us, Our Heirs and
Successors, grant, direct, order, and appoint, that there shall
be within Our said Colony of the Cape of Good Hope, a Court
which shall be called ” THE SUPREME COURT OF THE COLONY
OF THE CAPE OF GOOD HOPE.”
II. AND WE Do hereby create, erect, and constitute the
said Supreme Court to be a COURT OF RECORD.
III. AND WE Do further will, ordain, and appoint, that
the said Supreme Court of the Colony of the Cape of Good
Hope, shall consist of and be holden by and before one Chief
Justice and two Puisne Judges, and that the said Chief Justice
shall be called and known by the name and style of the Chief
Justice of the Colony of the Cape of Good Hope, and which
said Chief Justice and Puisne Judges shall be respectively
Barristers in England or Ireland, or Advocates admitted to
practice in Our Courts of Session in Scotland, or in the said
Supreme Court. And which said Chief Justice and Puisne
1 Issued at the Cape by Governor D’Urban’s Proclamation, dated 13 Feb.
1834. It should be compared with the 1827 Charter of Justice which it
superseded. There are but few important differences between the two
instruments.
1832] COURTS OF JUSTICE 115
Judges shall, from time to time, be nominated and appointed
to such their Offices by Us, Our Heirs and Successors, by Letters
Patent under the Public Seal of the said Colony, to be issued
in pursuance of any Warrants or Warrant to be from time to
time for that purpose granted by Us, Our Heirs, and Successors,
under Our or Their Sign Manual.
IV. [If a judge’s seat becomes vacant the Governor shall
make a temporary appointment.]
V. [Judges to hold office during good behaviour. On
proof of misconduct, Governor and Council may suspend any
one of the judges, but must report to the Secretary of State.]
VI. [The Crown reserves power to confirm or disallow
such suspension. Crown also reserves power, upon sufficient
proof of misconduct, to suspend any judge.]
VII. [Chief Justice to have precedence next after the
Governor, Lieutenant-Governor, and Commander-in-Chief.]
VIII. [Puisne Judges to rank next after the Chief Justice.]
IX. [Puisne Judges to take rank between themselves
according to priority of appointment.]
X. [Supreme Court to have and use a Seal.]
XI. [Seal to be kept by the Chief Justice.]
XII. [Each of the judges to receive a salary, beyond which
no fees or emoluments may be accepted.]
XIII. 1 [No judge to accept any other office or place of
profit in the Colony.]
XIV. [To the Supreme Court shall be attached the
office of Registrar or Prothonotary and Keeper of Records,
and the office of Master of the Supreme Court. Minor offices
to be created by Chief Justice.]
XV. [The Registrar and the Master to be appointed by
the Crown ; minor officers to be appointed by the Governor.]
XVI. [All officers, except the judges, to hold office during
the royal pleasure.]
XVII. -XVI II. [Admission of Barristers or Advocates.]
XIX.-XXIV. [Admission of Attorneys or Solicitors.]
XXV. [Governor shall annually in January appoint a
Sheriff, who shall take the oath of office and the oath of
allegiance.]
XXVI. [Sheriff to hold office for one year.]
XXVII. [Sheriff and his deputies appointed by him shall
execute all sentences, warrants, decrees, etc., of the Supreme
Court and of Circuit Courts ; and shall detain in prison persons
committed by the said Courts or by any of the judges.]
XXVIII. [Sheriff may be reappointed by the Governor.]
XXIX. [If the Sheriff or his near relative is involved in a
case, then the court shall appoint a substitute.]
1 Amended by Act No. 35 of 1904.
n6 CAPE OF GOOD HOPE [1832
XXX. AND WE Do hereby further ordain, direct, and
appoint, that the said Supreme Court . . . shall have Cogniz-
ance of all Pleas, and Jurisdiction in all Causes, whether Civil,
Criminal, or Mixed, arising within the said Colony, with Juris-
diction over Our Subjects, and all other Persons whomsoever
residing and being within the said Colony, in as full and ample
a manner and to all intents and purposes, as the Supreme
Court of Justice now existing within the said Colony now hath
or can lawfully exercise the same.
XXXI. [Supreme Court to judge according to laws now in
force or hereafter to be made.]
XXXII. AND WE Do FURTHER GIVE AND GRANT to the
said Supreme Court, full Power, Jurisdiction, and Authority,
to review the Proceedings of all Inferior Courts of Justice
within Our said Colony, and, if necessary, to set aside or correct
the same ; and in the exercise of such Jurisdiction, Powers, and
Authorities as aforesaid, Our Will and Pleasure is, that the
Pleadings and Proceedings of the said Supreme Court and the
Circuit Courts shall be carried on, and the Sentences, Decrees,
Judgments, and Orders thereof pronounced and declared, in
open Court, and not otherwise, and that the several Pleadings
and Proceedings of the said Court shall be in the English
Language ; and that in all Criminal Cases, the Witnesses
against and for any accused Person or Persons shall deliver
their Evidence viva voce, and in open Court.
XXXIII. [In civil cases, two judges to form a quorum.
If such two judges differ in a case, it shall be postponed till a
third judge shall be present, when the decision shall be accord-
ing to the opinion of the majority.]
XXXIV. [Criminal cases to be tried before one or more
of the judges and a jury of nine men, who shall concur in every
verdict. No person otherwise competent to serve on a jury
shall be disqualified by reason of his ignorance of the English
Language.]
XXXV. [Duties heretofore performed by the Orphan
Chamber, to be performed by the Master of the Supreme
Court. Orphan Chamber abolished.]
XXXVI. [Supreme Court to be held at Cape Town.]
XXXVII. [Governor to divide the Colony into convenient
districts for holding Circuit Courts.]
XXXVIII. [Circuit Courts to be held in each district by
one judge at least twice a year.]
XXXIX. [Circuit Courts to have the same jurisdiction and
authority as the Supreme Court. Criminal cases to be tried by
circuit judge and a jury of nine. No person to be disqualified
from serving on a jury merely by reason of his ignorance of
the English Language.]
1832] COURTS OF JUSTICE 117
XL. [If nine men do not appear to try criminal cases the
jury may consist of any number not less than six.]
XLI. [Civil suits to be tried by a judge unassisted by a
jury. In such suits, if the sum or matter in dispute shall
equal or exceed 100, all evidence shall be taken down in
writing. If an appeal is allowed, copies of documents shall be
made and duly certified.]
XLII. [In civil suits involving less than 100, appeals
may be allowed at the discretion of the circuit judge.]
XLII I. [In cases involving more than 100, appeals may
be made to the Supreme Court.]
XLIV. [Any Court before which a case may be pending
may transfer that case to another Court.]
XLV. [In criminal cases no sentence whereby a person
shall be condemned to death or transportation or banish-
ment from the Colony shall be carried out until the ex-
ecution of the sentence shall have been approved by the
Governor.]
XLVI. [Rules of Court to be framed by the Supreme Court
and to be, as far as the circumstances of the Colony will permit,
in accordance with the rules and forms in use in the Courts at
Westminster.]
XLVII. [Rules and laws governing the qualification and
attendance of jurors, to be framed by the Governor with the
advice of the Legislative Council, subject to the approval or
disallowance of the Crown.]
XLVIII. AND WHEREAS it may be expedient to establish
within our said Colony Courts of Request, and other Courts
having Jurisdiction in Civil Cases of small amount or value,
and in cases of Crimes or Offences not punishable by Death
or Transportation : Now WE Do hereby authorize and em-
power the Governor, for the time being, of Our said Colony,
with the advice of the Legislative Council of Government
thereof, by any Laws and Ordinances to be from time to time
made for that purpose, to erect, constitute, and establish all
such Courts of Request, and other Courts having Jurisdiction in
Civil and Criminal Cases, within Our said Colony : Provided
that the Jurisdiction of such Civil Courts shall not be extended
to any Case, wherein the Sum or Matter in dispute shall exceed
the amount or value of Forty Pounds Sterling Money : or
wherein the Title to any Lands or Tenements, or any Fee,
Duty, or Office may be in question ; or whereby Rights in
future may be bound : And provided also, that the Jurisdic-
tion of such Courts, in Criminal Cases, shall not be extended
to any Case wherein any Person may be accused of an}’ Crime
punishable by Death, Transportation, or Banishment from the
said Colony.
n8 CAPE OF GOOD HOPE [1832
XLIX. [Supreme Court to frame rules and order for Courts
of Request.]
L. [Appeals to the Crown in Council may be made from
final sentences, etc. of the Supreme Court, if a case involves an
amount exceeding 500 and if Supreme Court allows such
appeals.]
LI. [Crown in Council reserves the right to allow and hear
appeals upon petition made.]
LII. [Supreme Court shall execute all judgments in appeal
pronounced by the Crown in Council.]
LIII. [All Governors, commanders, magistrates, etc. are
charged to assist in the execution of all powers hereby granted.]
LIV. [Crown in Council reserves the power to repeal or
amend this Charter of Justice.
Letters Patent of 24 August 1827 revoked.]
LV. AND WE do further ordain and direct, that the Gover-
nor of Our said Colony of the Cape of Good Hope, upon the
arrival therein of these Presents, shall, by Proclamation,
notify to the Inhabitants of the said Colony, the time when
the Courts hereby established will be open ; and as soon as the
Judges of the said Supreme Court shall have assumed and
entered upon the exercise of their Jurisdiction therein, then,
and from thenceforth, the Supreme Court of the Colony of the
Cape of Good Hope and the Circuit Courts now established
within the same, and the Jurisdiction of the said Courts re-
spectively, shall be absolutely abolished, cease, and determine ;
and every Suit, Action, Complaint, Matter, or Thing, Civil or
Criminal, which shall be depending in such last-mentioned
Courts respectively, shall and may be proceeded upon in the
Supreme Court instituted under and by virtue of these Presents,
or in either of the said Circuit Courts, which shall and may
have Jurisdiction within the District or Place in the Colony
of the Cape of Good Hope, where such Action or Suit, or other
Matter, Civil or Criminal respectively, shall be conducted
in like manner, as if such Action or Suit, or other Matter,
Civil or Criminal, had been originally commenced in one or
other of the said Courts instituted under these Presents. And
all the Records, Muniments, and Proceedings whatsoever of
and belonging to the said Supreme Court and Circuit Courts
established by the said recited Letters Patent, shall from and
immediately after the opening of the said Courts respectively
instituted by these Presents, be delivered over and deposited
for safe custody in such of the said Courts respectively insti-
tuted under these Presents, as shall be found most convenient ;
and all Parties concerned shall and may have recourse to the
said Records and Proceedings, as to any other Records or Pro-
ceedings of the said Courts respectively.
1843] COURTS OF JUSTICE 119
LVI. AND WE Do hereby further declare and direct, that
during the absence from Our said Colony of the Cape of Good
Hope of the Governor thereof, or if there shall be no person
commissioned by Us, Our Heirs and Successors, to be the
Governor of Our said Colony, then, and in every such case,
all and every the Powers hereby granted to and vested in the
Governor for the time being of the said Colony, shall and may
be executed by and vested in the Lieutenant-Governor thereof,
or the Officer for the time being administering the Government
thereof.
In Witness whereof, We have caused these Our Letters to
be made Patent. Witness Ourself at Westminster, the Fourth
Day of May, in the Second Year of Our Reign.
By Writ of Privy Seal.
BATHURST.
P.R.O., C.O. 52/6 (C. ofG. Hope Govt. Gazette,
14 Feb. 1834).
ADMINISTRATION OF INSOLVENT ESTATES.
[24 Oct. 1843.]
No. 6, 1843.
No. 77. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof, for Regulating the due Collection,
Administration, and Distribution of Insolvent Estates
within this Colony.
W T HEREAS the Law as contained in the Ordinance No. 64,
bearing date the 6th of August 1829, an ^ intituled ” An
Ordinance for regulating the due collection, administration,
and distribution of Insolvent Estates within this Colony,”
requires certain additions and alterations : And whereas it is
expedient, in order that the said additions and alterations may
most conveniently be made, that the said Ordinance No. 64
should be repealed, and a new Ordinance enacted in its stead :
And whereas it is also expedient, that all Insolvent Estates
within this Colony should be, hereafter, administered under one
uniform system of law, and, to that end, that the benefit or
relief of cession of goods and property, commonly called the
cessio bonorum, now available to insolvent debtors in this
Colony, should be abolished : Be it therefore enacted by the
Governor of the Cape of Good Hope, by and with the advice and
consent of the Legislative Council thereof, that from and after
the passing of this Ordinance, the Ordinance aforesaid No. 64,
and the Publication of the 4th September 1805, respecting
transfers, cessions, pledges, and other securities entered into
120 CAPE OF GOOD HOPE [1848
by debtors within twenty-eight days previous to their in-
solvency, and so much of Ordinance No. 5, 1842, intituled,
” an Ordinance to provide for the lodgment elsewhere than in
the Government Discount Bank of this Colony, of certain
Monies, now by law required to be lodged in the said Bank,”
as is, in substance, hereinafter set forth and re-enacted, and
all laws and customs heretofore in force within this Colony,
in so far as the same are repugnant to, or inconsistent with,
any of the provisions of this Ordinance, shall be, and the same
are hereby, respectively repealed. . . .
II. And be it enacted, that it shall and may be lawful for
the supreme court, or any circuit court, or for the chief justice
of this colony, or any other of the judges of the supreme court,
upon the petition, in writing, of any person, setting forth that
he is insolvent, and desirous of surrendering his estate for the
benefit of his creditors, to direct such person to appear before
him, to be examined touching his said insolvency, or to require
such other proof thereof, by affidavits of the said insolvent
and others, as to the said court or the said judge may seem
fit; …
V. And be it enacted, that it shall and may be lawful
for the supreme or any circuit court, or for the chief justice of
this colony, or any other of the judges of the supreme court,
upon petition made in writing against any person having
committed any act of insolvency, … to place the estate of
every such person or persons under sequestration, in the
hands of the master of the said court, until the same shall . . .
be adjudged to be sequestrated, or the said petition shall be
discharged.
[Etc.]
P.R.O., C.O. 50/1.
DUTIES OF FIELD-CORNETS. [4 July 1848.]
No. 9, 1848.
No. 78. Ordinance. Enacted by the GOVERNOR OF THE
COLONY OF THE CAPE OF GOOD HOPE, with the advice
and consent of the LEGISLATIVE COUNCIL thereof, for
regulating the Duties and Remuneration of Field-Cornets.
WHEREAS, owing to the various alterations made from
time to time, in the administration of the country districts of
this colony, the functions of field-cornets have been consider-
ably narrowed ; and it is now expedient to define or describe
their duties, and to substitute for the principle of a fixed
annual allowance, a remuneration proportioned to the services
performed ; Be it enacted by the Governor of the Cape of
1848] COURTS OF JUSTICE 121
Good Hope, with the advice and consent of the Legislative
Council thereof, that the ” Instructions of the Field-Cornets in
the several Country Districts,” published by the then Governor
and Council of this Colony on the 24th October 1805, shall be
repealed, except in so far as the same repeal any former
placards, ordinances, or customs, and the same are hereby
repealed accordingly. Provided always, that the field-cornets
and assistant field-cornets shall continue to be appointed as at
present.
2. And be it enacted, that from and after the commence-
ment and taking effect of this Ordinance, the several duties
belonging to the office of field-cornet shall be the following, that
is to say,
(a) He is, by virtue of his office, bound to apprehend
without warrant, every person whom he shall
have reasonable grounds to suspect of having
committed any murder, culpable homicide, rape,
robbery, or assault with intent to commit any of
those crimes, or assault in which a dangerous
wound is given, arson, housebreaking with
intent to commit a crime therein ; or theft
of any cattle, sheep, or goat ; or any other crimes
of equal guilt with any of those crimes. And
he may also take into custody every person whom
he shall see engaged in any affray, or whom he
shall find attempting to commit a crime, or
already manifesting an intention so to do.
(b) Whenever it shall be brought to his knowledge
that any person, within his ward, has died other
than a natural death, namely by violence or
accident, or his own act, or the act of God, the
field-cornet shall, with all speed, repair to inspect
the body, and hold an inquest thereon.
(c) The field-cornet will obtain and transmit to the
resident magistrate the fullest information re-
specting the circumstances of any such untimely
death, and communicate, at the same time, the
result of his own observations.
(d) In cases of assault in which any wound, supposed to
be dangerous, has been given, the field-cornet
will repair to and examine the injured party,
and apprise the resident magistrate of the case
and its circumstances. . . .
3. [Remuneration of Field-Cornets according to|the|time
spent in performing their duties.]
4. And be it enacted, that from henceforth, the field-
cornets shall be deemed and taken to be under the authority
122 CAPE OF GOOD HOPE [1854
of the resident magistrate of the district, as well as of the
civil commissioner of the division.
5. [This Ordinance not to affect former laws imposing
duties on Field-Cornets.]
6. [Ordinance to take effect from I Jan. 1849.]
P.R.O., C.O. 50/2.
TRIAL BY JURY IN CIVIL CASES, 1854.
I reserve this Bill for the signification of Her Majesty’s
pleasure.
(Signed) C. H. DARLING, Lt.-Governor.
26th Sept. 1854.
No. 7, 1854.1
No. 79. A BUI for Extending Trial by Jury to Civil Cases.
WHEREAS it is expedient that Trial by Jury in Civil Cases
should be introduced into this Colony : And whereas it is
fitting that Trial by Jury in Civil Cases should, in the first
instance, be limited to Civil Cases depending in the Supreme
Court : Be it enacted by the Governor of the Cape of Good
Hope, with the Advice and Consent of the Legislative Council
and House of Assembly thereof, as follows :
I. So much, if any, of the Letters Patent of His late
Majesty King William the Fourth, bearing date at Westminster,
the Fourth Day of May, in the second Year of his Reign, and
commonly called the ” Charter of Justice,” and so much, if
any, of any other Law or Ordinance heretofore existing in this
Colony, as shall be repugnant or inconsistent with any of the
Provisions of this Act, shall be repealed, and the same is
hereby repealed accordingly.
II. From and after the commencement of this Act, every
Question, or Matter of Fact, or of mixed Law and Fact, in
dispute between the Parties to any Civil Case depending in
the Supreme Court of this Colony shall, except as is herein-
after in the 4th Section provided, be tried by Jury.
HI. No Question which shall be a pure and unmixed
Question of Law shall be, at any time, or in any case, referred
or submitted to a Jury, but every such Question shall be
reserved for the determination of the Court.
IV. It shall be competent for the Attorney of either of the
Parties to any Civil Case depending in the Supreme Court,
at any time after the Pleadings in such Case shall have been
closed, to serve a Notice upon the Attorney of the opposite
Party, calling upon him to attend before a Judge of the Supreme
1 Superseded by Act No. 23 of 1891. Ci Nos. 142 and 164,
1854] COURTS OF JUSTICE 123
Court in Chamber, at some time, to be specified in such Notice,
there to settle the Issue or Issues to be tried by Jury : Pro-
vided that it shall be competent for the Parties to any such
Case, at any time, after Pleadings closed, and before the serving
by either of them of such Notice as aforesaid, to agree together,
in writing, signed by their respective Attorneys, that such
Case shall be tried without a Jury, and, thereupon, such Case
shall be proceeded with, and be tried in like manner precisely
as if this Act never had been passed : Provided, however,
that as often as any Facts in dispute in any Case shall be tried
by Jury, then all Facts in dispute in the same Case shall be
tried by Jury.
V. The Issue or Issues in any such Case as aforesaid, to
be tried by Jury, shall, as much as may be, be settled and
framed, so as to present separately and successively, and in
plain and precise Language, every Matter of Fact affirmed by
one Party in the Suit, and denied by the other : Provided that
no Issue shall be settled or framed in regard to any Matter
or Question not arising upon the Pleadings as pleaded, unless
both Parties shall consent thereto, in which Case the Pleadings
shall be thereupon amended in such Manner as to put in
Issue such Matter or Question.
VI. Whenever, in any Matter or Question which is, in
Law, a Matter or Question of Mixed Law and Fact, the Fact
shall, in contemplation of Law, be capable of being separated
from the Law with which it is mixed, and both Parties shall
desire the separation, in the Issues, of the Fact from the
Law ; such separation may, should the Judge see fit, be made
in such manner that the Fact alone shall be submitted to the
Jury, and the Law connected therewith shall be reserved for
the Court.
VII. As often as any Issue shall be settled or framed for
trial by Jury in any Case, in regard to which or the Matter
of which either Party shall claim that the other Party may
be condemned in Damages, then the Issues in such a Case
shall be so settled and framed as to authorize and require the
Jury, in case they shall find for the Party claiming such
Damages, to assess the said Damages.
VIII. Either Party to any such Case as aforesaid, who
shall, before the Judge in Chamber, have objected to the
form or substance of any Issue approved of by the said Judge,
or who shall, before such Judge, have desired the admission
of some Issue which the said Judge shall have refused to
admit, may, upon Notice to the opposite Party, move the
Supreme Court to review the Decision of the Judge in Chamber
regarding any such Issue ; and thereupon such Court shall
make such Order in the Matter, as Justice shall seem to
124 CAPE OF GOOD HOPE [1854
require : Provided that any Judge before whom, in Chamber,
the settlement of the Issues in any Case shall come, may, of
his own Motion, refer the settlement of such Issues, or of any
of them, to the Supreme Court, and thereupon such Court
shall, after hearing the Parties, settle the same.
IX. As soon as may be after the Issue or Issues in any such
Case as aforesaid shall have been settled and framed, the same
shall be fairly and correctly engrossed by the Attorney, who
shall have served the Notice, in the Fourth Section mentioned,
to attend before a Judge in Chamber, and such Attorney shall
carry the said Issue or Issues, so engrossed, to the Judge
before whom, in Chamber, the same shall have been settled,
and such Judge shall sign the Engrossment thereof, and
thereupon such Attorney shall lodge such Engrossment with
the Registrar of the Supreme Court : Provided that as often
as all or any of the Issues in any Case shall be finally deter-
mined, not by the Judge, but by the Court, then all the Issues
in such Case, after being engrossed as aforesaid, shall be signed
by the Registrar aforesaid, and not by any Judge.
X. [Certain days shall be set apart for Trials by Jury in
the Supreme Court.]
XI. All Trials by Jury in the Supreme Court shall be had
before the Chief Justice of the said Court, or before any other
of the Judges thereof, and a Jury of Nine Men.
XII. [Cases shall be set down for trial at least 14 days
before the day on which they are to be tried.]
XIII. [The Registrar of the Supreme Court shall give
notice to the Sheriff that a Jury will be required.]
XIV. [The Sheriff shall then summon 36 jurors of those
liable to serve in criminal cases.]
XV. [The manner of summoning jurors to try civil cases
shall be the same as for those summoned to try criminal cases.]
XVI. [Persons who do not appear after having been
summoned to serve as jurors, shall be liable to a fine not
exceeding 25.]
XVII. [If such fine remains unpaid, execution may be sued
out by the Attorney-General for the recovery thereof.]
XVIII. [Each of the Parties to a case may strike out from
the list of 36 jurors the names of 9 jurors. From the names
remaining, 9 jurors shall be selected by lot.]
XIX. [If more cases than one are set down for trial on
the same day, then the Parties to each case shall successively
have the right to strike out 9 names from the list of jurors.]
XXII. No Challenge to any Man, drawn as aforesaid, to
serve as a Juror, shall be allowed, except a Challenge for
Cause, and that the Causes for which any such Juror may be
challenged, and the manner and form of trying the existence
1856] COURTS OF JUSTICE 125
of any Cause of Challenge alleged against any such Juror,
shall be the same, in all respects, as would, by Law, be per-
mitted or prescribed in a Civil Case depending, and about
to be tried, in one of Her Majesty’s Courts of Record at
Westminster.
XXIII. [The presiding Judge shall administer an oath to
the Jury.]
XXIV. [When the Judge shall have summed up the
evidence in a case, the Jury may withdraw to consider their
Verdict.]
XXV. It shall not be competent for any Jury to deliver
their Verdict upon any one or more of the Issues left to them,
if more than one, unless they shall at the same time deliver
their Verdict on all the Issues so left to them.
XXVI. No fewer than Six Jurors of the Nine Jurors com-
posing the Jury must concur in every Verdict of such Jury,
and every Verdict in which not fewer than Six Jurors of the
Nine Jurors, composing the Jury, shall concur, shall be received
and regarded as the Verdict of such Jury : Provided that no
Verdict except one in which the whole of the Jurors composing
the Jury shall concur, shall be capable of being delivered or
received until after the Jury shall have been in deliberation
upon their Verdict for not less than One Hour.
XXVII. [The Judge may adjourn the Court from time to
time and the Jurors shall be bound to attend on the resumption
of the Court’s business after adjournment.]
XXVIII. [The Verdict of the Jury may be either a general
Verdict or a special Verdict.]
XL. [Appeals to Her Majesty in Her Privy Council allowed.]
XLIII. This Act shall commence and take effect from and
after the promulgation thereof. P.R.O. C.O.
RESIDENT MAGISTRATES. [4 June 1856.]
No. 20 of 1856.
No. 80. An Act. For amending and consolidating the Laws
relative to the Courts of Resident Magistrates.
WHEREAS it is expedient to amend and consolidate the
laws relative to the courts, jurisdiction, powers, and duties
of the resident magistrates within the colony : Be it therefore
enacted by the Governor of the Cape of Good Hope, with the
advice and consent of the Legislative Council and House of
Assembly thereof, as follows :
I. Courts of resident magistrates l shall be, and the same
1 The attainments required of magistrates as regards education and
experience, as also the qualifications demanded for other civil servants, are
set forth in Act No. 32 of 1895, not printed in this volume.
i 2 6 CAPE OF GOOD HOPE [1856
are hereby declared to be, erected, constituted, and established
for and within each of the following districts, that is to say,
Cape Town and the district thereof, Wynberg, Simon’s Town,
Malmesbury, Piketberg, Stellenbosch, the Paarl, Worcester,
Tulbagh, Clanwilliam, Swellendam, Riversdale, Caledon,
Beaufort, George, Aliwal, Uitenhage, Port Elizabeth, Albany,
Fort Beaufort, Bathurst, Stockenstrom, Somerset, Victoria,
Fort Peddie, Albert, Queenstown, Graaff-Reinet, Richmond,
Cradock, Colesberg, East London, Alexandria, Prince Albert.
Victoria (West), Bredasdorp, Calvinia, Middelburg, Aliwal
(North), Oudtshoorn, and Namaqualand ; and the said
courts shall be respectively holden by and before the resident
magistrates for the districts aforesaid.
IL IV. [Establishment of courts and the limits of magis-
tracies by proclamation.]
V. [Resident magistrates to be appointed by the Governor.]
VII. The courts of the resident magistrates aforesaid shall
be respectively courts of record, and the pleadings and pro-
ceedings of the said courts shall be carried on, and the sentences,
decrees, judgments, and orders thereof pronounced and
declared in open court, and not otherwise ; and the several
pleadings and proceedings of the said courts shall be in the
English language ; and in all criminal cases the witnesses
against and for any accused person or persons shall deliver
their evidence viva voce, and in open court.
VIII. Every resident magistrate of the colony shall have, in
all civil cases brought or instituted against any person residing
within the district for which such resident magistrate shall have
been appointed, the jurisdiction following, that is to say/
1. In all cases founded upon any bill of exchange,
promissory note, good-for, or other written
acknowledgment of debt, commonly called a
liquid document, in which the sum demanded
shall not exceed forty pounds sterling.
2. In all cases (except as hereinafter is excepted) in
which the debt or damages demanded shall not
exceed twenty l pounds sterling.
3. No such magistrate shall have jurisdiction in, or
cognizance of, any action or suit wherein the
title to any lands or tenements, or the title to
any fee, duty, or office is in question, or any
action or suit to try the validity of any will,
or other testamentary instrument, or any action
or suit whereby rights in future can be bound. . . .
IX.-XV. [Jurisdiction in matters of ejectment, recovery
of debts, attachment of goods, etc.]
1 Changed to ” fifty ” by Act No. 34 of 1909.
1864] COURTS OF JUSTICE 127
XVI. [A decree of civil imprisonment may be granted
where a debtor has not sufficient moveable property to meet
an award made to a plaintiff by the court.]
XVII.-XXXII. [Arrest, imprisonment, arrest of goods in
security for rent, etc.]
XXXIII. It shall and may be lawful for any person, being
a party to any civil suit or action depending in the court of
any resident magistrate within this colony, to appeal against
any final judgment, decree, or sentence of such court … to
the supreme court, or to the circuit court which shall next
be holden for the district of such resident magistrate. . . .
XLII. The resident magistrates of the colony shall, re-
spectively, have jurisdiction, without appeal or review, in all
cases of crimes and offences wherein any person may be
accused of any crime or offence not punishable by death,
transportation, or banishment from this colony. . . .
XLIII. It shall not be lawful for any court of resident
magistrate, in any case, to sentence or adjudge any female to
receive personal correction, or to hard labour on any road,
street, or public place.
XLIV. [Crimes commenced in one district and completed
in another are triable by the magistrate of either district.]
LVIII. [The Letters Patent commonly called the Charter
of Justice, as far as repugnant, is repealed, as also various
ordinances.]
LIX. [Rules, orders, and regulations for procedure before
the Courts of Resident Magistrate, dated 22nd March 1828,
are hereby repealed, and others are enacted.]
LX. [Interpretation clause.]
LXI. This Act shall commence and take effect from and
after the promulgation thereof.
P.R.O., C.O. 50/3.
THE EASTERN DISTRICTS COURT ESTABLISHED.
[26 July 1864.]
No. 21 of 1864.
No. 81. Act. For adding to the Number of Judges of the
Supreme Court, and for other purposes. 1
WHEREAS it has been found that the number of Judges of
which the Supreme Court, as at present constituted, is in-
sufficient to enable the said Judges to hold Courts in the
several districts of this Colony as frequently as the wants of
the inhabitants require : And whereas, in order to remedy
1 Cf. further Acts No. 35 of 1896, No. 35 of 1904, and No. 9 of 1905, not
printed in this volume.
128 CAPE OF GOOD HOPE [1864
these evils, and to afford, at the same time, to the inhabitants
of the Eastern Districts of this Colony the benefit of a local
Court, it is expedient to add to the number of the Judges of
the said Supreme Court, and to enable certain of the Judges
to form a separate Court, having jurisdiction over the said
Eastern Districts, but so, however, as not to interfere with
the jurisdiction of the said Supreme Court over every part
and portion of the entire Colony : Be it enacted … as
follows :
I. [Repugnant laws repealed.]
II. The Supreme Court aforesaid shall henceforth consist
of one chief justice and four puisne judges.
III. It shall be lawful for the Governor to appoint, pro-
visionally, until Her Majesty’s pleasure be known, the puisne
judge at present required to complete the number aforesaid
of four puisne judges.
IV. Such judge shall be appointed in manner and form
as by the fourth section of the Charter of Justice directed, in
regard to the appointment of fit and proper persons to supply
such vacancies in the office of judge, as are in the said section
mentioned.
VII. A court of justice is hereby established in and for
the several districts named in the Schedule to this Act, to
have and exercise such jurisdiction as is hereafter specified,
and such court shall be called ” the Court of the Eastern
Districts of the Cape of Good Hope.”
VIII. The said last-mentioned court shall consist of, and
be holden before, any two of the puisne judges of the Supreme
Court, whom the Governor shall from time to time assign for
the purpose.
IX. The Court of the Eastern Districts hereby created
shall have, throughout the districts within and for which it
is established, a jurisdiction concurrent with that of the
Supreme Court in and over all causes arising, and persons
residing and being, within the said districts.
XXIII. In the Court of the Eastern Districts, one judge
thereof shall be competent to execute all and every the powers,
authorities, and jurisdictions by this Act granted to or vested
in the said court. . . .
XXIV. [In case of difference of opinion on matters heard
by two judges, causes may be removed to the Supreme Court.]
XXV. [In civil suits appeal may be had to the Supreme
Court.]
XXXVI. [Attorney-General or Solicitor-General, if one is
appointed, shall prosecute. Attorney-General may appoint a
person to prosecute. Solicitor-General (when appointed) to
possess the powers conferred on Attorney-General in regard
1876] COURTS OF JUSTICE 129
to criminal cases. Solicitor-General to be appointed by the
Queen, but Governor may appoint provisionally.]
XXXVII. [Holding of usual circuit courts not prevented.]
XXXVIII. [Appeal from circuit courts to be direct to
Supreme Court ; but causes may be referred from Circuit to
Eastern District Court by consent of parties or by order of
presiding judge.]
XLIII. This Act may be cited for all purposes as ” The
Administration of Justice Act, 1864.
Schedule : Albany, Albert, Alexandria, Aliwal North,
Bathurst, Bedford, Colesberg, Cradock, Fort Beaufort, Graaff-
Reinet, Hopetown, Humansdorp, Middelburg, Murraysburg,
Peddie, Port Elizabeth, Queenstown, Richmond, Stocken-
strom, Somerset, Uitenhage, Victoria East.
P.R.O., C.O. 50/4.
SPECIAL JUSTICES OF THE PEACE.
No. 10 of 1876.
No. 82. Act. To improve the Administration of Justice in
places distant from a Seat of Magistracy. [Assented to
4th July 1876.]
WHEREAS it is expedient that facilities should be given for
the trial of certain offences committed at places distant from
the seat of a resident magistrate : Be it enacted by the Governor
of the Cape of Good Hope, with the advice and consent of
the Legislative Council and House of Assembly thereof, as
follows :
I. It shall be lawful for the Governor from time to time
to appoint any person whom he may think proper to act as
a special justice of the peace under this Act within such local
limits as may be fixed and determined by him, not being
within ten miles of the office of any resident magistrate.
II. Every such special justice of the peace shall have and
enjoy, and be at liberty to exercise, within the limits so fixed
and determined as aforesaid, over and in respect of any person
committing within such limits any of the offences following,
that is to say :
(A) Assault, where no dangerous wound is given and
no dangerous weapon is used.
(B) Thefts of any property not being a horse, mare,
gelding, colt, filly, mule, ass, bull, cow, ox, heifer,
calf, sheep, goat, or ostrich, and not exceeding
in value the sum of two pounds sterling.
(C) Attempt to commit either of the above offences, or
being accessory .to the commission thereof.
130 CAPE OF GOOD HOPE [1879
(D) Receiving stolen goods (not being anything ex-
cepted in clause B, and not exceeding in value
the sum of two pounds sterling), knowing them
to have been stolen.
(E) (F) (G) (H) [Contravention of any municipal
regulation, of certain police regulations, of pales
regulating the sale of spirituous liquors and of
laws relating to passes, contracts of service, etc.]
the same jurisdiction, power, and authority as if he were the
resident magistrate of the district in which the offence then
under investigation was committed, [but only minor punish-
ments may be inflicted by such special justice of the peace.]
IX. [Proceedings in cases summarily adjudicated to be
forwarded to Registrar of Supreme or Eastern Districts Court,
as the case may be, to be confirmed or altered or reversed.]
XIV. This Act may be cited for all purposes as ” The
Better Administration of Justice in Criminal Cases Act, 1876.”
P.R.O., C.O. 50/6.
THE HIGHER COURTS OF JUSTICE.
No. 5 of 1879.!
No. 83. Act. To increase the Efficiency of the Court of the
Eastern Districts, and to Improve the Administration of
Justice generally. [Assented to 8th September 1879.]
WHEREAS it has been found expedient to add to the number
of judges constituting the court of the eastern districts, and
to make provision for appeals from the said court and from
the circuit courts, and to establish a court of criminal appeal
for the Colony : Be it therefore enacted by the Governor of
the Cape of Good Hope, by and with the advice of the Legis-
lative Council and House of Assembly thereof, as follows :
I. [Repugnant statutes repealed.]
II. [Supreme Court to consist of chief justice and five
puisne judges.]
III. The court of the eastern districts shall consist of and
be holden by, and before, three of the puisne judges of the
supreme court, of whom one, to be called the judge president,
and who shall be nominated and appointed by the said Governor,
shall be a judge of the court of appeal hereinafter mentioned,
and the two others shall not be judges of the said court of
appeal. . . .
IV. Every judge who shall be assigned and appointed to
the office of judge president of the eastern districts court shall
1 Superseded by Act No. 35 of 1896.
1879] COURTS OF JUSTICE 131
be entitled to hold the said office so long as he shall continue
to be a judge of the supreme court.
V. [When a case is heard by two judges and they differ,
the case is to be suspended until three judges shall be present.]
VI. From and after the taking effect of this Act there shall
be in this Colony a court of appeal, to be called ” The Court
of Appeal of the Cape of Good Hope.” . . .
VII. The said court of appeal shall be a superior court of
record, and shall consist of the chief justice of the Cape of
Good Hope, the judge president of the eastern districts court,
and two other puisne judges of the supreme court, who shall
be thereto duly assigned and appointed by the Governor,
acting by and with the advice of the executive council.
VIII. Every judge who shall be appointed to the office of
judge of the court of appeal shall hold such office so long as
he shall continue to be a judge of the supreme court.
XI. It shall be lawful for any person being a party to any
civil suit in the eastern districts court, or in any circuit court,
to appeal to the said court of appeal against any judgment,
decree, or order of such eastern districts court or circuit
court ; . . .
XII. The forty-second and forty- third sections of the
charter of justice, and the twenty-third, twenty-fourth,
twenty-fifth, and twenty-sixth sections of Act No. 21 of 1864
are hereby repealed.
XVIII. [Judges of appeal court to frame rules for that
court.]
XX. An appeal to Her Majesty the Queen shall be allowed
by such court of appeal against any final judgment, decree,
or order thereof in any civil suit or action in which an appeal
is now allowed, and the fiftieth, fifty-first, and fifty-second
sections of the charter of justice shall apply, mutatis mutandis,
to every appeal from the said court of appeal, precisely as if
such court of appeal were the supreme court in the said charter
mentioned.
XXII. The judges of the said court of appeal, or any
three of them, shall likewise constitute a court of appeal in
criminal cases, and appeals shall be allowed to the said court
of appeal [in certain specified instances].
XXIX. This Act shall take effect when and so soon as
the Governor, with the advice of the Executive Council, shall,
by proclamation published in the Government Gazette, declare
that the same is in force.
XXX. This Act may be cited for all purposes as ” The
Administration of Justice Amendment Act, 1879.”
P.R.O., C.O. 50/6.
132 CAPE OF” GOOD HOPE [1880
ADMINISTRATION OF JUSTICE IN GRIQUALAND
WEST.
No. 12 of i860. 1
No. 84. Act. To amend in certain respects Act No. 39 of 1877
and Act No. 5 of 1879. [Assented to 29th July 1880.]
WHEREAS it was provided by Act No. 39 of 1877 that,
from and after the annexation of the province of Griqualand
West to the colony of the Cape of Good Hope, the supreme
court of the said colony shall consist of one chief justice and
five puisne judges, the recorder of Griqualand West being one
of them : and whereas it was further provided by the said
Act that appeals from the decisions of the high court of
Griqualand West, or of any circuit court within the said
province, shall be made in the first instance to the supreme
court of this colony, and that appeals from the land court
of Griqualand West may, by consent of parties, be removed
into the said supreme court : and whereas by the subsequent
Act No. 5 of 1879, it was provided that the supreme court
shall consist of one chief justice and five puisne judges, the
said recorder not being included among the said five judges :
and whereas by the said last-mentioned Act, a court of appeal
in criminal as well as in civil cases was established in respect
of decisions of the eastern districts court, and from the circuit
courts of this colony, and certain provisions were made in
respect of the mode of procedure to regulate such appeals :
and whereas it is expedient in view of the future annexation
of the said province to the said colony that the said first-
mentioned Act should be amended in such a manner as to
provide one and the same court of appeal for the united
colony, to render the mode of procedure in all appeals uniform,
and in other respects to make the provisions of the first-
mentioned Act consistent with Act No. 5 of 1879 : Be it
enacted by the Governor of the Cape of Good Hope, by and
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
I. So much of the Royal Letters Patent, commonly called
the ” Charter of Justice,” of the Act No. 39 of 1877, f tne
Act No. 5 of 1879, and of any other law in force in this colony
at the time of the taking effect of this Act, as shall be repugnant
to or inconsistent with the provisions of this Act, shall be,
and the same is hereby repealed.
II. From and after the annexation of the said province
to the said colony, the supreme court of the said colony shall
‘Repealed by Act No. 35 of 1896, which gave to the Eastern Districts
Court jurisdiction over all causes arising in Griqualand West.
1884] COURTS OF JUSTICE 133
consist of one chief justice and six puisne judges instead of
five as heretofore, the additional judge being the recorder for
the time being of Griqu aland West.
III. In lieu of any right of appeal which may, under and
by virtue of the loth and nth sections of the said Act No. 39
of 1877, exist at the time of such annexation as aforesaid to
the supreme court of this colony, such appeal shall be made,
in the first instance to the court of appeal of this colony instead
of the said supreme court, and all and singular the provisions
of the said Act No. 5 of 1879, contained in the sections
numbered eleven to twenty-nine inclusive, shall apply, mutatis
mutandis, to the said high court, precisely as if the said high
court had been therein mentioned instead of the eastern
districts court.
[Etc.] P.R.O., C.O. 50/6.
MARRIAGE LICENSES. [14 June 1882.]
No. 9 of 1882.
No. 85. Act. To regulate the Issue of Licenses for the Solemni-
zation of Marriages, and to Abolish Matrimonial Courts.
II. [Courts of Resident Magistrates substituted for Matri-
monial Courts.]
III. [Magistrates may grant marriage licenses.]
[Etc.]
P.R.O., C.O. 50/7.
THE DUTCH LANGUAGE IN THE COURTS OF LAW.
[Promulgated 25th July 1884.]
No. 21 of 1884.
No. 86. Act. To sanction the use of the Dutch Language
equally with the English in Courts of Justice.
WHEREAS it is expedient to afford facilities for the use of
the Dutch language equally with the English in courts of
justice and in legal proceedings : Be it therefore enacted by
the Governor of the Cape of Good Hope, with the advice and
consent of the Legislative Council and House of Assembly
thereof, as follows :
i. Notwithstanding anything contained in the Charter of
Justice or in the Act No. 20 of 1856, or in any other statutory
enactment having the force of law in the colony, the judges
of the superior courts of justice may, and resident magistrates,
special justices of the peace, and field-cornets shall, allow the
use of the Dutch language equally with the English language
I 3 4 CAPE OF GOOD HOPE [1885
at the hearing of any suits, cases, or enquiries, civil or criminal,
in their respective courts when requested so to do by any of
the parties to such suits or other proceedings ; and upon such
allowance it shall be lawful for either of the parties to such
suits, cases, or other proceedings, or their respective counsel,
attorneys, or agents to use either the English or Dutch language
in the conduct of their cases before such courts.
2. Whenever any divisional council shall by a majority of
its members, resolve at a meeting duly convened for that
purpose ; or whenever no fewer than one-third of the voters
registered for parliamentary elections in any division shall in
writing, by petition, apply to the Governor to order the issuing
of summonses, notices, and documents referred to in any
summons, in all suits brought in any of the courts within such
division, in the Dutch as well as in the English language, it
shall be lawful for the Governor in either of the cases before-
mentioned by proclamation in the Gazette to grant such order.
3. This Act may be cited as ” The Dutch Language Judicial
Use Act, 1884.”
P.P 0., C.O. 50/7.
THE LAW RELATING TO JURORS.
[Promulgated 7th August 1885.]
No. 17 of 1885.1
No. 87. Ad. To amend the Law relating to Jurors.
WHEREAS it is provided by the sixteenth section of Ordi-
nance No. 84, that no person shall be put on trial on any indict-
ment at any criminal session of the Supreme Court unless the
bill of such indictment shall first have been presented to a
Grand Jury, and shall have been returned by them a true bill :
and whereas this provision does not extend to criminal trials
other than those in the Supreme Court, and has been found in
practice to be inconvenient and unnecessary in the Supreme
Court : and whereas it is expedient to amend the law relating
to giving publicity to jurors’ lists: Be it enacted by the
Governor of the Cape of Good Hope, by and with the advice of
the Legislative Council and House of Assembly thereof, as
follows :
i. The sixteenth and seventeenth sections of the said
Ordinance No. 84 and all other laws or rules of court relating
to the attendance and service of grand juries at the criminal
sessions of the Supreme Court, are hereby repealed : Provided
that nothing herein contained shall be deemed to dispense
1 Cf. ” The Jury Act,” No. 22 of 1891 below, and Act No. 35 of 1904, not
printed.
i886] COURTS OF JUSTICE
with the necessity of lists of grand jurors being made out as
heretofore for the purpose of selecting juries in civil cases as
provided by Act No. 30 of 1874, or to alter the law which
renders grand jurors whose names appear in such list liable
to serve as petty jurors in the Supreme Court.
2. So much of the seventh section of the said Ordinance
as requires that a copy of the jurors’ list shall annually be
affixed to the principal door of every church, chapel, or other
place of public worship in a certain portion of such district,
shall be and is hereby repealed.
3. This Act may be cited as the ” Jurors’ Law Amendment
Act, 1885.”
P.R.O., C.O. 50/7.
APPEAL COURT AND SHERIFF’S DUTIES ACT.
[Promulgated 2gth June 1886.]
No. 17 of I886. 1
No. 88. Ad. To amend the Law relating to Appeals and
Duties of the Sheriff, and to make more convenient pro-
vision regarding Legal Process in certain Cases.
[Preamble.]
1. From and after the passing of this Act the Court of
Appeal shall cease to exist, and all and singular the powers,
duties, and authorities conferred upon the said Court of Appeal
by Act No. 5 of 1879, Act No. 40 of 1882, or any other Act of
Parliament, shall be vested in the Supreme Court of the Colony.
2. [Appeals to the Supreme Court to be heard before not
less than three Judges, one of whom shall be the Chief Justice
of the Colony.]
3. [Puisne Judges assigned to the Supreme Court to remain
so.]
4. In case any appeal shall be heard before the Supreme
Court against the unanimous judgment of the full Eastern
Districts Court or High Court of Griqualand, such judgment
shall be affirmed unless three or more of the Judges sitting in
appeal shall concur in reversing or varying the same.
5. It shall be lawful for the prosecutor or defendant in any
criminal suit, which shall be brought in appeal or review before
the Eastern Districts Court, High Court of Griqualand, or
any Circuit Court, from any inferior court, to appeal to the
Supreme Court against the judgment of the said Eastern
Districts Court, High Court of Griqualand, or Circuit Court,
as the case may be. . . .
1 Cf . Act No. 3 5 of 1 896, not printed.
136 CAPE OF GOOD HOPE [1888
6-12. [Provisions for the seizing and sale of property by
the Sheriff in execution of a decree of court.]
13. [Judges of Supreme Court may make rules and orders
for Courts of Resident Magistrates.]
14. The following shall be added as a proviso to the second
section of Act No. 21 of 1884 : ” Provided, however, that if
it shall appear to the officer issuing any such process as afore-
said, either from his personal knowledge or otherwise, that the
person upon whom the same is intended to be served is suffi-
ciently acquainted with the English language to understand
the purport of such process, or is not sufficiently acquainted
with the Dutch language to understand the purport of such
process if it be drawn in the Dutch language, then it shall not
be necessary to issue such process in the Dutch language as
well as the English language.”
15. This Act may be cited as the ” Appeal Court and
Sheriff’s Duties Act, 1886.”
P.R.O., C.O. 50/7.
THE DUTCH LANGUAGE JUDICIAL USE AMENDMENT
ACT.
[Promulgated iyth August 1888.]
No. 15 of 1888.
No. 89. Act. To amend ” The Dutch Language Judicial Use
Act, 1884.”
Be it enacted by the Parliament of the Cape of Good Hope,
in Parliament assembled, as follows :
i. In addition to the proviso set forth in the fourteenth
section of the Act No. 17 of 1886, there shall be added the
following proviso to the second section of Act No. 21 of 1884 :
” Provided, further, that if it shall appear to the officer issuing
any such process as aforesaid, either from his personal know-
ledge or otherwise, that the person upon whom the same is
intended to be served is sufficiently acquainted with the Dutch
language to understand the purport of such process if drawn
in that language, or is not sufficiently acquainted with the
English language to understand the purport of such process if
it shall be drawn in the English language, then it shall not be
necessary to issue such process in the English language, but
issue thereof in the Dutch language shall, for all legal purposes,
and notwithstanding anything to the contrary contained in
any law in force in this Colony, be good, valid, and effectual.”
2. This Act may be cited as ” The Dutch Language Judicial
Use Amendment Act, 1888.”
P.R.O., C.O. 50/7.
1891] COURTS OF JUSTICE 137
THE JURY ACT, 1891. [December i, 1891.]
No. 22 of 1891.
No. 90. Ad. To consolidate and amend the Law relating
to Juries.
Be it enacted by the Governor of the Cape of Good Hope,
with the advice and consent of the Legislative Council and
House of Assembly thereof, as follows :
1. The laws mentioned in the Schedule to this Act, and so
much of any other law as shall be repugnant to or inconsistent
with the provisions of this Act, are hereby repealed.
QUALIFICATION OF JURORS.
2. Every man residing within the Colony between the
ages of twenty-one years and sixty years who shall possess
the qualification in this Act provided, and not therein declared
disqualified or exempted, shall be qualified and liable to serve
as a juror.
3. Every man between the ages aforesaid who shall be the
owner or occupier of any immovable property of the value
of not less than three hundred pounds according to the valua-
tion roll of any Divisional Council or Municipality, or shall
be in the receipt of salary or wages amounting to not less
than one hundred and fifty pounds per annum, and who
shall not be disqualified or exempted by the terms of this
Act, shall be qualified and liable to serve as a juror on any
jury empanelled for any trial or enquiry within the jury district
in which such person shall reside.
4. When any such property shall be jointly occupied by
more persons than one, each of such joint occupiers, if other-
wise qualified or liable, shall be qualified and liable to serve
as a juror as aforesaid in case the value of such property,
when divided by the number of such joint occupiers, shall
give a sum not less than three hundred pounds for each such
occupier.
5. [When no valuation roll exists, the person making the
jury lists shall estimate the value of properties.]
SPECIAL JURORS.
6. Every man qualified and liable to serve as a juror shall
also be qualified and liable to serve as a ” special juror ” in
case he shall be
(i) The owner of landed property of the assessed value
of one thousand pounds ; or
(2 The occupier of such property as tenant of the
assessed value of one thousand five hundred
pounds ; or
138 CAPE OF GOOD HOPE [1891
(3) Although neither the owner nor occupier of landed
property of such assessed values as aforesaid, if
he shall be described in the jury lists as an archi-
tect, a civil engineer, a broker, manager of a
bank, manager or secretary of a fire or life
assurance company or society, or of any company
for the administration of estates, or be in the
receipt of salary amounting to five hundred
pounds per annum.
7. No person qualified as a ” special juror ” shall (unless
otherwise exempted) be on that account exempted from serving
on a petit jury.
DISQUALIFICATION OF JURORS.
8. The following persons shall not be qualified to serve
as jurors in any court or on any occasion :
(1) Any one who is not a natural-born or naturalized
subject of Her Mijesty ;
(2) Any one who has been convicted of and sentenced
for treason, murder, rape, theft, fraud, perjury,
forgery, fraudulent insolvency, or contraven-
tion of the diamond-trade laws, unless he shall
have received a free pardon.
(3) Any one who cannot read and write.
EXEMPTIONS.
9. The following persons shall be exempt from serving as
jurors, and their names shall not be inserted in any jury
list:
(i)-(6) [Those classes of men mentioned in Ord. 41
(4 Feb. 1828), footnote (No. 75).]
(7) All schoolmasters and school inspectors ;
(8) All masters of vessels and pilots ;
(9) All persons continuously employed in the working
of any railway or tramway ;
(10) All persons actually engaged as editors of, or
reporters for, newspapers.
JURY DISTRICTS.
10. Every area within a radius of thirty-six miles from
the court-house of the Resident Magistrates respectively of
Grahamstown, Kimberley, and every other town where a
circuit court is to be held, and within the judicial district in
which such town is situated, shall be deemed to be a ” jury
district.” And in regard to Cape Town, an area within a
radius of twenty miles from the court-house of the Resident
Magistrate of Cape Town, shall be deemed to be a ” jury
1891] COURTS OF JUSTICE 339
district ” although such area shall include portions of more
judicial districts than one.
11. [Any ” jury district ” of 36 mile sradius in which there
are not 54 qualified persons shall be extended to a radius of
48 miles.]
JURY LISTS.
12. The jury lists in use at the taking effect of this Act
shall continue in force and be used until new jury lists are
made and revised as in this Act is provided.
13. On or before the ist day of January in the next and
every succeeding year, the Resident Magistrates respectively
of every district which includes any such ” jury district ” as
aforesaid, shall, by written order, require the field-cornets or
any members of the police force who may be assigned for such
duty, to prepare in alphabetical order a true list or return of
all men residing within the limits mentioned in such order,
qualified and liable to serve as jurors or special jurors.
14. [Each such field-cornet or member of police shall make
out such list and deliver it to the Resident Magistrate not
later than the 20th January.]
15. [The persons making out the lists shall each year be
supplied with the previous year’s lists.]
16. For the purpose of preparing such lists the field-cornets
or other persons engaged in their preparation may put such
questions as they think proper, relating to the said lists, and
to the name and surname, place of abode, calling, business,
occupation, qualification, or age of any man residing in any
jury district.
17. [Every person making out the lists shall have access
to the valuation roll of any Divisional Council or Munici-
pality.]
18. [The Magistrate receiving the lists shall cause a true
list to be made out for his ” jury district ” and shall mark
the word ” special ” against the names of such persons as are
qualified to serve as special jurors.]
19. [A copy of the list shall be affixed to the door of the
court-house with a notice stating that a court will be held to
revise the list.]
20. [If there is no jury list for the year, the list of the
previous year shall be used.]
COURT OF REVISION OF JURY LISTS.
21. On the day and at the place appointed in the notice
aforesaid, the Resident Magistrate shall hold a court, con-
sisting of himself as president, and such members of the
Divisional Council (if any) as may attend, for revising the
140 CAPE OF GOOD HOPE [1891
jurors’ lists, but if after fifteen minutes of the time appointed
no member of the Divisional Council is in attendance -the
Resident Magistrate may act alone.
22. The decisions of the said court shall be by majority
of the votes of those attending, and if there be an equality of
votes, the Resident Magistrate presiding shall have a casting
vote in addition to his vote as a member of the court. When
no member of the Divisional Council attends, the decision of
the Resident Magistrate shall be the decision of the said court.
23. [Lists to be produced at court.]
24. [Court may strike out names on the list.]
25. [Court may correct errors in the lists.]
26. [After the lists are revised they shall be sent to the
Sheriff of the Colony.]
JURORS’ BOOKS.
27. [The Sheriff shall cause a Jurors’ Book to be kept for
each district in which shall be copied the names of jurors.]
SPECIAL JURY IN CRIMINAL CASES.
28. The Supreme Court, Court of the Eastern Districts, or
High Court of Griqualand, within the jurisdiction of such
courts respectively, may on application made on behalf of Her
Majesty, or by any private prosecutor entitled to prosecute,
or by or on behalf of any defendant or person committed for
trial for any indictable offence (whether the indictment or
information shall have been served upon the accused or not),
order that the trial of the accused named in such order shall
be by a special jury in such courts, respectively, or in any
Circuit Court.
29. Whenever a criminal case has been ordered to be tried
before a special jury, the Registrar of the Court granting such
order shall forward a notice to the Sheriff, or his deputy in the
district in which the trial is to be held, informing him thereof.
30. [The Sheriff or his deputy shall thereupon draw the
names of 27 special jurors.]
31. [The prosecutor or his agent and the defendant or his
attorney shall then be entitled to strike out four names each
from the list of 27.]
32. [If the parties do not appear, the Sheriff shall reduce
the list to 19.]
33. The persons whose names are not struck out shall be
summoned to attend for the trial.
SUMMONING JURORS.
34. [The Sheriff or his deputy shall summon the juries for
criminal sessions ten days before the trial and for civil cases
1891] COURTS OF JUSTICE 141
seven days before the trial. The number summoned shall not
exceed 27.]
35. [The mode of summoning juries.]
36. [The officer summoning jurors shall make a return to
the Registrars of the Courts stating the manner of serving such
summons.]
DRAWING NAMES OF JURORS FOR SERVICE.
37. [Mode of drawing names of jurors to be summoned
and directions to be observed.]
38. [Sheriff to give notice of drawing, which is to be done
publicly.]
MISCELLANEOUS PROVISIONS.
39. [Verdict not invalid by reason of disqualification of any
juror or error in jury lists.]
40. [Jurors to be sworn.]
41. [They need not be sworn for each trial.]
42. [The court may allow an affirmation to be made.]
43. [If nine qualified men do not attend, the court may
call upon other qualified men present in the court-house or in
the town.]
44. [Jury to be kept apart by themselves till the judge has
summed up, and if they then wish they can retire in charge of
an officer of court.]
45. [In case of death or grave bodily or mental infirmity
of a jury, the Court may coempanel another jury.]
PENALTIES.
46. [Penalty for corruptly influencing jurors.]
47. [Every person, who, after being duly summoned, does
not attend to serve shall be liable to such fine as the court may
think fit.]
48. [Any person making a false claim of exemption shall
be liable to pay a fine of not more than 50.]
49. [If the Sheriff or his deputy takes a reward for illegally
exempting any person, he shall be liable to a fine not exceeding
100.]
50. [Penalty on field-cornets and other officers. for various
acts.]
51. [Any person removing or defacing a jury list posted up
on the door of a court-house is liable to a fine not exceeding
5-]
52. [Penalty for refusing to answer any question allowed
by section 16 not to exceed 2.]
53- [The judge may remit fines imposed on a juror for
default.]
142
CAPE OF GOOD HOPE
54. [If a fine is not paid the Registrar shall issue a writ.]
55. This Act may be cited for all purposes as the ” Jury
Act, 1891.”
SCHEDULE.
LAWS REPEALED.
No. and Year.
Ord. No. 84, 1831 .
Ord. No. i, 1843 .
Act No. 7, 1 86 1
Act No. 2, 1876 .
Act No. 17, 1885 .
Ord. No. 14, 1876 .
The Rules of Court
numbered respec-
tively 43, 44, 45,
46,49,51,52,275,
350, 360.
Title of Law.
“- For altering and amending the Law relative to
the qualification of persons liable to serve on
Grand and Petit Juries, and to the mode of
making put and returning lists of the same.”
” For amending the Law relative to the qualifica-
tion of Jurors.”
An Act to amend the Law relating to Grand and
Petit Jurors.
An Act to amend the Law relating to the making
out of lists of Jurors.
Act to amend the Law relating to Jurors.
Ordinance to amend the Laws regulating the
qualifications of Jurors in the Province of
Griqualand West.
C. of G. Hope Statutes 1652-1905, p. 2876.
CHAPTER II.
NATAL.
SECTION A.
CENTRAL GOVERNMENT.
BRITISH RESIDENTS IN NATAL.
No. 91. Treaty between the BRITISH RESIDENTS at Port
Natal and DINGAAN, KING OF THE ZULUS. [6 May 1835.]
1. Dingaan, from this period, consents to waive all claim to
the persons and property of every individual now residing at
Port Natal, in consequence of their having deserted from him,
and accords them his full pardon. He still, however, regards
them as his subjects, liable to be sent for whenever he may
think proper.
2. The British residents at Port Natal, on their part,
engage for the future, never to receive or harbour any deserter
from the Zulu country, or any of its dependencies ; and to use
every endeavour to secure and return to the King every such
individual endeavouring to find an asylum among them.
3. Should a case arise in which this is found to be im-
practicable, immediate intelligence, stating the particulars of
the circumstance, is to be forwarded to Dingaan.
4. Any infringement of this treaty on either part invali-
dates the whole.
Done at Congella, this Sixth Day of May 1835, in presence
of
UMTHELLA\C/M/ Indunas and Head Coun-
TAMBOOZA] cillors of the Zulu nation.
Mr. GEORGE CYRUS, Interpreter.
Signed on behalf of the British Residents at Port Natal,
(Signed) ALLEN F. GARDINER.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 5.
THE GREAT TREK FROM THE CAPE COLONY.
No. 92. Manifesto of the EMIGRANT FARMERS.
[From the Grahamstown Journal of 2 Feb. 1837.]
A document has been handed to us, with a request to give
it publicity, purporting to be the causes of the emigration
M3
144 NATAL [1837
of the colonial farmers, of which the following is a literal
translation :
Numerous reports having been circulated throughout the
colony, evidently with the intention of exciting in the minds of
our countrymen of prejudice against those who have resolved
to emigrate from a colony where they have experienced, for so
many years past, a series of the most vexatious and severe
losses ; and, as we desire to stand high in the estimation of our
brethren, and are anxious that they and the world at large
should believe us incapable of severing that sacred tie which
binds a Christian to his native soil, without the most sufficient
reasons, we are induced to record the following summary of our
motives for taking so important a step, and also our intentions
respecting our proceedings towards the native tribes which
we may meet with beyond the boundary :
1. We despair of saving the colony from those evils which
threaten it by the turbulent and dishonest conduct of vagrants,
who are allowed to infest the country in every part ; nor do we
see any prospect of peace or happiness for our children in any
country thus distracted by internal commotions.
2. We complain of the severe losses which we have been
forced to sustain by the emancipation of our slaves, and the
vexatious laws which have been enacted respecting them.
3. We complain of the continual system of plunder which
we have ever endured from the Caffres and other coloured
classes, and particularly by the last invasion of the colony,
which has desolated the frontier districts and ruined most of
the inhabitants.
4. We complain of the unjustifiable odium which has been
cast upon us by interested and dishonest persons, under the
cloak of religion, whose testimony is believed in England, to the
exclusion of all evidence in our favour ; and we can foresee,
as the result of this prejudice, nothing but the total ruin of the
country.
5. We are resolved, wherever we go, that we will uphold
the just principles of liberty ; but, whilst we will take care
that no one shall be held in a state of slavery, it is our deter-
mination to maintain such regulations as may suppress crime,
and preserve proper relations between master and servant.
6. We solemnly declare that we quit this colony with a
desire to lead a more quiet life than we have heretofore done.
We will not molest any people, nor deprive them of the smallest
property; but, if attacked, we shall consider ourselves fully
justified in defending our persons and effects, to the utmost
of our ability, against every enemy.
7. We make known, that when we shall have framed a code
of laws for our future guidance, copies shall be forwarded to the
1836] CENTRAL GOVERNMENT 145
colony for general information ; but we take this opportunity
of stating, that it is our firm resolve to make provision for
the summary punishment of any traitors who may be found
amongst us.
8. We propose, in the course of our journey, and on arriving
at the country in which we shall permanently reside, to make
known to the native tribes our intentions, and our desire to
live in peace and friendly intercourse with them.
9. We quit this colony under the full assurance that the
English Government has nothing more to require of us, and will
allow us to govern ourselves without its interference in future.
10. We are now quitting the fruitful land of our birth, in
which we have suffered enormous losses and continual vexation,
and are entering a wild and dangerous territory ; but we go
with a firm reliance on an all-seeing, just, and merciful Being,
whom it will be our endeavour to fear and humbly to obey.
By authority of the farmers who have quitted the Colony,
(Signed) P. RETIEF.
Parl. Papers, C. of G. Hope (Return to
an address of the House of Commons,
dated 7 May 1838), 0.98, p. 5.
No. 93. ATTORNEY-GENERAL’S OPINION REGARDING
THE TREK.
[13 August 1836.]
When the circumstances of this colony are taken into
consideration, it would seem next to an impossibility to prevent
persons who are so inclined from passing out of this colony
by the land boundaries thereof, either by laws now in force,
and which I have recapitulated in my report of loth September
1834, upon the Governor’s memorandum of the 5th September
1834, relative to the emigration of certain of the inhabitants
beyond the borders of the colony, or by any other laws which
can be framed. The penalties provided by the existing
laws, or any others which might be imposed, can only be levied
so long as the offender can be found within the colony ; and
if the penalties were exacted, even in a solitary instance,
there can be little doubt the effect would only be to put intend-
ing emigrants on their guard, and to keep their intentions
secret until a favourable opportunity occurred of quitting
the colony, before their removal was known to the authorities.
The farmers alluded to in the civil commissioner’s letter do
not appear to leave the colony with the intention of ever
returning. The laws I have referred to, seem to regard persons
who pass beyond the boundary for some temporary purpose,
10
NATAL [1836
and who, during their sojourn out of the colony, still consider
themselves as colonists ; but the class of persons under con-
sideration evidently mean to seek their fortunes in another
land, and to consider themselves no longer British subjects,
so far as the colony of the Cape of Good Hope is concerned.
Would it therefore be prudent or just, even if it were possible,
to prevent persons discontented with their condition, to try
to better themselves, in whatever part of the world they
please ? The same sort of removal takes place every day
from Great Britain to the United States.
But it may be said that danger may arise to the colony
from acts and dealings of the farmers in question, in the
progress of removal, with the frontier tribes, and that the
Government is justified in preventing any such danger. Admit
that it is so, is there any effectual means of arresting persons
determined to run away, short of shooting them as they pass
the boundary line ? I apprehend not ; and if so, the remedy
is worse than the disease. The Government, therefore, if I
am correct in my conclusions, is and must ever remain without
the power of effectually preventing the evil, if evil it be, re-
ported by the civil commissioners.
(Signed) A. OLIPHANT.
Parl. Papers, C. of G. Hope (Return to
anaddress of the House of Commons,
dated 7 May 1838), 0.98, p. 5.
BRITISH AUTHORITY BEYOND CAPE BORDERS.
No. 94. AnActiorthe Prevention and Punishment of Offences
committed by His Majesty’s Subjects within certain
Territories adjacent to the Colony of the Cape of Good
Hope. [13 August 1836.]
[6 & 7 W. iv., cap. 57.]
WHEREAS the Inhabitants of the Territories adjacent to
the Colony of the Cape of Good Hope to the Southward of the
Twenty-fifth Degree of South Latitude being in an uncivilized
State, Offences against the Persons and Property of such
Inhabitants and others are frequently committed by His
Majesty’s Subjects within such Territories with Impunity ;
for Remedy thereof be it enacted by the King’s most Excellent
Majesty, by and with the Advice and Consent of the Lords
Spiritual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the Authority of the same, That the
Laws which are now or which shall hereafter be in force in the
Colony of the Cape of Good Hope for the punishment of crimes
therein committed shall be and the same are hereby extended
and declared applicable to all His Majesty’s Subjects within
1836] CENTRAL GOVERNMENT 147
any Territory adjacent to the said Colony and being to the
Southward of the Twenty-fifth Degree of South Latitude,
and that every Crime or Offence committed by any of His
Majesty’s Subjects within any such Territory in contravention
of any such Laws shall be cognizable in any such Courts, and
shall be inquired of, tried, and prosecuted, and on Conviction
punished, in such and the same Manner as if the same had
been committed within the said Colony.
II. And whereas it is necessary to prevent as far as may
be the Commission of Crimes by His Majesty’s Subjects within
such Territories as aforesaid, and to provide for the Arrest,
Commitment, and bringing to Punishment of any of His
Majesty’s Subjects by whom any such Crimes may be per-
petrated ; be it therefore enacted, That it shall be lawful for
the Governor of the said Colony to address to any One or more
of His Majesty’s Subjects being within or about to resort to
any such Territories as aforesaid One or more Commission or
Commissions, authorizing him or them to exercise within such
Territories the Office of a Magistrate for the Purpose of prevent-
ing the Perpetration therein by any of His Majesty’s Subjects
of any Crimes or Offences, and for the Purpose of arresting,
committing to Custody, and bringing to Trial before such
Courts as aforesaid any of His Majesty’s Subjects charged on
sufficient Evidence before him or them with the Commission
of any such Crimes or Offences within any such Territories ;
and it shall also be lawful to the Governor of the said Colony,
by any such Commission or Commissions as aforesaid, to define
with all practicable and convenient Precision the local Limits
within which the Jurisdiction of any such Magistrate or Magis-
trates shall be so exercised, and to which it shall so extend ;
and within the limits so to be defined as aforesaid every such
Magistrate shall have, exercise, and enjoy all such Powers and
Authorities over and in Reference to His Majesty’s Subjects
inhabiting or being within the same as shall by any such
Commission or Commissions be specially granted : Provided
always, that no such Powers or Authorities shall be so granted
by any such Commission or Commissions, save only such as
shall be necessary for accomplishing the Purposes aforesaid
with Promptitude and Effect.
III. And be it further enacted, That all such Commissions
as aforesaid shall be made to continue in force only during
His Majesty’s Pleasure ; and the Governor for the Time
being of the said Colony shall be and he is hereby bound and
required to transmit a Copy of every such Commission by the
earliest opportunity to His Majesty, through One of His
Majesty’s Principal Secretaries of State, for His Approbation
or Disallowance.
148 NATAL [1837
IV. And be it further enacted, That nothing herein or in
any such Commission or Commissions contained shall extend
or be construed to extend to invest His Majesty, His Heirs
or Successors, with any Claim or Title whatsoever to Dominion
or Sovereignty over any such Territories as aforesaid, or to
derogate from the rights of the Tribes or People inhabiting
such Territories, or of Chiefs or Rulers, to such Sovereignty or
Dominion.
V. And be it further enacted and declared, That for the
purposes of this Act any Person lawfully administering the
Government of the said Colony shall be deemed and taken
to be the Governor thereof.
P.R.O., bound in C.O. 48/224.
CESSION OF TERRITORY.
No. 95. Cession of Natal Territory to EMIGRANT FARMERS,
by DINGAAN, KING OF THE ZULUS.
UNKUGINSLOAVE, tfh February 1837.
Know all men by this :
That whereas Pieter Retief Gouvernor of the Dutch
Emigrant South Africans has retaken my Cattle which Sin-
konyella had stolen which Cattle he the said Retief now de-
livered unto me. I, Dingaan, King of the Soolas, do hereby
Certify and declare that I thought fit to resign unto him the
said Retief and his Countrymen the place called Port Natal,
together with all the Land annexed, That is to say from the
Togala to the Omsaboobo River, and from the Sea to the
North as far as the Land may be useful and in my Possession.
Which I did by this and give unto them for their everlasting
Property.
As Witness
(Signed) MVARA, G. Raad.
JULIANUS, Do.
MANONDU, Do.
(Signed) De merk (en) van (The mark (in) of
de KONING DINGAAN. KING DINGAAN.)
As Witness M. OOSTHUIZEN.
A. C. GREYLING.
B. J. LlEBERBERG.
Translation.
We certify that the foregoing is a true Copy of what was
found by us by the bones of the late Mr. Retief in Dingaan’ s
Country.
(Signed) A. W. PRETORIUS, Chief Officer.
(Signed) K. P. LANDMAN, Commandant.
1837] CENTRAL GOVERNMENT 149
I hereby certify that the above Document is a true Copy
of the original Grant made by Dingaan to the Emigrant
Farmers and found on the murdered Body of the late Pieter
Retief, in my presence by Swart Potgieter on or about the
23d day of Deer. 1838.
(Signed) E. D. WARD PARKER.
P.R.O., MS. copy in C.O. 48/200.
No. 96. CESSION OF NATAL TERRITORY TO THE
KING OF ENGLAND. [21 June 1837.]
DINGARN KING OF THE ZooLus to the KING OF ENGLAND.
I have always treated your White people well, I have given
them plenty of ground to hunt upon, but they have been
continually at variance, & dispute among themselves and
with my people & I now wish them to be called back to
their own country I have always taken great care of them,
have never killed one of them, nor have I ever had such in-
tention I wish Capt?. Gardiner & all the Missionaries to
remain, as I can talk pleasantly with them. I wish a Chief
to be sent to Port Natal to pursue peace & to see that my
people do not go down there, & to tell them that they are
not to remain there If this is done the White people who are
there now may all stop, but if this is not done I should wish
them to be removed Capt 1 ?. Gardiner is the Chief you have
sent to Port Natal, but he says that he has no power to send
my people back who desert from me I wish him to send them
back & I wish him to be the Chief there If my people
who desert to Port Natal are sent away & not permitted to
remain there, I shall be satisfied I do not ask for them to be
sent back, as Capt n Gardiner tells me it is contrary to the
custom of White Kings. This is what I ask All the ground
on which the White people live about Port Natal I give to
the King of England I give him the whole country between
the Umgani river & the territory occupied by Faku & Napai,
from the sea coast to the Quathlamba mountains with the
exception of a district on the Umgani belonging to me which
commences at the mountain called Issicalla Sinyoka.
DINGARN ) TT .
King of the Zoolus/ x Hls sl n ‘
Signed in the presence of the following chiefs this 2ist day
of June 1837 at Nobamba :
MANYOSI …. Induna . . his mark x
MAPEETI …. Do. . . Do. x
MANGUANGA . . . Do. . . Do. x
THOMAS VERITY . Interpreter . Do. x
P.R.O., Original MS. in C.O. 48/193.
150 NATAL [1837
BRITISH AUTHORITY.
No. 97. Protest against a Magistrate’s Authority. [July 1837.]
[On 2ist April 1837 Captain Allen Gardiner of the Royal Navy
was commissioned by Governor D’ Urban to proceed to Natal as a Magis-
trate possessing criminal jurisdiction under Act 6 & 7 Wm. iv. cap.
57. His office was to be exercised ” within the Territory extending
from the left Bank of the Umzimvoobo to the Northermost limit of the
Zulu Territory, and from the Sea Coast to the Quathlamba Mountains ;
including also the whole of the Zulu Country, and its Dependencies.”
He could not find there a single white man ready to assist him by
performing police duties, and the few Englishmen then at Port Natal
protested against his appointment.]
Protest of the INHABITANTS OF NATAL against the appoint-
ment of Captain A. GARDINER, R.N., as a Magistrate
over them for the following reasons :
1st. That the Country of Natal is not an acknowledged
part of the British Empire, but a free settlement.
2nd. That this said Country of Natal was granted to the
resident Inhabitants by Chaka the late King, and confirmed
to them by Dingarne, the present King of the Zoolas, and
stiled by them the Whiteman’s Country.
3rd. That the power so invested in Capt. Gardiner is
contrary to the principles of equity, inasmuch as it extends
to British Subjects only, not empowering the said Capt.
Gardiner to punish any act of aggression committed by the
Native population or by other Europeans upon the British
residents of Natal.
4th. That the said Capt. Gardiner is not empowered to
decide upon civil cases, which would have much more materially
benefited this settlement by the increased confidence it would
have given to mercantile and mechanical men to settle at
Natal.
5th. That the appointment of Capt. Gardiner to take
cognizance of criminal causes only, might open the door to
acts of tyranny and oppression inasmuch as he is obliged by
the tenor of his Commission to forward and transmit to the
nearest Magistrate in the Colony of the Cape of Good Hope,
the depositions taken before him of any alleged offence
committed, during which time the supposed offender must
remain in custody until a decision upon the report is made
in the Colony, and returned to Natal.
6th. That no mode of redress is pointed out in the event
of acts of oppression being committed by the said Captain
Gardiner or by his order upon the Inhabitants of this Free
Country, and ruin might be the result of the person so
oppressed.
7th. That the said Capt. Gardiner before his leaving this
1838] CENTRAL GOVERNMENT 151
Country for the avowed purpose of soliciting the British
Government to take possession of, and annex Natal to the
British Empire, has materially injured the interests of the
Inhabitants by advising the King of the Zoolahs to stop the
trade with his people, which fact has been communicated to
them by Dingarne.
That the Inhabitants in thus stating their reasons for thus
protesting against the appointment of Capt. Gardiner as a
Magistrate over them, are not actuated by factious motives,
but do so on the principle that this is not an acknowledged
part of the British Empire, nor has ever been officially taken
possession of by His Britannic Majesty, but is decidedly a free
Country.
Yet they ardently wish that his Majesty’s Government
would recognize it and appoint Magistrates not to hold out
threats and imprison only ; but to protect and encourage
them. Yet although protesting against (: being a free people 🙂
the authority attempted to be set over them in the Commission
of Captain Gardiner : yet they will cheerfully render obedience
to such competent authority, as may have the power as well
to protect as to punish.
(Signed) DANIEL CHAS. TOOLY, ALEXR. BIGGAR, ROBT.
BIGGAR, JOHN CANE, HENRY OGLE, JOHN
STUBBS, CHAS. BLANCKENBERG.
[Encl. in a Desp. of 26 July 1837.]
P.R.O., MS. copy in C.O. 48/193.
No. 98. THE OCCUPATION OF PORT NATAL BY A
BRITISH FORCE.
[4 Dec. 1838.]
[In 1838 Governor Napier sent a small body of troops under a certain
Major Charters to take temporary possession of Port Natal in order to
prevent the emigrant farmers from encroaching on native rights.
Major Charters also held a commission, dated 16 Nov. 1838, as a Magis-
trate under Act 6 & 7 Wm. iv. cap. 57. It was from his letters that
the news of the defence of the wagon camp of the emigrants on 16 Dec.
1838 reached Cape Town. The victory is commemorated annually as
Dingaan’s Day.]
Pursuant to the Orders of His Excellency Sir George Napier,
K.C.B., Governor and Commander-in-Chief of the Colony of
the Cape of Good Hope, I hereby take Military Possession,
in the name and on behalf of Her Britannic Majesty Queen
Victoria, of the Port of Natal and adjacent territory the
boundaries of which territory are now to be described.
A curved line following the . . . l of the bay, every point
1 One word is indistinct in the MS.
152 NATAL [1839
of which shall be two English statute Miles distant from the
High Water mark of the said Bay or Harbour, will define
the boundary of the Military occupation, and I hereby declare
the whole of the territory thus defined to be under Martial
Law, according to the English Articles of war, without pre-
judice however to any of the aboriginal tribes who may at
this date be inhabitants of the territory above described ;
which aboriginal tribes shall not only be suffered to pursue
their quiet occupations, but be directly protected in their
persons and properties, in so far as it shall be in the power
of the Military force at Natal to protect them.
It is clearly to be understood that there is nothing in this
declaration, which shall be in any way construed into an
intention of Her Majesty’s Government to colonize, or keep
permanent possession of this Country, unless it be Her Majesty’s
pleasure so to order.
Be it Known therefore that this military occupation has
taken place in consequence of the orders of His Excellency
the Governor of the Cape of Good Hope, for the purposes set
forth in his Proclamation of the I4th November 1838.
I also make known that it has been the pleasure of His
Excellency the Governor of the Colony of the Cape of Good
Hope for the better protection of the native Tribes to invest
me with a Magisterial authority under the Act of Parliament
of His late Majesty, King William the Fourth, entitled an
Act for the Prevention and Punishment of Offences committed
by His Majesty’s Subjects, within certain Territories, adjacent
to the Colony of the Cape of Good Hope, 13 August 1836.
The above declaration shall bear date from the day Her
Majesty’s troops landed at Port Natal, viz., the 4th of December
1838. ”
(Signed) SAMUEL CHARTERS, Major Commg.
A True Copy.
(Signed) T. SHEPSTONE.
P.R.O., MS. in C.O. 48/199.
THE REPUBLIC IN NATAL.
No. 99. Early Legislation in Natal.
PIETER MAURITZ BURG,
zqth July 1839.
Be it known that at a Meeting of the Council of the people
held on the 27th, 28th, and 29th Instant it was resolved and
determined that :
ist. That after publication hereof all young Men of 15
Years of Age, who shall cause themselves to be enrolled for
1839] CENTRAL GOVERNMENT 153
Militia Services, shall on application be considered to have a
claim to the grant of a Place.
2nd. As soon as a Powder Magazine shall have been
erected, any of the Proprietors of such Powder deposited there-
in, shall be permitted to have three Pounds of that Powder,
and no more, in his house, on pain of Rds. 100.
3rd. Country Field-Cornets will be directed to tax any
damage committed to lands, and a Tariff will be prepared
accordingly.
4th. That at Port Natal, and Under Umlass shall be ap-
pointed Mr. P. J. Joubert as Provisional Landdrost, and Messrs.
Fk. Johs. de Jager, H. Bredenberg, Dirk van Rooyen, and Wm.
Cowie, as his Heemraden.
5th. All unregistered Erven at Pieter Mauritzburg will be
considered to be resumed after the I5th July next, and will be
granted to other Applicants.
6th. No Zoolu shall be allowed to remain among the Bush-
men Kafirs ; if any Zoolu shall be found to sojourn among them,
such Kafirs may be punished with death for so detaining them.
yth. All Licenses except for the Sale of Wine and Brandy
have been fixed at Rds. 40, to be issued Quarterly. Those for
Wine and Brandy, by Retail, at Rds. 150 per Annum shall be
paid, by Wholesale, Rds. 50 per Year.
8th. No Tambotie Timber shall, until further orders, be
allowed to be felled in the neighbourhood of Port Natal ;
that already felled may be carried away upon obtaining a
Licence from the provisional Landdrost, or some person
authorized by him for which Licence shall be paid Rds. 2
for each load. Those persons transgressing this regulation
shall be liable to a fine of Rds. 25.
gth. Sickness preventing business to be carried on properly
at this moment, this shall be considered sufficient for the
present ; when an opportunity offers the necessary notifica-
tions, appointments, and instructions will be sent.
A Summons shall be sent to Ogle to appear here before the
Magistrate.
(Signed) JAS. JOHS. BURGER, Member of the
Council of the People.
P.R.O., MS. copy of translation in C.O. 48/201.
No. 100. MEMORIAL OF THE EMIGRANTS AT PORT
NATAL TO THE CAPE GOVERNOR. [1839.]
[The following memorial was forwarded to the editor of the Cape
Town newspaper, the Zuid Afnkaan, for publication, while it was also
presented to the Governor of the Cape Colony. It bears no date, but
154 NATAL [1839
internal evidence shows that it was very probably drawn up in March
or April 1839.]
To His Excellency Major-General Sir G. NAPIER.
SIR, When we compare the several verbal communica-
tions, as well as the public journals, with your Excellency’s
open invitation by Proclamation, dated Graham’s Town, 2ist
May last; to return to the Colony, we fear that your Excellency,
prejudiced against us by a party, who have incessantly perse-
cuted us with enmity, will not grant us the right of being
judged by a calm consideration, guided by your own personal
principles ; and wishing as much as is in our power to provide
herein, we have this day convened our Representative Assembly
(Volksraad), and, on the proposal of the President, have
resolved to adopt such measures as may be considered neces-
sary for the prevention of any misunderstanding, rupture, and
further alienation.
It is therefore on the full conviction of your Excellency’s
concern for our fate that weventure tobring to your Excellency’s
notice, that our emigration has taken place openly under the
eye of Government ; while even some of us, taking leave of the
Governor, and others of the Lieutenant-Governor, have parted
with their best wishes. We have consequently not emigrated
in secret ; but after the Commandos against the invading
Caffers had been gloriously accomplished, and they had been
compelled to make peace, after our taxes had been paid,
and after having had the public assurance of the Lieutenant-
Governor that there existed no law against a voluntary emi-
gration, which is so much encouraged in other countries, and
to which we have not been actuated or compelled by decep-
tion, nor by bad nor foolish prejudices, as by your Excellency’s
said Proclamation it appears to be supposed. The emigration
did not also take place (as some of our enemies presume)
on account of the emancipation of the slaves ; on the contrary,
a long and sad experience has sufficiently convinced us of the
injury, loss, and dearness of slave labor ; so that neither
slavery nor slave trade will ever be permitted amongst us ;
and should Mr. Gideon Joubert do justice to truth, his report
on the emancipation of the apprentices will show not only
our readiness in complying with the wishes of Government,
but will also state, that precautions have been taken by us,
for those who did not choose to leave their masters, to put them
in the way, should they choose it, to return to the Colony.
When we consider your Excellency’s invitation to return to
the Colony, and the general protection proffered to us, we feel
ourselves obliged not only gratefully to acknowledge your
Excellency’s good will towards us, but we are even confident,
that if our fate depended entirely from the decision and
1839] CENTRAL GOVERNMENT 155
sentiment, as well as of your Excellency’s own principles and
liberal ideas of what is just and what is unjust, our case would
soon be decided ; but as long as the best will is fettered to a
chimerical philanthropy, so generally raging in Europe, we fear
it will be difficult for your Excellency to do anything in our
favor.
The reasons of our emigration are different : some of a
personal nature ; others arose from public causes. Amongst
the first, which are numerous, we will just record one ; namely,
the illegal arrest, without cause, of Mrs. Uys, during the
absence of her husband, who was on the Commando against
the Caffers. Those of a public nature principally consist of
the disgusting Ordinance No. 19, which is so degrading for
us, and the several laws afterwards published, whereby our
slaves have been spoiled, and we ourselves ruined. The
emigration was also greatly influenced by the vagabondizing
of the Hottentots and free blacks, to whom this and also other
offensive acts of drunkenness, cursing, swearing, and pro-
fanation of the Sabbath, was allowed with connivance and
impunity ; add to which the hard treatment which many of
us have undergone after the last Caffer war ; plundered without
any cause, robbed, and our dwellings destroyed by fire ; yea,
even our own cattle, which had been retaken, publicly sold,
numbers having died in the Pounds through neglect, and the
amounts appropriated to purposes contrary to law and equity,
without our receiving any remuneration or indemnification
for our stolen cattle, burned houses, massacred relations, nor
for the enormous expences which we personally incurred for
saddles, horses, equipments, and everything of that nature ;
and finally, a more general dejection was occasioned by the
new regulations and Caffer treaties of the Lieutenant-Governor,
whereby all privileges and protection is secured to the one
side, while we were contemptuously placed on the background,
without any prospect of being able to recover the injuries
which we have suffered, and exposed to daily ravages and
cattle thefts. For all these reasons, and seeing before us our
fast-approaching ruin and total destruction, we resolved to
emigrate, with extreme anxiety, but with a heart fully trusting
in the goodness and protection of the Lord.
Proceeding at different times in small divisions, we had
resolved to direct our steps towards Port Natal, that country
being described by some amongst us, who had visited it, as
very fertile and salubrious ; and though we then had not yet
enacted any laws amongst us, we have followed up the gener-
ally approved principle, to treat the Caffers, through whose
country we passed, and other tribes, with kindness and
generosity, and strictly and inviolably to respect their right
156 NATAL [1839
of property and independence, whereby we have passed
several tribes without being obstructed, and in amity, until in
the month of June 1836 we were attacked in a traitorous
manner by the chief Maselikatse, while we were then still at
a distance of about 40 hours on horseback from his territory,
and whereby several families were barbarously butcherecl,
and deprived of all their cattle, etc., which forced us to com-
mence hostilities against said chief, and to endeavour to retake
the cattle which they had stolen from us ; for which purpose
we went out against him at two different times, and have for
the greatest part obtained our views. This chief having after-
wards been expelled, Mr. Piet Retief, approaching the bound-
aries of the Zoolas. made proposals to the chief Dingaan for
the purchase of a piece of ground on the southern part of the
River Togola (which land was almost uninhabited) ; but after
all arrangements were brought to a point of agreement on the
most amicable and best terms, he was most barbarously
murdered, together with 60 of his companions, children, and
friends ; which was followed up a few days after by the massacre
of 370 others, who, under the idea of peace and friendship,
unguarded also, became the victims of his love for murder,
and were deprived of almost all their cattle. But as your
Excellency is already fully acquainted not only with the
particulars of the case, but also of that of our hero and friend,
Piet Uys, we will, without further thinking of this melancholy
history, proceed to acquaint your Excellency with the con-
tinuation of the emigration, of which three small divisions
have arrived at Port Natal at different times, after a long and
tedious journey of more than two years. One part has
established itself at the head of the Bay, at the place called
” Congela,” another part at the River ” Umgenie,” and the third
division also near to the Bay, at the River ” Omlaas ” ; while
three other and stronger divisions form a line to the River
Togola, at a distance of an interval of from 10 to 20 hours on
horseback nearer to Dingaan’s residence.
We trust your Excellency will not only pardon this circum-
scription, but will perceive thereby that we act openly, and
do not intend to conceal anything ; on the contrary, we shall
continue to place everything under the eye of the world, in
order thereby to give an opportunity to every one truly and
fairly to judge of our conduct.
On our arrival in the vicinity of the Bay, we found the
surrounding maize plantations totally destroyed by the
Zoolas, and the so-called tame Caffers, residing there, deprived
of all their cattle, whereby want soon became perceptible
amongst them, of which thousands no doubt would have
become the victims, if the arrival of the Emigrants, whom they
1839] CENTRAL GOVERNMENT 157
assisted in herding their cattle, etc., had not rescued them from
general famine, some of them having already died from want
of food. While now, their new harvest, consisting of maize
plantations, which can hardly be overlooked (for the extension
of which they were encouraged by us), holds out to them a
good and abundant prospect, under the blessing of God, by
whom alone the destructive hand of the tyrant ” Dingaan ”
can only be repelled.
One of our first measures on our arrival here, was, to give
notice to the chief ” Faku ” of our arrival, through the missionary
Jenkins (to whom, in respect of several other instances, we
were under great feeling of gratitude), and to make a proposition
to him, ” Faku,” of peace and amity, the favourable result of
which your Excellency will learn from the reply of the said
Mr. Jenkins (handed by us to Mr. Joubert).
We shall always feel happy in cherishing friendship and
peace with all the tribes with whom we may meet, and could
we be fortunate enough to enjoy the same with that country
where we have left more than one dearly beloved connection,
we would, burying in oblivion the past sufferings, consider the
result fortunate, and for which purpose, no sacrifice on our
side will be considered too great.
As to the so-called tame Caffers here, already mentioned
we find, that with the exception of their natural propensity for
thieving, which is particularly limited to eatables, as well as
old iron, beads, and other trifles, we have no particular reason
for being dissatisfied with them ; on the contrary, their
conduct shows a certain degree of attachment to their master,
to whom they however bind themselves but for a short time.
The women generally are more industrious, and better fit for
the cultivation of the land, which is also performed by them
and their children.
As we fear to trespass too much on the patience of your
Excellency, we shall conclude, trusting that this open and
candid statement may not have diminished your Excellency’s
good inclination towards us, but on the contrary, that giving
satisfactory proofs of our peaceable intentions and views, we
may thereby have increased your Excellency’s concern in our
fate. On our part, we can assure your Excellency, that the
universal sentiment amongst us, is that of high respect and
affection for your Excellency’s person, as well as for the
Government ; and that nothing will be more pleasing to us
than the receipt of equitable proposals from the hands of your
Excellency concerning a privileged trade with the Colony.
And we declare also, that all further measures proposed by
your Excellency, having in view peace and amity, will be
gratefully accepted by us ; but at the same time if even here
158 NATAL [1840
we are to be persecuted and disturbed by undeserved hatred
and persecution, we shall be under the necessity, (having im-
measurable fields before us,) of seeking elsewhere for that rest
and peace which is refused us in such an ungenerous and
iniquitous manner.
We have the honor to be with the highest respect,
SIR,
Your Excellency’s most obedient, humble Servants.
P.R.O., the Zuid Afrikaan for 7 June 1839,
bound in C.O. 48/205.
EMIGRANTS’ DEMAND FOR INDEPENDENCE.
[On 24th Dec. 1839, the British force at Port Natal, no of all ranks,
sailed for Cape Town. Five days previously the commandant, Captain
Jervis, had written to the emigrants then stationed near the Bay, at
Congella Camp, and informed them of the intended evacuation. He
wished them happiness and success in their new surroundings, but
again pointed out that they could not throw off their allegiance or cease
to be regarded as subjects of the Queen of England. 1 Then in June
1840 Lord John Russell sent a despatch to Cape Town instructing the
Governor to reoccupy Port Natal if such a step seemed desirable and
possible. Napier replied 2 that a large body of troops would be needed
for the enterprise, and that he could not spare those troops at the time
in view of the restless state of the frontier burghers, whom the Kaffirs
had again begun to plunder. He earnestly requested leave to com-
municate with the emigrants, to ascertain their grievances, and to
attempt to settle matters peaceably, believing, as he said, that this
would be by far the easiest and ultimately the wisest course to pursue.
Civil war would lead to increased ill-will towards the British Govern-
ment and a fresh migration into the interior.]
No. 101. Request of Emigrants in Natal to be Recognised a
Free and Independent People.
PIETER MAURITZ BURG, PORT NATAL,
^th September 1840.
[vTo His Excellency the GOVERNOR OF THE CAPE OF GOOD
HOPE, etc. etc. etc.
YOUR EXCELLENCY, By the blessing of God we have
perfectly succeeded in establishing, with our numerously
surrounding savage enemies, not only an advantageous, but,
for the so long oppressed people, a lasting peace, which presents
us with the cheering prospect of permanent prosperity. This
prospect, though, is somewhat darkened by the conviction
that between us and our always beloved Mother Country there
does not exist that friendly sympathy in our welfare which we
would fain wish to see strongly and lastingly established.
1 P.R.O., MSS. in C.O. 48/207.
2 29 Sept. 1840 ; MS. in C.O. 48/208.
CENTRAL GOVERNMENT 159
This general wish has frequently on former occasions been
under the consideration of the Volks Raad (Council of the
People), and has presently, to the exclusion of all other matters,
been more particularly under their discussion which has
originated the following resolutions, namely :
To submit respectfully to Your Excellency, as the honoured
Representative of Her Majesty the Queen of England, that
it may graciously please Her Majesty to acknowledge and
declare us a free and independent people (a right so dearly
purchased with our blood), and to concede to us all those
privileges which constitute the boast and greatness of the
Nation which has the happiness to live under her noble Govern-
ment ; and, to attain that object, the ” Council of the People ”
have resolved that (should Your Excellency desire it) Two
Commissioners shall be sent from hence to the Colony of the
Cape of Good Hope as our representatives, at such time and
to such place as Your Excellency shall appoint, both which
Commissioners shall be properly and fully empowered to
concert such friendly arrangements as may be considered
most compatible with the honour of Her Majesty and best for
our permanent good.
If, for the more speedy arrangement of this matter, Your
Excellency should prefer a negotiation to take place in writing,
the ” Council of the People ” will fully concur in it.
We have the honour to subscribe ourselves, with the greatest
respect,
In the name and on behalf of the ” Council of the People,”
(Signed) L. BADENHORST, President of the Council.
J. J. BURGER, Secretary.
MS. copy of translation in C.O. 48/208.
No. 102. ARTICLES OF AGREEMENT AND ALLIANCE
PROPOSED.
PETER MARITZ BURG, NATAL,
i^th January 1841.
To His Excellency Major-General Sir GEORGE NAPIER, K.C.B.,
Governor and Commander-in-Chief, etc. etc. etc. of
the Colony of the Cape of Good Hope.
RIGHT HONORABLE SIR,
[After making some preliminary remarks, the letter pro-
ceeds :] We are willing and desirous of entering into a per-
petual Alliance with the Government of Her Majesty the
Queen of England on the following principles :
ist. That the Honored Government of Her Majesty the
Queen of England would be pleased to acknowledge and
160 NATAL [1841
declare our Settlement here as a free and independent State
under the name of ” The Republic of Port Natal and adjoin-
ing Countries ” the boundaries whereof can be hereafter
defined.
2nd. That Her Majesty’s Government declare itself willing
to treat with the said Republic in the relation of an Ally.
3rd. That the said Republic reciprocally declares itself to
stand in the closest alliance with the British Government.
4th. That Her Majesty’s Government shall be at liberty,
in case of any hostile undertaking against this Republic by
sea, by any other Power whatever to interpose itself either in a
friendly manner or to repel the same by force.
5th. That in case of War between the British Government
and any other Power this Republic shall be viewed as Neutral,
and all private commercial Vessels lying at anchor in the
ports of the Republic shall be left unmolested.
6th. That the British Government shall have the right
to place here an Ambassador or Representative Agent.
yth. That the trade of British Merchandize shall not be
made subject to higher imposts than those of other people or
Nations, but the same as far as practicable shall be regulated
according to the Duties on British Goods as levied in its own
Colonies, with the exception of Wines, Strong Liquors, and
other Articles prejudicial to this Republic the unnecessary
import of which it would be advisable to restrain by higher
duties. In consideration of which all articles of trade of this
Republic should be received in all British Possessions and not
be subject to higher duties than those of British Settlements.
8th. That this Republic promises never to make any Hostile
movement against any of the Natives or Inland tribes who
may reside between the Boundaries of the said Republic and
that of the Colony of the Cape of Good Hope without first
giving Notice thereof to the Representative of that Govern-
ment here or to the Governor for the time being of the Colony
aforesaid, as also the cause which may have given rise thereto
with exception however of such occasions wherein it will be
our Duty to take immediate steps against the Enemy either
in opposing or repelling their inroads or contemplated attacks
upon us, or upon any of the Natives on our Frontier and in
Alliance with us, or in case of Robbery to pursue immediately
the Robbers and overtake them, and in all such other cases
wherein delay or neglect would be dangerous and prejudicial
to us.
gth. That we further bind ourselves not to extend our
Boundary Line farther, to the detriment or disadvantage of
any of the surrounding Tribes, nor to make any hostile move-
ment upon them unless such tribe by any preceding hostile
1841] CENTRAL GOVERNMENT 161
attack shall have given us occasion thereto, so that we for the
maintenance of our Rights or for the security of our property
shall be compelled to take up Arms against such tribe.
loth. That the Republic promises to give every encourage-
ment for the spreading of the Gospel amongst and for the
civilization of the Heathen Tribes which surround us, or are
residing under our Government.
nth. That this Republic promises not to give any aid or
assistance in any manner to the declared or public Enemies
of the British Government in any hostile undertaking against
the same, nor to permit such known Enemies’ Vessels to enter
our ports, or to provision them, but on the contrary of war
with the Colony by Kafirs or other tribes residing between us
and the Colony, should the Governor of the Colony be desirous
either by Sea to Land, or over Land to march an armed force
thro’ our Territory, to assist the same with Provisions, means
of Transport, etc., and further as far as possible to accomodate
them.
12th. That this Republic undertake and bind themselves
never to enter into any Slave trade, or to encourage, or to
assist the same, or to permit any Vessel or Craft of that Trade
to enter our ports or to furnish them with any refreshment.
I3th. That the British Subjects residing in this Republic
shall be equally protected in their persons and property, and
shall not be subject to higher Taxes or Duties than the Burghers
of this Republic are.
We take the liberty to add further that as Your Ex-
cellency will perceive by the foregoing that we are very
desirous to be always on the best and friendly terms with the
British Government, and if possible to live in Peace with the
surrounding Nations, and only wishing to protect and to
govern ourselves in our lawfully acquired Territory, without
detriment either to your Government, or the Nations sur-
rounding us if they are willing to live in Peace with us. Your
Excellency will have no objection to recommend our applica-
tion to Her Majesty’s Government, and we can assure Your
Excellency that we on our side will forget all we have suffered,
and by our future conduct shew that we are as worthy to be
received as Allies, as we before shewed as dutiful and obedient
Subjects, and notwithstanding the continual wrong imputa-
tions, ungrounded and completely destitute of truth, which
from certain channels have been cast upon us and repeatedly
forced upon Her Majesty’s Government in England, we do not
hesitate to say, that we hope to convince the World that so far
from tending to serve as a destroyer or corrupter of the Heathen
Nations in this Region, we are in the hands of God the means
of preventing Robbery, Murder, and Violence, and even tend to
ii
162 NATAL [1841
the greater Security of the Cape Colony, and to the further-
ance of Christian Civilization amongst many thousands “who
up to this time have been in a state of benighted darkness;
and which many of the Heathen Tribes who are living under
our protection and others with whom we have concluded
peace will readily acknowledge.
We have the Honour to remain with the Highest respect
Your Excellency’s Most Obedient and Humble
Servants,
(Signed) K. P. LANDMAN, President; C. v. BUCHNER,
L. BADENHORST, L. F. MEYER, J. J. UYS,
J. P. MOOLMAN, A. W. J. PRETORIUS,
JACS. JOHS. BURGER, G. J. SCHEEPERS,
J. C. KLOPPER, J. C. POTGIETER, R. J.
v. RENSBURG, G. R. VAN ROOYEN.
[Napier was awaiting instructions from England as to the
course to be adopted with regard to Natal, and therefore did not
reply to this request.]
P.R.O., MS. copy of translation in C.O. 48/211.
No. 103. BURGHERSHIP LAW AND THE POSSESSION
OF FIXED PROPERTY.
Approved and resolved at a Meeting of the Council of the
People at Pietermaritzburg, on the I4th day of the month
of April, in the year of our Lord, 1841.
WHEREAS it has been deemed necessary, and the Council
has been repeatedly urged therto by the Burghers, to provide
and enact, by a fixed Law or Regulation, on the subject of
the Right of Burghership, as well as the right of possessing
Lands or fixed Property, and the granting of the necessary
Title Deeds : So it is, that the Council, after mature con-
sideration, have determined, ordained, and enacted :
1. That all the South African Dutch Emigrants, at present
residing within the limits of this Republic, or who may still
come to reside therein before the 1st of January next, and
who shall be allowed to take the Oath of Burghership, and
all Strangers already residing within the Limits of this Republic,
and have been already sworn in, as Burghers, together with
their children, when they shall grow up and come to maturity,
shall be, and are considered to be, real Burghers of this Country
and Republic.
2. That all Dutch South Africans, born in the Colony of
the Cape of Good Hope, and who may come to reside within
this Country, after the 3ist December next, and desire to
become Burghers of this Country and Republic, shall make
1841] CENTRAL GOVERNMENT 163
application for that purpose by Petition to the Council of the
People ; and on being admitted to that privilege, shall, on
becoming a proprietor of fixed property, receive, at the transfer,
a certificate that he is entitled to possess fixed property, for
which Certificate he shall pay 12 Rixdollars.
3. That all Strangers or Foreigners who may come here
after this date, after they shall have resided within the limits
of this Country for the space of twelve successive months, and
on obtaining a Certificate from the Landdrost of the District,
or the Field-Cornet and two respectable Inhabitants of the
Ward in which they resided, that they have conducted them-
selves peaceably, submissive, honest, faithful, and sober, may
be accepted and sworn in as Burghers of this Country by the
Council, or the Officer for the time being thereto authorized
by the Council, on payment of a sum of Rds. 50, or such sum
as shall hereafter be fixed by the Council.
4. That no person else but a Burgher of this Republic,
shall be possessor of Lands, Houses, or fixed property.
5. Any person leaving the Country for the space of twelve
months, or more, without special permission of the Council,
shall no longer be considered a Burgher; and having fixed
property here, the same shall be publicly sold for his or her
account.
6. Every Burgher (male or female) shall be obliged to
pay annually into the Public Treasury, for the right of pos-
session of fixed property, and for the protection of the Laws
of such Property, a sum of Twelve Rixdollars, and no more,
for each place, in extent 1000 morgen or above ; but not ex-
ceeding 3000 morgen ; for a place of less extent than 1000
morgen, (on the Council approving thereof,) a smaller amount
shall be payable ; but being more than 3000, and under 4000,
a proportionate advance shall be made ; and if above 4000
morgen, shall be considered as two places.
7. The Council may draw up and issue Title Deeds, and
appoint a Commission to subscribe the same.
8. All special Servitudes on Lands shall be specified in
the Title Deeds ; but all Lands shall be subject to the follow-
ing general Servitude, although the same be not specified in
the Title Deed.
9. [Roads running across any land are to remain open for
traffic, for driving sheep, goats, and cattle, and for outspans.]
10. When any place or land may be required for public
use, the owner shall be obliged to sell the same, but not for less
than its full value in the manner of arbitration, to be fixe^l by
impartial Landowners sworn in for that purpose.
11. [Gold and silver mines and large forests shall be re-
served for the benefit of the public, unless the Legislature shall
164 NATAL [1841
grant the same to the owner of the property concerned by
annual licence. Punishments for setting fire to the veld or to
a forest.]
12. No confiscation or forfeiture of any Land for the
benefit of Government shall ever take place for any mis-
demeanour or trespass of the Law whatsoever ; but, whenever
any person shall be convicted by a Jury of twelve of his fellow-
citizens, of the crime of treason, or armed insurrection against
the lawful Authorities, and shall in consequence thereof be
condemned to transportation from the Country, he shall be
considered as having forfeited his right of burghership, and
his Landed Property shall then be sold by legal authority, for
the benefit of himself, his Creditors, or Heirs.
13. All Title Deeds, issued for any place in freehold, shall
be considered as being granted by authority of this Law, and
subject to the conditions and stipulations herein contained,
until other provision shall be made in that respect by the
Council of the People or the Legislative Council.
14. In this Law or Regulation none the least alteration,
addition, or deduction shall be made (except only in such
Articles as to which authority is granted) without the consent
of at least two-thirds of the number of all the chosen Members
of the Volks Raad, or Legislative Council, and after discussion
in two succeeding Meetings.
Duly subscribed by the Volks Raad
A true Copy.
J. BODENSTEIN, Secretary of the Council.
P.R.O., MS. in C.O. 48/235.
BRITISH AUTHORITY OVER EMIGRANTS.
No. 104. Proclamation. By His Excellency Major-General Sir
GEORGE THOMAS NAPIER, K.C.B. [etc.]. [2 Dec. 1841.]
[In August 1841 Lord John Russell instructed Napier to re-occupy
Port Natal. The proclamation given here was issued and a body of
troops was sent. Fighting resulted between the troops and the Re-
publicans, and till 1843 matters were in a very unsettled state.]
WHEREAS certain persons, being Subjects, and chiefly
natural-born Subjects, of Her Majesty, have heretofore at
various times emigrated from this Colony, and have taken
possession of Port Natal and certain Territories adjacent or
appertaining thereto :
And whereas I have lately received a Letter, addressed to
me, dated Pieter Mauritzburg, the nth October 1841, signed
by T- Prinsloo, as President, and Jacs. Johannes Burger, as
Secretary, of the Council of Emigrant Farmers, now residing
at Port Natal, and in the Territory adjacent thereto, in which
1841] CENTRAL GOVERNMENT 165
they inform me, in the name and by the desire of the said
Council, as they allege, that they claim to be, and to be recog-
nized as, an Independent State or People, and declare that they
are Dutch South Africans by birth, and have ceased to be
British Subjects, and refuse to be recognized or treated as such ;
and whereas I have been informed that the said Council, at
a Meeting held on the 2nd of August 1841, and subsequent
days, passed a Resolution, by which they resolve, that all
Kafirs inhabiting Port Natal and the Territory thereunto
appertaining, as well as those Kafirs who were established at
Port Natal long previous to its occupation by the Emigrant
Farmers, as others the Subjects of Chiefs at peace with Her
Majesty, and living at peace with all Her Majesty’s Subjects,
shall be removed, without their consent, from Port Natal
and the Territory thereunto appertaining into the Country
lying between the Mouth of the Umtafoena and that of the
Umzimvoobo, which Country forms part of the Territories
belonging to Faku, a Chief at peace with Her Majesty, without
having obtained the consent of the said Faku, from which
most unjust and illegal proceeding there is reason to apprehend
that warfare and bloodshed will be occasioned ; and whereas
I am desirous to prevent any of Her Majesty’s Subjects from
being through ignorance misled fcy the evil disposed and
mischievous or misguided Persons who have written or
authorized the writing and forwarding to me of the said Letter,
dated the nth of October 1841, and am determined to prevent,
to the utmost of my power, the possibility of the occurrence of
warfare and bloodshed within any of the said Territories :
I have therefore deemed it expedient and necessary to
declare, as I do hereby proclaim and declare, that the said
Emigrants have no right or claim to be recognized as an In-
dependent State or People ; that Her Majesty will not re-
cognize them as such, and will not permit or suffer any portion
of her Subjects to form themselves into an Independent State
or People within any of the said Territories ; and that, in
obedience to the Orders of my Sovereign, I shall resume the
Military Occupation of the same, by sending thither, without
delay, a Detachment of Her Majesty’s Forces. And I hereby
warn all British-born Subjects, and particularly those who,
after the Eighteenth Day of January 1806, have been born
within this Colony, of Parents who, at the time of their birth,
by reason of their permanent residence in this Colony, or other-
wise, owed Allegiance to, and were Subjects of, the British
Crown, that they cannot, by their removal from this Colony
to any other place whatsoever, divest themselves of the
allegiance which they owe, by reason of their birth, to the
British Crown, or of the character of British Subjects, and not-
166 NATAL [1842
withstanding any such removal, must and will still be con-
sidered, and are liable to be treated as, British Subjects :
and I hereby warn all British Subjects, whether by birth or
otherwise, against the consequences of in any wise resisting
or opposing Her Majesty’s Forces, or the due exercise of Her
Majesty’s rightful authority, and that they and all others who
shall engage in any seditious practices, or shew any disaffection
to Her Majesty, will forfeit all claim, as well for their Families
as themselves, to any favourable consideration of their claims
to any Lands now possessed by them, in any settlement or
arrangement which Her Majesty may deem it right and fitting
to make touching and concerning the same.
And I further warn all Persons, not being British Subjects,
and not acting under the commission or authority of some
established and recognized State or Potentate, who shall
within any of the Territories hereinbefore mentioned, be in
Arms for the purpose of attacking or forcibly resisting or op-
posing Her Majesty’s Forces, or of attacking the Subjects of
any Native Chief at peace with, or under the protection of,
Her Majesty, that they will thereby contravene the Law of
Nations, place themselves out of the protection of the Law,
and render themselves liable to be dealt with as the interests
of the Crown may require and circumstances may render
advisable.
GOD SAVE THE QUEEN.
P.R.O., C.O. 48/214.
QUALIFICATION OF VOLKSRAAD MEMBERS.
No. 105. Resolution of the Volksraad, Feb. 1842.
21. It appears to the Council that at a public meeting
held on the 3rd Instant a resolution was proposed and unani-
mously adopted that this Council be requested to order that
in future every member of Council shall declare upon Solemn
Oath that he has never since his residence in this country either
by word, deed, or writing intimated a wish or proposed to any
Official Authority or private person beyond the limits of our
jurisdiction, that any Foreign or other Power should take pos-
session or assume the Government of this Country or destroy
the independence of this Republic : and that he shall further
swear never to do so directly or indirectly except in the meeting
of Council only in a public manner.
* * *
A free translation.
(Signed) W. TENNANT.
P.R.O., C.O. 48/223.
1842] CENTRAL GOVERNMENT 167
No. 106. EMIGRANT GRIEVANCES.
To His Excellency Major-General Sir G. T. NAPIER, Governor
and Commander-in-Chief of the Colony of the Cape of
Good Hope.
PIETER MARITZ BURGH, NATAL,
21 February 1842.
SIR, We the undersigned, President and Members of the
Volksraad, assembled in our Council at this place, have deemed
it proper to inform Your Excellency that we have received a
certain Proclamation issued by Your Excellency dated the 2nd
December 1841, in which it is declared, that Your Excellency
has thought proper in pursuance of instructions received by
you to take military possession of our place, that we are British
Subjects and cannot be recognized by Her Majesty the Queen
of England as an independent people, etc. etc.
Since then the friendly negotiations which we have com-
menced with Your Excellency and the proposals which we have
made with the view of concluding a permanent peace and
alliance with the British Government if only left to the Govern-
ment of ourselves (a privilege which has not even been refused
to the Griquas living upon the borders of your Colony though
that people are nothing more than Emigrants from the Colony
like ourselves) are now made use of as a reason for entailing
the most fearful consequences upon us, we have, for the purpose
of well ascertaining the feeling of our fellow- Emigrants, caused
the said Proclamation to be distributed amongst them, and
invited them to discuss the subject freely by means of a Public
Meeting, and to acquaint us with the result, and we can now
inform Your Excellency that it is the general feeling of our
fellow-Emigrants, and that they have requested us to declare,
as we hereby do, that we consider your said Proclamation as
most [unjust towards us, and calculated, if carried into effect,
to occasion the very thing which it is stated to be its principal
object to prevent, namely, wars and bloodshed; and as it may
probably be the last communication of this nature which
we may have an opportunity to make to Your Excellency, we
deem it further necessary to enter upon the subject more
in detail. We wish to be understood beforehand that it is not
our object to give offence, or offer reproach, or to give cause for
any hostile acts, since it is our sincere wish and desire to pre-
serve peace with all men, and that nothing will induce us to
take up weapons to shed man’s blood except the firm conviction
alone that we cannot avoid it, or when the protection of our
property (obtained hardly and dearly as we conceive) or of
our own existence required it, or when we see that force and not
Justice is exercised towards us. We know that there lives a
168 NATAL [1842
God who governs Heaven and Earth and that He is mighty
and willing to protect the wronged, though weak, against the
Oppressors, and we trust in Him and the Justice of our cause,
and should it be His will that total destruction be brought
upon us, our wives and children and all that we possess, we
shall be resigned and acknowledge that we have deserved it
at His hands, but not from man. We know the power of Great
Britain and it is nowise our purpose to dare that power, but
we cannot at the same time permit that force in place of Justice
should triumph over us without exerting all our endeavors
to oppose such force. We do not accuse the British Govern-
ment to be so disposed, but experience has taught us that
mistaken and groundless instructions (as is now again appar-
ently the case with us) emanating from a far distant Country
have but too often originated measures which were unjust
and oppressive. We deny also most positively that we are
animated by a feeling of hatred against the English Nation,
every person on earth is naturally more partial to his own
than to any other Nation, but as Christians we have learned
to love all men ; and, although we South African Boers have
often been regarded by Englishmen with arrogance and con-
tempt, let the many Englishmen (among whom we include
the Scotch also) with whom we have been personally acquainted
in our native Country, and amongst whom we have also had
Ministers whom we treated with every respect, bear witness !
let the Officers and Soldiers with whom we have served in arms
bear witness ! let our late Governor, Judges, and local Authori-
ties, bear witness ! and let the respectable Englishmen them-
selves who at present live here in security amongst us, and have
intercourse with us, bear witness, whether any such feeling of
hatred against the English is fostered in our bosoms ! At the
same time we will not deny that the laws enacted and pro-
mulgated in the Colony by the English Government from time
to time respecting us, were the only cause for which we left
our Country and kindred and betook ourselves as it were to the
wilds of the desert to be free of the rule of that Government.
To instance some cases, who was it that forced upon us
the increasing evils of Slavery, that secured to us a right
of property in it ? Was it not the same Government who
afterwards deprived us of it, and that in a manner which
gave us not the least voice as to the best and most fitting
means of effecting it ? Who was it that promised us full com-
pensation for our Slaves ? Was it not the same Government
that put us off with a third of the real value of our property,
and then left us a prey to boot to avaricious and money-
seeking dealers who have been enriched at the expense of our
purses ? Who was it that employed us without remuneration
1842] CENTRAL GOVERNMENT 169
and at our own expense in the defence of the borders of the
Colony against the enemy and the hostile or predatory Kaffirs ?
Was it not the same Government that afterwards denied us all
claim to compensation, erroneously stating as a reason that by
our plundering of the Kaffirs we had justly drawn down their
vengeance upon us ? that deprived us of the best Governor
we ever had because, like a conscientious man, he defended
the wronged Cape Colonists and sought their real security
and protection by the punishment of their destructive enemies ?
that afterwards sent us speculative politicians, bound hand and
foot, whose border policy constantly exposed us to be robbed
and menaced by the Kaffirs with impunity, and that too at a
heavy expense to the Country to be paid out of the purse of
the ruined Boer ? That same Government that laid the Country
open for wandering vagabonds who lead a wild and idle life and
live upon the flocks and other property of the already suffi-
ciently oppressed Boer, by which the Boer was deprived of
laborers, or, in case he had any, of all necessary authority
over them, (and under which the Colonists still suffer), lost all
heart, saw his repeated remonstrances and petitions un-
answered or unnoticed, and had the darkest prospects. All
these evils we ascribe to this single cause, the want, namely,
of a representative Government which was refused us by the
Executive Government of that very Nation who consider
that privilege as one of the most sacred of their Civil rights,
and for which every true Briton would lay down his life.
And what did we do under all this oppression ? Did we
take up Arms, demanding our rights, as was recently done in
Canada ? No, we gave the coat also to him who had taken
the mantle from us : We parted with our fixed property at
a ridiculous price : We openly told the Government that we
should leave our Country and their jurisdiction. It was per-
mitted us, at least not prohibited, we were even surprised to
hear a most reasonable and just declaration made by the
Lieutenant-Governor that it is an indisputable right that a
person who is dissatisfied with the ru^e of his Government is
free to leave it. Immediately after our departure we declared
our independence ; we established a Government of our own,
prosecuted wars that came upon us unexpectedly and made
peace, took possession of uninhabited tracts of country which
we acquired by friendly treaties with the Heathen tribes as
well as which we had to purchase with our blood and treasure.
Meanwhile what did the Colonial Government during the
course of these events ? did it inform us that we could not
alienate our allegiance as Subjects wherever we might be, or
did it offer us any assistance when we were in need and ex-
pected momentarily to be destroyed by the savage and blood-
170 NATAL [1842
thirsty heathens, when more than Six hundred of our number
had already been most treacherously murdered innocent, or
did it remain an indifferent Spectator of the misery of its
pretended Subjects whilst total destruction threatened them ?
But, what is worse, were not their Murderers supported and
assisted, when they (the Emigrants) appeared to have any
chance of obtaining a victory, by prohibiting the export to
them of all arms and ammunition, and even by threats of
taking Military possession, as also by confiscation of their own
weapons and ammunition, and this indeed under the pretence
of preventing from a feeling of philanthropy further bloodshed
when no fear existed for the shedding of Christian blood, but
when vengeance was about to be wreaked upon those whose
hands were still stained with it ? further, by prohibiting traffic,
in consequence of which many of the Emigrants died during
the visitation of the infectious disease of the measles from
want of necessaries or food proper or requisite at such a time ?
And has not the same Government already treated us as
foreigners even with respect to our trade by sea, and how is it
possible that, with all such reasons on our side, Your Excellency
can expect us to consider ourselves as transgressors or rebels
against our lawful Government ? We declare we cannot se
how the British Government under the aforesaid circumstances
can, with any the least shadow of reason or justice, claim us
as Subjects, unless it be from other political motives, or
jealousy, that excuses are sought with some show of justice
again to place the despised and neglected Emigrants under
the yoke. We strongly doubt, in case we had emigrated into
the interior of Africa or to Delagoa Bay, whether we should
there also have been molested ; yet we still cherish the hope,
that, when the present Government of Her Majesty the Queen
of England and the British Nation shall have been made fully
and truly acquainted with the whole state of our case, other
means will be found to arrange matters with mutual satisfaction
than by the Sword, or by blood ; and we beseech Your Excel-
lency therefore to take the subject into further consideration
and to adopt no measures by which we shall be driven to steps,
which, however much against our wish, or painful they may be
to us, may yet be unavoidable for our lives and our security,
and which may devolve a responsibility upon Your Excellency
which sooner or later it may be difficult to account for.
With respect to the reason assigned in your Proclamation
for which military possession is to be taken, our resolutions,
namely, of the 2nd August 1841, respecting the Kafirs here, we
wish merely to observe that, as usually happens, Your Excel-
lency’s informant is either ignorant himself of the real state
of the case, or has purposely concealed it from you, and we
1842] CENTRAL GOVERNMENT 171
are able to convince every true philanthropist that our views
in making arrangements respecting the removal of the Kafirs
(the old inhabitants as well as the later Settlers) both by the
resolutions already referred to, as well as another since adopted
upon the same subject, are furnished in a true love of humanity,
in as much as we have thereby sought to obviate or to prevent
the probability of hostility and bloodshed, which would
otherwise inevitably result if we permitted Zoolahs and other
Natives to leave their former abodes and settle themselves
in thousands amongst us, as is at present the case, first to be
protected by us against their enemies, and, when they shall
have strengthened themselves, to be placed in the best oppor-
tunity possible to root us out solely to obtain possession of our
cattle ; or, their design being detected, they would compel us
to attack and expel them without delay. Our measures are
thus framed to provide in time, as far as practicable, against
the probability of such occurrences, and not to allow the evil
to encrease too much or first to become irremediable and
then show a disposition to be active. It would be too diffuse
to notice here all we have to say upon this head ; we proceed
therefore to point out that if Faku already had a claim to the
tract of land mentioned in Your Excellency’s Proclamation he
alone is to blame if we made use of that land ; in the first
place we have proof that in the year 1834 ne na< ^ already
declared that he had no claim to the land, and as far as we
have been able to ascertain never occupied the same except
with some small Kraals of Spies. Besides, we caused the
Contract entered into by the late Mr. Retief with Dingaan
to be published as well as our Proclamation in which the
Omzimvoobo was appointed as our boundary. Furthermore
we entered into a friendly understanding with Faku himself
and obtained from and gave him an assurance of peace, and
even of protection, so that there was nothing to prevent him
from protesting against our disposal of any portion of his
territory, in addition to which he freely acknowledged that
the land lawfully belonged to Chaka and afterwards to Dingaan
as far as the Omzimvoobo, and that he acknowledged our
claim thereto to be founded in justice, by the Contract herein
before mentioned and by the victory gained by us over that
Nation. He went further and said that Chaka and Dingaan
had taken the country even to beyond the Umzimvoobo, and
that he considered himself and his people to be there by our
permission. May we not then ask where there is a Colony or
conquered possession of Great Britain, or any other Power to
which a stronger claim or right can be asserted ? We are con-
vinced that there is not, yet if Faku can prove that neither
Chaka nor Dingaan ever had a claim to the land in question
172 NATAL [1842
and that that waste and uninhabited tract of country has
always been in his possession, who will convince us that not-
withstanding this we insisted upon taking possession of it, as
upon that ground to give a show of reason to the taking
Military possession of our harbour and territory ?
We will acknowledge also that, as regards ourselves, we
cannot possibly understand the right of Subjects by birth or
otherwise as set forth by Your Excellency in your Proclamation.
But setting aside this question, we are bound to declare our
conviction that we cannot be secure or exist in this Country
should we place ourselves again under the jurisdiction of a
Colonial Government as before ; the Country, which Your
Excellency already prematurely disposes of, threatening to
take the same from us and our children would then have no
value for us. What prospects have we of enjoying better
protection than the Border Colonists enjoy, and on account
of which many of us were obliged to leave that land? what
prospects have we of enjoying even that protection, since Your
Excellency’s treatment of us gives us more than reason to
suspect that your anxiety and care exist for the uncivilized
people alone, and that it will create no great concern should
we with our wives and children and servants be led by them
like sheep to the slaughter ? yes ! that the philanthropists of
the day will find false accusations enough to make the world
believe that we richly deserved it and that it is our own
fault !
Fate therefore seems to drive us to one of two alternatives,
namely, to bend ourselves like yoke-bearing beasts to carry
willingly the burden which may be imposed on us, till finding
the same too heavy, we commence emigrating anew as before
and leave everything we have in the world behind us here ;
or, in defence of our rights, our possessions, yes, of our existence
itself, to shoulder our Guns and to combat with our Oppressors
and by our fall or failure to end our earthly troubles. W T e
leave it to Your Excellency’s own judgment, and to the judg-
ment of every sincere Englishman, which is the preferable
alternative. Let it be no longer thought that we seek to
mislead, or that we are ourselves misled. Experience has
taught us all some dear lessons, and whatever our political
differences may be respecting our Civil administration Your
Excellency will find out that there exists but little difference
respecting this one point. And when we shall all have been
subjugated at the expenditure of much blood and money, the
flame will merely have been suppressed and smothered to
burst forth with greater fury upon the day of retribution. It
is in Your Excellency’s power to prevent these evils, and if
indeed it be really Your Excellency’s object to prevent further
1842] CENTRAL GOVERNMENT 173
bloodshed Your Excellency will easily find reasons to counter-
mand Your Excellency’s purposed Military Expedition, and
to have recourse to other means that might be attended with a
more humane and happy result.
It has occasioned us feelings of great regret that from the
commencement of our emigration we should constantly have
heard how we were unjustly held up to the World as a bar-
barous people who were impatient of civilized laws and Church
discipline and sought to live in a state of licentiousness, each
as his inclination prompted : Yet we have more than once
shamed our Accusers although we are inexperienced Boers
who in their native land never took part in the public affairs
of their Country, yet we have succeeded in establishing a
form of Government which is daily gaining the public con-
fidence more and more. Divine worship has also been
regularly established, and the cultivation of the Country and
building are daily increasing. We have already erected a
respectable Chapel for holding divine service, and the instruc-
tion of youth is upon a good footing. The surrounding
warlike Zoolahs have been checked in their constant hostile
attacks, so that from a fear for us they very seldom and only
stealthily take up arms against us. Two missionaries under
our protection are already labouring amongst them, and we
have the best prospects that the civilization of that people
will be sooner promoted than that of the Kaffirs on the
Colonial frontiers. And all this has been accomplished whilst
we are only beginning to get out of our difficulties. Your
Excellency may therefore well suppose how painful it will be
to us to see all our hopes and expectations frustrated at once.
One single wrong or impolitic experiment would occasion us
irremediable injuries. Already are officious Agents busied
in inciting the Kaffirs against us, to their or our own mis-
fortune, and in impressing upon them that we are their
oppressors, but that the English are their protectors, and that
if they adhere to the English they would get our Cattle as
a reward. Your Excellency has probably not given your
sanction to it, yet it is done ; and can the civilized world
ever blame us, if, under such circumstances and under such
inhuman persecution, we do and risk everything for the pre-
servation of our lives, and, if obliged to retreat before superior
force and seek security farther inland where we may be more
concentrated and combat our enemy with greater advantage,
can reproach be cast upon us should we seek indemnification
from our old debtors the Kaffirs for the losses which we have
suffered in the Colony, and since our departure, as well as
for our farms, dwellings, and other property which we shall
have been obliged to leave behind us here a prey to devasta-
174 NATAL [1843
tion ? We pray that the Almighty may prevent this, and that
it may please Him to grant us a better issue !
Finally, for ourselves as well as at the urgent request of
our fellow-Emigrants, we must protest most strongly against
the taking possession of any part of this Country, as threatened
in Your Excellency’s Proclamation of the 2nd December afore-
said, and declare that from henceforth we hold ourselves
blameless before God and our consciences and before the
World, for the evil consequences of such a step.
We have the honour, with the highest respect, to subscribe
ourselves, Sir,
Your Excellency’s obed. Servants, the President and
Members of the Council of the People,
(Signed) J. PRINSLOO, President ; H. S. LOMBARD,
A. G. SPIES, J. C. KLOPPERS, J. H. BRUWER,
P. M. BESTER, JAN DU PLESSIS, L. BADEN-
HORST, W. J. PRETORIUS, L. S. BOTMA,
M. H. MARAIS, C. J. VAN HEERDEN, S. W.
VAN DER MERWE, M. G. STABLER, C. P.
BOTMA, G. H. OTTO, J. BODENSTEIN,
K. P. LANDMAN; J. J. BURGER, Member
and Secretary.
P.R.O., MS. copy in C.O. 48/223.
No. 107. DEMANDS FOR CONSTITUTIONAL LIBERTIES.
[Made by the Volksraad of Natal in anticipation of their submission
to British rule, 4th Sept. 1843. Addressed to Commissioner H. Cloete, 1
who had arrived in Natal as Her Majesty’s Commissioner with in-
structions to come to a provisional agreement with the Republicans.
After making sundry remarks and stating that they were prepared to
submit to the Queen’s sovereignty, they proceed :]
6th. We take the liberty urgently to request that you will
recommend to Her Majesty’s Government, that Natal may be
considered as a separate Colony, as we deem it of the utmost
importance that the Governor should correspond direct with
the Home Government, and consequently also act more on
his own responsibility ; and as we likewise believe that the
remoteness from Cape Town, and the distance between this
Colony and the Cape, will prevent the Governor of that place
from acting otherwise than on information obtained from the
highest authority here, which cannot be attended with any
utility, but rather to shackle the hands of the Governor here,
and at the same time remove much of his own responsibility.
Nevertheless we think that the public funds of this Colony, for
1 The author of the Great Boer Trek (Cape Town, 1856, and London, 1899)
1843] CENTRAL GOVERNMENT 175
a considerable time, will not be sufficient to give a Governor,
under whatever denomination, a large salary. We are also of
opinion, that that functionary should of necessity be a person
well versed in the Laws by which we are to be governed, if
he is to preside in the Court of Appeals, as we have proposed
in the sequel ; and also acquainted with our language, customs,
etc. in order that every inhabitant, even the most humble,
may, if requisite, have the more freedom to represent his
interest in person.
7th. With reference to the point of Legislation for the
Colony, we beg to submit to the favourable consideration of
Her Majesty’s Government, the following propositions, as,
according to our ideas, the most suited to establish universal
satisfaction and confidence among the inhabitants, and thus
the more readily ensure, whenever such should be required,
their willing co-operation with the Government, namely :
That there shall be a Legislative Council, consisting at
least of twelve persons, chosen by popular election, which
election shall take place every two years, six members to
form a quorum ; which number of twelve might be always
augmented with the increase of the population.
That the qualification of a Member of Council shall be a
residence of at least twelve months previous, and in the posses-
sion of a good reputation, and of property, in houses and
lands of the value of at least 500.
That the following causes shall incapacitate any person
from being nominated as a Member of Council : To lead a
bad and dissolute life, such as drunkenness, and the like;
deafness, blindness, or similar bodily infirmities ; an Atheist ;
one unable to read and write the English and Dutch Languages.
That the Members shall be chosen by the Inhabitants of
every District and Village, according to the amount of the
population of each place ; That no one shall be entitled to
vote at the election, unless he be a proprietor of houses or
lands, of the value of not less than 150 ; having been an
inhabitant of the Colony for at least six months, and able to
read and write either the English or Dutch Language.
That all Laws, without exception, shall be framed or
passed by the Legislative Council, and on being approved
by the Governor, have immediate effect ; and that no taxes
shall be imposed on the inhabitants without a legislative
enactment.
That the Governor, or some person in his behalf, shall be
entitled to a seat in the Legislative Council, in order to
propose, or recommend, such Laws, etc. as also negotiations
with the Natives bordering on the Colony, as he shall deem
expedient for the benefit and security of the Country,
176 NATAL [1843
That the Council shall be at liberty to ask any information
that the Governor may be able to afford.
8. Proceeding to make some propositions respecting the
judicial and other local institutions here, we deem it necessary
to premise, that, in doing so, we have not only had in view
the merits of these institutions themselves, but likewise the
least expensive mode of carrying them out, and to render
them the most acceptable for the present population ; it
being left to the Council, from time to time, and according
to circumstances, to make or recommend any further and
necessary alterations in respect thereof.
We deem it desirable that the judicial functions should
be administered by local officers, namely, the Landdrost or
Magistrate of the District, who shall likewise fill the Situation
of Civil Government Agent or Commissioner, as in the Cape
Colony, with or without the assistance of District Justices of
the Peace, or Special Heemraden, and a Jury, according to
the degree of jurisdiction, as well in criminal as in civil cases ;
the Landdrost alone may have jurisdiction without appeal,
in criminal cases to a fine of i, IDS. ; or imprisonment, with
or without irons, or spare diet, for a period not exceeding
14 days ; and in civil cases, to an amount not exceeding
i, IDS. That the Landdrost, with two special Heemraden,
or Justices of the Peace, shall have jurisdiction without appeal,
in all criminal cases not exceeding a fine of 5 ; or imprison-
ment, with or without hard labour, spare diet, or irons, for a
period not exceeding one month ; or a flogging of not more
than 25 lashes ; and in civil cases, to a value not exceeding
5. That in all criminal cases, in which the person shall be
subject to a severer punishment, or in all civil cases in which
the case in issue exceeds the sum of 5, appeal may be lodged
to a higher Court.
That the Landdrosts, with two special Heemraden, or
Justices of the Peace, shall hold a monthly Court, and decide
by majority of votes ; the Landdrost, or one or more of the
Heemraden, shall however be at liberty himself to allow
appeal in unappealable cases, when they may differ, or when
they themselves have some doubt about any legal question, etc.
That there shall be a. superior and circuit Court once in
every six months in each district, composed of the Landdrosts,
of two or more adjoining Districts, and two or more of the
Special Heemraden of such District, who shall have jurisdic-
tion, without appeal, in all criminal cases in which the prisoner
may have been previously guilty adjudged to a fine exceeding
10, or imprisonment with or without hard labour, for a longer
period than six months, or to a whipping, in public or private,
of more than 75 lashes ; or to transportation out of the Colony,
1843] CENTRAL GOVERNMENT 177
or to confiscation of property, or to capital punishment ; in
all which cases a verdict of guilty must be returned by a Jury
of at least nine persons. All sentences of transportation out
of the country, or imprisonment exceeding two years, or
where a capital punishment is awarded, shall not be put into
execution than after the Fiat of the Governor being obtained.
It shall, however, be competent for two of the Members of the
Court (exclusive of the Jury), in the event of difference, or
any doubt, to refer Sentences of less magnitude to the approval
of the Governor.
That the Governor shall have the right to remit or mitigate
all sentences in criminal cases.
That the said Court in civil cases, without a Jury, shall
have jurisdiction, without appeal, wherein the value in dispute
may amount to from 10 to 20 ; and with appeal, in all
questions of greater amount.
That on the nomination of the Inhabitants of each District,
who are eligible to serve on a Jury, and on the further
recommendation of the Legislative Council, every two years,
eight persons eligible to be chosen as Members of Council,
shall be proposed to the Governor, of whom four shall be
appointed as Special Heemraden, or Justices of the Peace,
for that District for the said period; who shall during the
continuance of their office, be exempted from all other public
duties, and receive for their attendance in Court an allowance
of ten shillings each, per day, besides travelling expenses;
and they will likewise have the power of Justices of the Peace,
as in the Cape Colony.
That the Governor, or Commander-in-Chief , of the Colony,
with two or more Members of the Executive Council, shall
constitute a Court of Appeal, which Court shall have a Session
once in three months.
That all Regulations for the various Courts shall be pre-
pared by the Legislative Council, and submitted for the sanction
of the Governor.
That, except in cases where local laws shall be provided,
the common laws, both criminal and civil, shall be followed
as they are observed in the Cape Colony.
That the Dutch Language shall be used in all Courts of
Law, except where the majority of the inhabitants of the
District shall speak English.
9. That the Landdrost of each District shall be nominated
by the Inhabitants who are entitled to choose a Councillor,
and on the further recommendation of the Legislative Council
be appointed by the Governor, to serve during good behaviour ;
that the Governor, however, may refuse to make such appoint-
ment, on the ground of incapacity or other unfitness of the
12
178 NATAL [1843
person recommended ; and that in such case another elec-
tion shall take place; no one being eligible for that office
who is not entitled to serve as a Member of Council.
That all other officers (inferior) shall be appointed by the
Governor, the preference being given to persons born in the
Colony, and possessing the necessary qualifications.
10. That to every town or village, at the request of the
inhabitants, municipalities shall be granted ; and that the
Lands now granted to Villages for grazing, etc. shall not be
disposed of in any other manner than to the improvement
of the Village, either in waterworks, roads, or the like.
11. With regard to Public Worship, we wish to submit
for yourrecommendation.thateverydenominationof Christians
shall be acknowledged by Government and protected against
all violence, persecution, or disturbance ; That the Congrega-
tions of every Church shall be at liberty to elect and appoint
their own Ministers and other Church Officers, agreeably to
their own Church Laws and Regulations, without any
meddling or interference on the part of Government ; and
that the public revenue shall not be burdened with any ex-
penses for the support of any Church Establishment what-
soever ; but that the Congregations shall themselves provide
therein. That, however, no Idolatry, profane or other blas-
phemous sects shall be tolerated, which may tend to the
corruption of morality, or disturbance of the public peace.
That with respect to the Schools, the Legislature shall
make provisions, as in all other legal matters.
12. With respect to our possessions in Lands, we cannot
proceed to propose any particulars for your recommendation,
without at the same time intimating to you, that this is a
subject, in respect of which a general and lively interest is felt,
and of the final result whereof, we dare not conceal it to be
our firm ideas, that from that will decidedly depend the perfect
satisfaction or dissatisfaction, both here and elsewhere, as far
as this Colony is inhabited, a subject which may cause
unwished-for consequences if the decision of Her Majesty’s
Government in that respect should be hard and pressing, or
unjust, according to the views of the parties concerned. Yet,
on this point we must assure you, that we, relying on the
spirit of the declaration made by Her Majesty, cherish a
perfect confidence that Her Majesty’s Government will be
anxious and willing to take our interests into most favorable
consideration. We perceive from the nth Art. of the Pro-
clamation of His Excellency the Governor, hereinbefore
alluded to, that, as Her Majesty’s Commissioner, you are only
empowered to assure to the possessors the tenure of such
Lands alone which shall have been bona fide occupied for the
1843] CENTRAL GOVERNMENT 179
space of twelve months, next preceding your arrival at this
place ; and without any definition as to the probable extent
of ground which shall be considered to be a place [i.e. a farm].
From the manifold applications which have already been
made to you on this point, we hold ourselves assured, that you
will have considered, both in equity and justice, and even on
the principle of public good, and the advancement of the
prosperity of this infant Colony, you cannot well refuse, (in
consideration of the particular circumstances herein set forth,
and whatsoever else has appeared to you,) to endeavour to
move Her Majesty’s Government, further to extend the rights
of Owners to their places, as has been allowed you by the
Proclamation.
They are not only the possessors of occupied Lands who
consider themselves as having a just claim thereto, but also
those who have obtained their Land under the same authority,
who have done and suffered for the Land, and were only
prevented from occupying their Land, while the hitherto
existing insecurity compelled them either to reside for the
present in the villages or small encampments, or to remain for
mutual protection on the places of the one or other of their
fellow-citizens, until an opportunity should offer that they
could without imminent danger to their lives proceed to their
places to cultivate and build on their own ground. When
therefore all those shall not be entitled to the grants of Land
alike with those who were fortunate enough to be able to
occupy theirs, the majority of the people will be deprived of
Land, and through damages and losses suffered, being reduced
to poverty, and consequently unable to purchase from Govern-
ment, it would not be too much to expect that the utmost
dissatisfaction would arise, and that those persons could be
moved to continue in a Country, and therein co-operate for
the common welfare, or in bearing the burdens, if they were
to be deprived of all participating interest, or to have the
prospect of procuring a resting-place for themselves and their
children. We are persuaded that in this case, the number of
the present inhabitants on this side of the Draakberg will
decrease by at least 50 p. Ct. The consequences which will
result therefrom we will not even venture to sketch ; and
although we doubt not but Her Majesty possesses the means
of ultimately establishing order and submission, we know this
for certain, that it will for a considerable time retard the safety
and prosperity of this Colony, and that the measures to be
adopted by Government would be attended with more expense
than all the Lands we now claim are worth.
[Further remarks to prove the right of those to whom
titles to land have been issued by the Volksraad.]
i8o NATAL [1843
13. A free Trade, which we would wish Her Majesty’s
Government to grant to this Country, with all Nations, even
as to the most favoured of the British Colonies.
The trade with the Zoolahs and other Border Nations, we
deem necessary to be at first most strongly forbidden, until
the necessary laws can be framed in that respect ; and under
such regulations, that the trade in arms and ammunition may
be prevented and prohibited.
14. That no Colonial Paper Money shall be introduced,
but only English Sterling Money.
15. That no Burghers of the Land, or their Children, shall
be pressed or forced into the Military Service ; we consider a
request which Her Majesty’s Government will readily concede.
16. With respect to the limits of this Colony, to the North,
we beg you to recommend, to fix the same to the so-called
Drakensberg ; (from where all running water takes a course to
the sea, South and South-eastward,) until the willingness of
the Inhabitants of the very extensive parts to the North of
the said Drakensberg shall have been ascertained, to participate
in the privileges already granted, or hereafter to be granted
to this Colony, by Her Majesty ; which measure we deem will
be the least expensive, and will bring about a speedier settle-
ment of all matters, hasten the population of the Country on
this side of the Mountain, and make the management so much
easier.
17. [The immigration of those only who are able to support
themselves on arriving should be allowed.]
18. [Renewed professions of sincerity in submitting to
British rule.]
Apologising for the liberty we have taken herein, we have
the honour, with great respect, to be, SIR,
Your most obedient humble Servants,
President and Members of the Council,
J. S. MARITZ, 5. Prest. ; G. J. NAUDE, A. J. VISAGIE,
L. J. MEYER, H. S. VAN DEN BERG, B. POORTMAN,
G. C. VlLJOEN, E. F. POTGIETER, G. A. R. OTTO,
P. G. HUMAN, C. P. BOTMA, P. H. ZIETSMAN,
J. A. KRIEL, S. A. CILLIERS, M. J. POTGIETER,
P. R. NEL, C. A. BOTHMA, W. A. VAN AARDT.
J. BODENSTEIN, Secretary of Council.
P.R.O., MS. copy of translation in C.O. 48/235.
BRITISH AUTHORITY CONSOLIDATED. [5 Oct. 1843.]
No. 108. Treaty between HENRY CLOETE, Esq., Her Majesty’s
Commissioner for Natal, and PANDA, King of the Zulus.
ART. i. There shall be henceforward and for ever peace
1843] CENTRAL GOVERNMENT 181
and friendship between the undersigned King Panda and his
subjects, and Her Majesty Queen Victoria and all Her Majesty’s
subjects.
2. It is hereby agreed between the undersigned that
the respective boundaries between the territory of Natal and
the Zoolah nation, shall be denned at the sea-line, by the
mouth of the River Tugela, and from thence upwards until the
junction of that stream with the River Umsinyaatee (or Buffels
River), from thence upwards by the said River Umsinyaatee
(or Buffels River), or such other boundary line along or near
its banks, as may, at any time hereafter, be fixed upon by the
undersigned, Her Majesty’s Commissioner for the territory
af Natal, or such other Commissioner as Her Majesty may
appoint, and by any two Indunas or Commissioners, whom
the undersigned Panda, King of the Zoolah nation, may
appoint for that purpose, and from thence northward to the
foot of the Quathlamba (or Draaksberg) mountains.
3. The undersigned Panda, King of the Zoolah nation,
hereby agrees and binds himself to direct Koedoe, the captain
of certain kraals placed by the late King Dingaan on the right
bank of Tugela, and all such other captains or Chiefs of kraals
as may be found to come within the boundaries of the territory
of Natal, hereby fixed and determined, to be removed from their
respective stations.
The undersigned, Her Majesty’s Commissioner, for, and
on behalf of, Her Majesty, hereby agreeing and consenting to
allow them to remain until their crops shall have been
reaped and then to take with them all their effects and lawful
property.
Thus done, and agreed upon, and confirmed, by the signa-
ture and marks of the undersigned, King Panda, and the
undersigned, Her Majesty’s Commissioner, at the chief town
of Elapeen, on this the 5th day of October 1843, in the presence
of the undermentioned witnesses.
(Signed) This is the mark of the King x
PANDA, made by himself.
This is the mark of the Induna
x UMVUNHLAAN, made by
him.
This is the mark of the Induna
x UMKONDANI, made by him.
(Signed) H. CLOETE, L.L.,
Her Majesty’s High (sic) Commissioner.
Witnesses
(Signed) D. C. TOOKEY.
C. J. BUISSINE.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 56,
182 NATAL [1844
No. 109. ANNEXATION OF NATAL TO THE CAPE
COLONY.
[Letters Patent, dated 31 May 1844.]
VICTORIA, by the Grace of God, of the United Kingdom
of Great Britain and Ireland, Queen, Defender of
the Faith, to all to whom these presents shall
come, Greeting :
WHEREAS by letters patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland, bearing date
at Westminster, the Nineteenth Day of December, One
Thousand Eight Hundred and Forty-three, in the Seventh
Year of Our Reign, We did constitute and appoint Our
Trusty and Well-beloved Sir Peregrine Maitland, Knight,
Commander of the Most Honourable Military Order of the
Bath, Lieutenant-General of Our Forces, to be Our Governor
and Commander-in-Chief, in and over Our Settlement, at the
Cape of Good Hope, in South Africa, with its Territories and
Dependencies, as also of the Castle, and all Forts and Garrisons
erected, or established, or which should be erected or estab-
lished, within the said Settlement, Territories and Dependencies.
And Whereas, since the date of the said recited letters
patent, it hath seemed good to us to annex to the said Settle-
ment of the Cape of Good Hope, the Territories occupied by
Our Subjects throughout the District of Natal, in South
Africa ; Now know Ye, that We of Our especial Grace, certain
knowledge and mere motion, have annexed and do hereby
annex the said District of Natal to Our said Settlement of
the Cape of Good Hope, as a part and portion thereof.
PROVIDED, nevertheless, and We do hereby declare Our
pleasure to be that no law, custom or usage now in force within
our said Settlement of the Cape of Good Hope, shall by force
and virtue hereof extend to and become in force within the
said District of Natal, and that no Court or Magistrate of or
within Our said Settlement of the Cape of Good Hope shall by
force or virtue hereof acquire, hold or exercise any jurisdiction
within the said Colony of Natal, but that it shall be competent
to and for the Legislature of Our said Settlement of the Cape
of Good Hope, to make, ordain and establish all such laws and
ordinances as to them shall seem meet, for the peace, order
and good government of the said District of Natal, whether in
conformity or not in conformity with the laws and ordinances
in force within the other parts of Our said Settlement of the
Cape of Good Hope, any letters patent, charters, orders in
council, local ordinances, or other law or usage to the contrary
notwithstanding. Provided always, that all laws and ordi-
nances so to be made as aforesaid for the peace, order and good
1845] CENTRAL GOVERNMENT 183
government of the District of Natal, shall be so made in such
and the same manner, and with, under and subject to all such
and the same conditions, restrictions and reservations as are
or shall be in force within Our said Settlement, in respect to the
making of laws and ordinances for the peace, order and good
government of other parts thereof. And we do hereby reserve
to ourselves full power and authority to revoke or alter these
presents, as to us shall seem meet. In witness whereof, we
have caused these Our Letters to be made Patent.
Witness Ourself at Westminster, this Thirty-first Day of
May, in the Seventh Year of Our Reign.
By Writ of Privy Seal,
EDMUNDS.
P.R.O., C.O. 52/11 (C. ofG. Hope
Govt. Gazette, 22 Aug. 1845.)
MAINTENANCE OF BRITISH AUTHORITY OVER ALL
EMIGRANTS. [21 Aug. 1845.]
No. 110. Proclamation. By His Excellency Lieut. -General
Sir PEREGRINE MAITLAND, Knight Commander [etc.].
WHEREAS in and by a Proclamation bearing equal date with
these presents, I have referred to certain Letters Patent
of Her Majesty the Queen, annexing the District of Natal to
the Settlement of the Cape of Good Hope, as a part or portion
thereof ; and have also declared and made known the limits
which, for the time being, Her Majesty has been pleased to
assign to the said District ; and whereas there is reason to
apprehend that ignorant persons may mistake, and that evil-
minded persons may misrepresent, the true nature and effect
of the said Proclamation, and may treat and consider, or affect
to treat and consider, the same as a tacit renunciation of the
Royal Authority of Her said Majesty over such of Her Subjects
as may remove to or reside in Territories beyond the limits
of the said Districts : and whereas any such impression upon
the part of any of Her Majesty’s Subjects, would be wholly
irrational and unfounded, and productive of the most dangerous
consequences to all who should presume to act upon it :
Now, THEREFORE, I Do HEREBY PROCLAIM, DECLARE, and
MAKE KNOWN, for the warning and information of all whom
it may concern, that Her Majesty the Queen, by graciously
establishing in the District of Natal a settled form of Govern-
ment, is not to be understood as in the least renouncing Her
rightful and sovereign authority over any of Her Subjects
residing or being beyond the limits of the said District ; that
while such of Her Subjects as shall peaceably reside within the
184 NATAL . [1845
said limits, shall enjoy a degree of protection which cannot be
afforded to others resident beyond the same, the latter, if
guilty of crimes or offences, will be equally amenable to justice,
and exposed to punishment ; that the Acts of Parliament
made and passed in the reign of His late Majesty King William
the Fourth, for the prevention and punishment of Offences
committed by British Subjects within Territories adjacent
‘to the Cape of Good Hope, will still remain in full force and
operation, in regard to all such Subjects as last aforesaid ;
and that the establishment in the Natal District of an efficient
Government and administration of Justice, instead of counten-
ancing any idea that Her Majesty has abandoned her avowed
determination not to permit any of Her Subjects, wherever
resident, to affect independence, or act without control, will
powerfully tend, in connexion with other arrangements lately
entered into, and now in progress of completion, to repress any
tendency to violence or injustice amongst any of Her Subjects
sojourning beyond Her Majesty’s Dominions, and secure the
peace and good order of every portion of South Africa, in
which such Subjects may have settled.
GOD SAVE THE QUEEN.
P.R.O., C.O. 52/11 (C. ofG. Hope
Gout. Gazette, 22 Aug. 1845.)
NATAL A SEPARATE COLONY.
[Letters Patent, dated 30 April 1845.]
No. 111. Grant. Erecting the District of NATAL into a Separate
Government.
VICTORIA, by the Grace of God, of the United King-
dom of Great Britain and Ireland, Queen, Defender
of the Faith, to all to whom these presents shall
come, Greeting :
[Letters Patent appointing Sir Peregrine Maitland Governor
of the Cape Colony, and Letters Patent annexing Natal to the
Cape Colony, recited.]
. . . whereas We have deemed it expedient that the . . .
district of Natal should be erected for certain purposes into a
distinct and separate government to be administered in manner
hereinafter mentioned : Now, therefore, We do hereby declare
Our will to be and by these presents do constitute and appoint
that the said district of Natal shall henceforth be constituted
and become a distinct and separate Government to be ad-
ministered in Our name and on Our behalf by a Lieutenant-
Governor, to be by Us for that purpose appointed by warrant
under our Royal Sign Manual and Signet to be countersigned
1845] CENTRAL GOVERNMENT 185
by one of Our principal Secretaries of State, and in the event
of the death, or absence, or incapacity of any such Lieutenant-
Governor, or in the event of there being no person in the said
district commissioned by Us to be Lieutenant-Governor as
aforesaid, then and in every such case Our will and pleasure
is that the said office shall be administered provisionally by
some person to be for that purpose appointed by the Governor
and Commander-in-Chief, or by the officer for the time being
administering the government of the said settlement of the
Cape of Good Hope, by a Commission to be for that purpose
issued under the public seal of the said settlement, which
provisional appointment shall continue in force until Our
pleasure shall be known and no longer : and We do hereby
give and grant to such Lieutenant-Governor for the time being,
or to such person as may be provisionally appointed to ad-
minister the government of the said district of Natal as afore-
said, all such powers and authorities within such district as
by the said recited Letters Patent of the igth day of December,
in the seventh year of Our reign, are granted to and vested in the
said Sir Peregrine Maitland as Governor and Commander-in-
Chief in and over the said settlement of the Cape of Good
Hope ; subject, nevertheless, to all such restrictions and
limitations as are set forth in the said recited Letters Patent
of the 3ist day of May 1844, … as well as to all such rules
and regulations as shall be made and established by such in-
structions as hereinafter are mentioned for the practicable and
convenient exercise of such power and authority : Provided,
nevertheless, and We hereby declare Our will and pleasure to
be that it shall be lawful for the said Sir Peregrine Maitland,
or for the officer for the time being administering the govern-
ment of the said settlement from time to time, as occasion shall
require, and as he shall be directed by such instructions as
aforesaid to repair to the said district of Natal and to assume
the government thereof in person and during such his residence
therein, We do further declare Our pleasure to be that all and
every the powers and authorities in and by the said recited
Letters Patent in him vested in and over the said district
of Natal shall revive, and that, during the same period or
periods all and every the powers and authorities by these
presents vested in such Lieutenant-Governor shall be and are
hereby suspended : Provided also, and We do further declare
Our will and pleasure to be that nothing herein contained shall
extend or be construed to extend to take away, abridge, or
alter all or any of the powers and authorities in and by the
said recited Letters Patent given to the Legislature of Our said
settlement of the Cape of Good Hope, to make, ordain, and
establish all such laws and ordinances as to them shall seem
i86 NATAL [1847
meet for the peace, order, and good government of the said
district of Natal ; but that the said Legislature shall have,
hold, exercise, and enjoy such power and authority as afore-
said of making such laws and ordinances as aforesaid for the
said district as fully and effectually as if these presents had not
been made : and Our will and pleasure further is, that in the
execution of the powers hereby vested in the said Lieutenant –
Governor for the time being, or such person so provisionally
appointed as aforesaid, he do in all respects conform to and
obey all such orders and instructions as shall for that purpose
be addressed to him by Us in Our Privy Council or under
Our Signet and Sign Manual, or through one of Our principal
Secretaries of State ; and We do hereby reserve to ourselves
full power and authority to revoke or alter these presents as
to Us shall seem meet. In witness, etc. Witness, etc. the 30th
day of April.
By writ of Privy Seal.
1 certify the foregoing to be a true and authentic copy.
JOSEPH BURTT, Assistant Keeper of the
Public Records.
2 July 1868.
[Patent Roll 8 Victoria Part 27 (No. 6).]
Parl. Papers, Natal, 22 July 1868,
No. 454, p. 21.
LEGISLATIVE COUNCIL ESTABLISHED.
[Letters Patent, dated 2 March 1847.]
No. 112. Grant. Establishing a Legislative power in the
District of NATAL.
VICTORIA, by the Grace of God, of the United King-
dom of Great Britain and Ireland, Queen, De-
fender of the Faith, to all to whom these presents
shall come, Greeting :
[Letters Patent of 3ist May 1844, and of 3oth April 1845,
recited.]
. . . whereas We did by both the aforesaid Letters Patent
reserve to Ourselves full power and authority, to revoke and
alter the same as to Us should seem meet. Now know you that
We have revoked and determined, and do by these presents
revoke and determine so much, and such part only, and no
more of both the said recited Letters Patent of the 3ist day of
May 1844, and of the 3oth day of April 1845, as empowers
and authorises the Legislature of the Cape of Good Hope to
make, ordain, and establish laws and ordinances for the peace,
order, and good government of the said district of Natal.
1847] CENTRAL GOVERNMENT 187
And We do hereby further grant, ordain, and declare, that
the officer, for the time being, administering the government
of the said district of Natal, and such three, or more other
persons as shall, from time to time, be by Us for that purpose
named, or designated by any instruction or instructions, or
warrant or warrants, to be by Us for that purpose issued under
Our Sign Manual and Signet, and with the advice of Our
Privy Council shall constitute, and be a Legislative Council
for the said district of Natal, and shall hold their places therein
during Our pleasure. And We do by these presents further
grant, ordain, and declare, that the said Legislative Council
shall have full power and authority to make, constitute, and
ordain all such laws and ordinances, as may be required for the
peace, order, and good government of the said district of Natal.
Provided nevertheless, and We do hereby reserve to Ourselves
full power and authority, from time to time, as We shall see
occasion to disallow any such laws or ordinances. And We do
declare that any such law or ordinance shall cease to be of
any force or authority within the said district of Natal imme-
diately upon, and after the publication therein by the officer
administering the government thereof, of a Proclamation
notifying the receipt by him of any such order of disallowance
which Proclamation every such officer is hereby required to issue
with the least practicable delay after the receipt by him of
any such order. And We do hereby further ordain, direct, and
appoint that in the enactment of any such laws and ordinances
as aforesaid, the officer, for the time being, administering the
Government of the said district, shall conform to, and observe
all such orders as We shall see fit to make for his guidance
therein, by any instructions to be by Us from time to time
issued under Our Sign Manual and Signet with the advice of
Our Privy Council. And We do hereby reserve to Ourselves,
Our heirs and successors, full power and authority, from time
to time, as We shall see occasion to revoke, alter, and amend
these presents, or any part thereof. In witness, etc. Witness
etc. the 2nd day of March.
By writ of Privy Seal.
1 certify the foregoing to be a true and authentic copy.
JOSEPH BURTT, Assistant Keeper of the
Public Records.
2 July 1868.
[Patent Roll 10 Victoria Part 25 (No. 3).]
ParL Papers, Natal, 22 July 1868,
No. 454, p. 22,
i88 NATAL [1856
CHARTER OF NATAL.
[Letters Patent, dated 15 July 1856.]
No. 113. Erecting the District of NATAL into a Separate Colony
and Providing for the Government thereof.
VICTORIA, by the Grace of God, of the United Kingdom
of Great Britain and Ireland, Queen, Defender
of the Faith, to all to whom these presents shall
come, Greeting :
WHEREAS We are desirous of making provision for the
more effectual Government of the Territories occupied by Our
Subjects throughout the District of Natal in South Africa.
[Letters Patent of 3ist May 1844, of 3oth April 1845, and
of 2nd March 1847, recited.]
And whereas by certain other . . . Letters Patent bearing
date at Westminster the fifteenth day of January, one thousand
eight hundred and fifty . . . We did declare Our will and
pleasure that if at the time of the death, absence or incapacity
of Our Lieutenant-Governor of Our said District of Natal
there should be no person within Our said District commis-
sioned to be such Lieutenant-Governor, then and in every such
case the Senior Officer for the time being in command of Our
Troops in Our said District should take upon himself the
administration of the Office of Lieutenant-Governor of Our
said District until some person should have been provisionally
appointed by Our Governor of Our Colony of the Cape of
Good Hope or by the officer for the time being administering
the Government of Our said Colony, to administer the afore-
said Office of Lieutenant-Governor of Our said District of
Natal,
And whereas in all the above recited Letters Patent We
did reserve to Ourselves power to revoke the same,
[i] Now Know Ye That We have revoked and determined
and do by these presents revoke and determine the aforesaid
several recited Letters Patent and all and every the clauses,
articles and things therein contained except as hereinafter
provided, so far only excepted, and no further, that the Legis-
lative Council of Our said District of Natal as constituted by
Our said recited Letters Patent of the second day of March,
one thousand eight hundred and forty-seven, in the tenth
year of Our Reign shall continue to hold, exercise and execute
all and every the authorities, powers and functions given and
granted by Us to the said Council by Our said Letters Patent,
until the return of the first Writs for the election of the members
of the future Legislative Council as constituted under and by
virtue of these presents, and no longer.
1856] CENTRAL GOVERNMENT 189
And further Know Ye That We of Our especial grace,
certain knowledge and mere motion have thought fit to erect
and do hereby erect the said District of Natal into a separate
Colony, and the same is hereby erected into a separate Colony
accordingly, to be called the Colony of Natal.
[2] And We do hereby declare and appoint that the Govern-
ment of Our said Colony shall be administered by a Governor
duly commissioned by Us, or in the event of his death, in-
capacity or absence from Our said Colony, or if no Governor
shall have been commissioned by Us, by a Lieutenant-Governor
[or other person duly appointed].
[s] And We do hereby grant, appoint and ordain that all the
powers, directions and authorities hereby given and granted
to Our Governor lor the time being of Our said Colony of
Natal shall be and the same are hereby given and granted
to Our Lieutenant-Governor for the time being of Our said
Colony or other person for the time being administering the
Government of Our said Colony until Our further pleasure
shall be signified thereon.
[4] And We do hereby authorize and empower Our Governor
of Natal to keep and use the Public Seal appointed for the
sealing of all things whatsoever that shall pass the seal of
Our said Colony.
[5] And whereas it is expedient that there shall be an Execu-
tive Council to advise and assist Our Governor of Natal, We do
by these Our Letters Patent authorize and empower Our said
Governor to summon as an Executive Council such persons
as shall from time to time be named or designated by Us in
any instructions under Our Sign Manual and Signet addressed
to him in that behalf.
[e] And whereas it is expedient to alter the constitution of
the Legislative Council of the said Colony, We do hereby grant,
appoint and ordain as follows : We do hereby authorize and
empower Our said Governor of Natal with the advice and
consent of the Legislative Council thereof to make all such
laws as may be necessary for the peace, order and good govern-
ment of the said Colony, provided that the same be not re-
pugnant to the Laws of England.
[7] The Legislative Council of Natal shall consist of sixteen
members, of whom twelve shall be elective and four non-
elective.
[s] The non-elective members shall consist of such Public
Officers within the said Colony or of such other persons within
the same as shall from time to time be named or designated
for that purpose by Us by any instruction or instructions or
warrant or warrants to be by Us for that purpose issued
under Our Sign Manual and Signet with the advice of Our
NATAL [1856
Privy Council which said Councillors shall hold their places in
the said Council at Our pleasure.
[9] It shall be lawful for Our said Governor upon the death,
resignation, incapacity or absence from the said Colony of
any such non-elective members of the Legislative Council to
appoint a substitute who shall act provisionally in the place
of such member until other provision shall be made by Us.
[10] The elective members shall be chosen by the electors
of the following eight electoral districts, that is to say :
1. Two for the County of Klip River.
2. One for the County of Weenen.
3. One for the County of Umvoti.
4 . Two for the County of Pietermaritzburg.
5. One for the County of Durban.
6. One for the County of Victoria.
7. Two for the Borough of Pietermaritzburg.
8. Two for the Borough of Durban.
[n] Every man, except as hereinafter excepted, above the age
of twenty-one years, who possesses any immovable property
of the value of Fifty pounds or who rents any such property
of the yearly value of Ten pounds within any electoral district
and who is duly registered in manner hereinafter mentioned,
shall be entitled to vote at the election of a member for such
district. When any such property as aforesaid is occupied by
more persons than one as proprietors or renters, each of such
occupants being duly registered shall be entitled to vote in
respect of such property, provided the value, or as the case
may be, the rent thereof, be such as would entitle each of
such joint occupants to a vote if equally divided among them.
[12] Aliens, not having been naturalized by some Act of the
Imperial Parliament, or of the Legislature of Natal, and
persons who shall have been convicted of any treason, felony,
or infamous offence, and shall not have received a free pardon,
shall not be qualified to vote at any such election.
[13] No person shall be capable of being elected a member of
the Legislative Council unless he shall be a duly qualified and
registered elector for some electoral district in the Colony,
nor unless he shall have been invited to become a candidate
for such election, by at least ten electors of the County or
Borough which it is proposed he shall represent ; nor unless
such requisition shall have been transmitted to the Resident
Magistrate of the County or Borough with a notification of the
said Candidate’s acceptance thereof, at least fourteen days
before such election is appointed to take place.
[14] If, in any electoral district, any person shall sign requisi-
tions to more than one Candidate for each vacancy in the
1856] CENTRAL GOVERNMENT 191
Legislative Council, in respect to which he is entitled to a vote,
his signature shall be expunged from all requisitions which he
shall have so signed.
[15] The Resident Magistrate shall, at least seven days before
the day appointed for the commencement of the Poll, cause
the said requisitions to be published for the information of
the Electors.
[ie] Our said Governor shall by proclamation in the Government
Gazette fix the time and place or places for holding the Sessions
of the Legislative Council provided that the said Legislative
Council shall be convoked within six months after Our said
Governor shall have received these presents and once at least
in every subsequent year.
[17] Our said Governor may b}-‘ proclamation prorogue or
dissolve the Legislative Council when he shall think fit ; and
in the absence of such dissolution the elected members of the
Legislative Council shall hold their seats for four years from
the day of the returning of the first Writs for the election of
members to the said Council, and no longer.
[is] If any member of the Legislative Council shall by writing
under his hand addressed to Our said Governor resign his
seat in the said Council or shall without the permission of Our
said Governor first obtained, fail during a whole Session to
give his attendance in the said Council or shall take any oath
or make any declaration or acknowledgment of allegiance,
obedience, or adherence to any foreign State or Power, or
shall do . . – 1 in or adopt any act whereby he may become
the Subject or Citizen of any such State or Power or shall
become a Bankrupt or an Insolvent Debtor or a Public De-
faulter or be attainted of treason or be convicted of felony
or any infamous crime or shall for the period of one month
remain a party to any contract with the Government, or if
any elective member shall accept any offer of emolument from
the Government his seat in the said Council shall thereupon
become vacant.
[19] Whenever it shall be established to the satisfaction of Our
said Governor that the seat of any elected member of the
Legislative Council has become vacant Our said Governor
shall forthwith issue a Writ for the election of a new member
to serve in the place so vacated during the remainder of the
term of the continuance of such Council, but if any question
shall arise respecting the fact of such vacancy it shall be
referred by Our said Governor to the said Council and shall
be heard and determined by them.
[20] No member of the Legislative Council shall vote or sit
therein until he shall have taken and subscribed the following
1 One word of the MS. is indistinct.
ig2 NATAL [1856
Oath before Our said Governor or some person authorized by
him to administer such Oath :
“I, A. B., do sincerely promise and swear that I will be
faithful and bear true allegiance to Her Majesty, So help me
God.”
But every person authorized by Law to make a solemn
affirmation or declaration instead of taking an Oath may
make such affirmation or declaration in lieu of the said Oath.
[21. Legislative Council to elect a Speaker subject to the
Governor’s confirmation.]
[22. Speaker to preside at meetings of Legislative Council.]
[23. Quorum of Legislative Council to be six.]
[24. Questions to be decided by majority of members present.
When votes are equal, Speaker shall have a casting vote.]
[25. Council to frame its rules and orders subject to the
Governor’s confirmation.]
[26] The Legislative Council shall not pass nor shall Our said
Governor assent to any Bill appropriating any part of the
Public Revenue for any purpose which shall not first have
been recommended to the Council by Our said Governor during
the Session in which such Bill was proposed, and no part of
the said Revenue shall be issued except in pursuance of a
Warrant under the hand of Our said Governor directed to the
Public Treasurer of the Colony.
[27. Civil List reserved. Treasurer of the Colony to account
for all revenues to the Lords Commissioners of the Treasury
of the United Kingd6m.]
[28. Governor may transmit drafts of Bills for the Legislative
Council’s consideration.]
[29] Whenever any Bill has been passed by the Legislative
Council it shall be presented to Our said Governor, who may
either return the same by message for the reconsideration of
the Council with such amendments as he may think fitting, or
may assent to the same subject to such instructions as he may
receive from Us in regard to such Bills, or may declare that he
refuses his assent to the same or that he reserves the same for
the signification of Our pleasure thereon.
[30. Laws assented to by the Governor may be disallowed
by the Crown within two years. From the date of publication
of such disallowance within the Colony such law shall be
considered null and void.]
[31] The Field-Cornet in every ward shall . . . make a true
list … of all men, who shall be … qualified to vote . . .
for members of the Legislative Council. . . .
[32] The Field-Cornet shall forthwith transmit such list to
the Resident Magistrate of the County, or Electoral District,
in which such ward is situated.
1856] CENTRAL GOVERNMENT 193
[33] When the Resident Magistrate has received such lists
from the Field-Cornet, he shall forthwith cause them to be
published, and to every list so published he shall subjoin a
notice that all objections thereto will be heard and determined
by him, at such time, or times, as Our said Governor may,
by proclamation, fix for that purpose.
[34] The Resident Magistrate, after hearing such objections,
shall strike out of the lists all names which shall have been
improperly inserted, and insert all names which shall have
been improperly omitted therein. . . .
[35] A copy of the list of voters in every ward . . . shall be
transmitted … to the Field-Cornet of such ward. . . .
[ 3 e] This list shall be called ” The Voters’ Roll ” of the
ward, and shall be brought into use on such day as may be
fixed by Our said Governor by Proclamation for that pur-
pose, and shall continue to be used for one year then next
ensuing.
[37] Any person may inspect or take a copy of such roll
gratuitously.
[38] The Field-Cornet in every ward shall, in like manner, on
the ist of July in every succeeding year, make a similar list of
all men who shall be at such time qualified to vote for members
of the Legislative Council, and the same proceedings shall be
had and taken in respect thereof, as are hereinbefore specified,
respecting the first election, and he shall give notice, as herein-
before mentioned, that objections will be heard and determined
at some time to be fixed before the twenty-first day of August
then next ensuing, and the voters’ roll shall be brought into use
as hereinbefore mentioned, on the first day of September in
every year.
[39-49. Manner of taking the poll. Precautions against false
impersonation at polling stations. Resident Magistrates to
publish the result of elections in their respective areas.]
[50. In case of an equality of votes the decision is to be
by lot.]
[51] It shall be lawful for Our said Governor by any Law to
be enacted by him with the advice of the Legislative Council
to be constituted under and by virtue of these presents to
repeal, alter or amend all or any of the provisions made by or in
virtue of these presents and to substitute other provisions in
lieu thereof, provided that no such Law shall abridge the
power hereinbefore reserved to Our said Governor of reserving
any Bill passed by the Legislative Council for the significance
of Our pleasure thereon or the power reserved to Us of dis-
allowing any Law ; and provided also that every Law shall
be reserved by Our said Governor for the significance of Our
pleasure which shall diminish the Salary of any Officer holding
13
I 9 4 NATAL [1865
Office or by which any alteration shall be made in any of the
following particulars, namely :
The respective numbers of the Elective and Non-
elective Members of the Legislative Council,
The qualifications of the said Elective Members
and of their Electors,
The Salaries annexed by the Reserved Civil List to
the Officers, Governor, Judge and Secretary for
Native Affairs, or the annual payment of Five
thousand pounds for Native purposes.
[52. Governor may, within six months of the date hereof, vary
by proclamation any of the provisions herein contained relating
to the registration of voters, to returning officers, to the issuing
of writs for elections, and to the manner of taking the poll.]
[53. Colony may be divided into counties, wards, and town-
ships.]
[54. Governor in Council may make grants of Crown lands.]
[55] AndWedo hereby authorize and empower our said Gover-
nor to constitute and appoint Judges and in cases requisite Com-
missioners of Oyer and Terminer, Justices of the Peace, and
other necessary Officers and Ministers in Our said Colony for
the due and impartial administration of Justice and for putting
the Laws into execution and to administer or cause to be ad-
ministered unto them such Oath or Oaths as are usually given
for the due execution and performance of then- offices. . . .
[56. Governor may suspend from office any official ap-
pointed by the Crown, till the Queen’s pleasure be known.]
[57. Governor may pardon any offender convicted of any
crime either freely or conditionally. He may remit certain
fines and penalties.]
[58] And We do reserve to Ourselves full power and authority
to amend, alter or revoke these Our Letters Patent as to Us shall
seem meet. In witness, etc. Witness, etc. the fifteenth day of
July.
[Schedules follow here.]
By Her Majesty’s Command.
P.R.O., Patent Roll, 20 Victoria, Part I., No. (6).
NATIVE FRANCHISE. [24 Aug. 1865 ]
No. n, 1865.
No. 114. Law. Disqualifying certain Natives from exercising
Electoral Franchise. 1
WHEREAS the numerous Natives residing in this Colony
are, by the 28th article of Her Majesty’s Instructions, given at
Cf. Native Administration Laws of 1875, I 8 7 8 a d 1887.
i86s] CENTRAL GOVERNMENT 195
Buckingham Palace on the 8th day of March 1848, under the
Royal Sign Manual and Signet, placed under special control,
and made subject to their own laws, customs and usages,
and are consequently only partially brought under the opera-
tion of the general Laws of the Colony. And whereas, by Her
Majesty’s Letters Patent given at Westminster the Fifteenth
day of July, in the Twentieth Year of Her Majesty’s Reign,
erecting Natal into a separate Colony, and amongst other
provisions therein contained constituting an Elective Legis-
lative Council for the said Colony, it is by the said Letters
Patent declared and ordained that every man above the age
of twenty-one years, save and except certain persons dis-
qualified by the provisions of the said Letters Patent, who
possesses any immovable property to the value of 50, or who
rents any such property of the yearly value of 10, and who
is duly registered, shall be entitled to vote at the election of
a member for the said Legislative Council : And whereas it
is contemplated to grant to the said Natives documentary titles
to certain lands within the said Colony by which many of
the said Natives would become possessed of the property
qualification required to exercise the electoral franchise under
the said Letters Patent ; and whereas it is deemed to be inxe-
pedient that the said Natives should, … so long as they continue
subject to the special provisions of the aforesaid 28th article
of Her Majesty’s Instructions, exercise the said privilege :
And whereas by Law No. n of 1864, entituled : ” For relieving
certain persons from the operation of Native Law,” provision
is made whereby such natives as [shall become fairly civilised]
shall be enabled … to take out certain letters of exemption by
which they become exempted from the operation of Native
Laws, Customs and Usages, and in their persons and property
become subject to the general laws of the Colony : And whereas
for the before cited reasons it is expedient by Law to exclude
such of the Native population as shall continue subject to
Native Law from claiming the electoral franchise, and to define
which of the said Natives so exempted shall be entitled to claim
the rights and privileges granted by the said Royal Letters
Patent, and in these respects to alter or amend the provisions
of the said Royal Letters Patent :
Be It Therefore Enacted by the Lieut enant-Governor of the
Colony of Natal, by and with the consent of the Legislative
Council thereof, as follows :
i. Every male native resident in this Colony or having
the necessary property qualification therein, whether subject
to the operation of the native laws, customs and usages in
force in this Colony or exempted therefrom save as in this law
is provided, shall be disqualified from becoming a duly regis-
196 NATAL [1865
tered elector, and shall not be entitled to vote at the election
of a member of the Legislative Council for any electoral district
of the Colony of Natal.
2. Any male native inhabitant of this Colony who shall
show to the satisfaction of the Lieutenant-Governor that he
has been resident in this Colony for a period of twelve years
or that he has been occasionally resident therein equivalent
to a twelve years’ residence and who shall possess the requisite
property qualification and shall have been exempted from the
operation of native law for a period of seven years, and who
shall produce to the Lieutenant-Governor a certificate signed
by three duly qualified electors of European origin as near as
may be to the form in Schedule A hereunto appended and
endorsed by a Justice of the Peace or Resident Magistrate
of the district in which such native resides, a statement to the
effect that the Justice or Resident Magistrate endorsing said
certificate has no reason to doubt the truth of said certificate
and that the persons signing it are credible persons, shall be
entitled to petition the Lieutenant-Governor of Natal for a
certificate to entitle him to be registered as a duly qualified
elector for that electoral division in the Colony in which such
native may possess the requisite property qualification.
3. The Lieutenant-Governor may direct that the applica-
tion of any such native be published in the Government Gazette
and call upon any person having objection to any such native
becoming a duly qualified elector to submit such objection in
writing to the Secretary for Native Affairs for the consideration
of the Lieutenant-Governor.
4. The Lieutenant-Governor may make such rules and
orders in and about the publication of any such application
and receiving, and entertaining, and deciding upon, any objec-
tion thereto, as may to him seem necessary.
5. The Lieutenant-Governor may, at his discretion, grant
or refuse to any native applying in manner aforesaid for
such certificate, entitling him to be registered as a duly quali-
fied elector, provided always no such certificate shall be
granted unless it shall have been published in manner de-
scribed in Clause 3, at least three months previous to the
granting thereof.
6. Every male native who shall have been exempted from
the operation of native law, customs and usages, for a period
of seven years, and who shall have obtained a certificate from
the Lieutenant-Governor entitling such native to be registered
as an elector, and who shall be possessed of the immovable
property qualification required by any law in force for the
time being in that behalf, shall be entitled to be duly regis-
tered as an elector, and when registered shall be entitled to
1869] CENTRAL GOVERNMENT 197
vote at the election of a Member of the Legislative Council
for such District in which he may possess such property.
7. Every male native to whom such certificate shall have
been granted by the Lieutenant-Governor shall so long as he
may possess the requisite property qualification and who shall
not be convicted of treason or of any infamous crime, or of
any crime which, if committed in England, would be felony,
shall, subject to the provisions of Her Majesty’s Letters Patent
given at Westminster the fifteenth day of July, in the twentieth
year of Her Majesty’s reign, or any law in force for the time
being in that behalf, be entitled to vote at the election of a
member of the Legislative Council for the district in which he
may possess such property qualification.
8. This law shall come into force and take effect on and
after the publication by proclamation of the Lieutenant-
Governor in the Government Gazette of Her Majesty’s assent to
the same.
[Schedule.]
P.R.O., C.O. 180/3
ECCLESIASTICAL GRANTS. [22 Sept. 1869.]
No. 7, 1869.
No. 115. Law. To abolish Ecclesiastical Grants from the Public
Revenue within the Colony of Natal
WHEREAS the Legislative Council of this Colony did, on
the 4th day of July 1866, pass the following resolution, viz. :
” That it is the opinion of this House that all
Annual Grants of Money now made by Government
to Ecclesiastical Bodies, or all forms of State Aid to
Religion, should cease.”
And whereas it is expedient to give permanent legal force
to aforesaid resolution, and that perfect religious equality
should be secured within the Colony, and for that purpose
that the payment of all Ecclesiastical Grants from the Public
should cease and determine.
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, by and with the advice and consent of the Legislative
Council thereof, as follows :
1. That from and after the passing of this law, no further
annual grant of money shall be made by the Government to
any person holding any ecclesiastical appointment, nor shall
any kind of State aid be given to any ecclesiastical body or
person as such, in any form or manner whatsoever, either in
land or otherwise.
2. [Present annual grants shall lapse on determination of
i 9 8 NATAL [1873
recipients’ office, except in such cases as may now be waiting
the decision of Government.]
3. [Law to take effect from the date of promulgation.]
P.R.O., C.O. 180/4.
ELECTORAL DIVISIONS. [12 July 1873.]
No. i, 1873.
No. 116. Law. To readjust the Electoral Divisions of the
Colony of Natal.
WHEREAS by the Royal Charter of Natal, bearing date the
I5th day of July 1856, it is provided in the 5ist section thereof,
that ” it shall be lawful for the Lieutenant-Governor, with the
advice of the Legislative Council, to be constituted under and
by virtue of these presents, to repeal, alter, or amend all or any
of the provisions made by or in virtue of these presents, and
to substitute other provisions in lieu thereof, under certain
reservations, among others that every Law altering ” The
respective numbers of elective and non-elective members of
the Legislative Council ” shall be reserved for the signification
of Her Majesty’s pleasure with respect thereto :
And whereas it is advisable to alter the respective numbers
of the elective and non-elective members of the Legislative
Council :
Be it therefore enacted by the Lieutenant-Governor, with
the advice and consent of the Legislative Council :
1. That Clause 7 of the said Charter shall be, and is hereby
repealed, and in lieu thereof shall be substituted as Clause 7
the words following : That the Legislative Council of Natal
shall consist of twenty members, of whom fifteen shall be
elective, and five non-elective.
2. Clause 10 of the said Charter is hereby repealed, and
in lieu thereof it is hereby enacted : That the elective
members shall be chosen by the electors of the following ten
electoral districts, that is to say :
1. Two for the County of Klip River exclusive of
the Division of Newcastle.
2. One for the Division of Newcastle.
3. One for the County of Weenen.
4. One for the County of Umvoti.
5. Two for the County of Pietermaritzburg.
6. One for the County of Durban.
7. One for the Counties of Alexandra and Alfred.
8. Two for the County of Victoria.
9. Two for the Borough of Pietermaritzburg.
10. Two for the Borough of Durban.
1875] CENTRAL GOVERNMENT 199
The threej^additional elective members, namely, one
member for the Division of Newcastle, one member for the
County of Victoria, and one member for the Counties of
Alexandra and Alfred, shall, within four months after the
promulgation of this Law, be elected in the manner provided
by the Charter for filling vacancies of elective seats, until such
time as under a general election, the returns shall be made as
elsewhere provided in the Charter. The fifth non-elective
member of the said Council shall be from time to time named
or designated in terms of the 8th section of the said Charter.
3. [First elections in new electoral districts provided for.]
4. [Law to take effect from the date of promulgation.]
P.R.O. C.0. 180/4.
CONSTITUTION AMENDMENT LAW, 1875.
[23 Sept. 1875.]
No. 3, 1875.
No. 117. Law. To increase the number of Members in the
Legislative Council of Natal.
[Preamble.]
Be It … Enacted by the Administrator of the Govern-
ment of Natal, with the advice and consent of the Legislative
Council thereof, as follows :
i. The Law No. i, 1873, shall be and the same is hereby
amended by substituting twenty-eight, instead of twenty, as
the total number of members of the Legislative Council of
Natal, and by substituting thirteen, instead of five, as the
number of non-elective members of the Legislative Council of
Natal, and the Lieutenant-Governor shall be and he is hereby
empowered from time to time to nominate and appoint accord-
ingly a further number of persons not exceeding eight to be
members of the said Legislative Council : Provided that such
further number of persons, not exceeding eight, to be nomi-
nated and appointed as non-elective members of the said Legis-
lative Council, shall be selected from persons who have been
on the Voters’ Roll for two years, and are possessed of immov-
able property of the value of One Thousand Pounds sterling, free
of all encumbrances, and shall be subject in all respects to
the i8th and igth Clauses of the Royal Charter of 1856, as
if they were elective members : Provided further, that such
requisite qualifications shall not apply to the five nominated
members holding offices of profit under the Crown : Provided
also, that the seats of the non-elective members in the said
Council shall terminate by death or resignation, or by dis-
200 NATAL [1875
solution of the Legislative Council in the same manner as
seats of elective members thereof : And provided also that
upon the dissolution of the now existing Legislative Council,
the Lieu tenant-Governor shall be and he is hereby empowered
to nominate and appoint persons to fill the entire thirteen non-
elective seats in the Legislative Council, any former Law or
Charter or nomination or appointment notwithstanding.
2. That all laws imposing taxation on the European popu-
lation shall require not less than two-thirds of the members
present to carry the affirmative.
3. That the Legislative Council shall not be competent
to proceed to the despatch of any business unless ten members
be present.
4. That this Law shall be in force for a period of five years
from and after the promulgation thereof in the Government
Gazette.
5. That four members be nominated from the Borough
of Durban, the Counties of Durban, Victoria, Alexandra,
and Alfred ; and four from the Borough of Pietermaritz-
burg, and the Counties of Pietermaritzburg, Umvoti, Weenen,
and Klip River.
6. Save so far as in conflict with this Law, all former Laws
and Charters now in existence shall be deemed to be in force
notwithstanding the passing thereof.
7. This Law shall commence and take effect from and after
the date of promulgation in the Natal Government Gazette
of Her Majesty’s assent thereto, and may be cited for all
purposes as the ” Natal Constitution Amendment Law, 1875.”
P.R.O., C.O. 180/4.
NATAL GOVERNMENT RAILWAYS.
No. 4, 1875.
No. 118. Law. To empower the Lieutenant-Governor to
make, maintain, equip, and work certain Railways in the
Colony of Natal, and to confirm a provisional Contract
entered into for the construction of the same.
P.R.O., C.O. 180/4.
No. 5, 1875.
No. 119. Law. To raise a Loan for the Construction and
Equipment of certain Railways in the Colony of Natal.
P.R.O., C.O. 180/4.
1883] CENTRAL GOVERNMENT 201
No. 6, 1875.
No. 120. Law. To provide for the taking over by the Colonial
Government of the Lines of Railway between the Point
and the Town of Durban, and between the Town of
Durban and the River Umgeni.
P.R.O., C.O. 180/4.
No. 3, 1877.
No. 121. Law. To provide for the Management and Working
of the Natal Government Railways.
P.R.O., C.O. 180/5.
No. 2, 1878.
No. 122. Law. For fixing the Fares and Rates chargeable for
the conveyance of passengers and goods by the Natal
Government Railways.
P.R.O., C.O. 180/5.
CONSTITUTION AMENDMENT LAW, 1883.
[9 March 1883.]
No. i, 1883.
No. 123. Law. To Amend the Constitution of Natal.
[First part of the Preamble is identical with that of Law
No. i of 1873.]
And Whereas by Law No. i, 1873, Section i, it is provided
and enacted that the Legislative Council of Natal shall consist
of twenty members, of whom fifteen shall be elective and five
non-elective :
And Whereas it is expedient to increase the number of
members of the Legislative Council ; and for such purposes
to amend the said Charter and the said recited Law :
Be It Therefore Enacted by the Governor of Natal, with
the advice and consent of the Legislative Council thereof, as
follows :
1. [Short title : ” Constitution Amendment Law of 1882.”]
2. [Former laws and charters to remain in force, save so
far as in conflict herewith.]
3. The Law No. i, 1873, shall be and the same is hereby
amended by substituting thirty instead of twenty as the total
number of members of the Legislative Council of Natal, of
whom twenty-three shall be elective and seven shall be non-
elective.
202 NATAL [1883
4. Clause 2 of Law i of 1873 (except in so far as it repeals
Clause 10 of the said Charter) is hereby repealed.
5. The twenty-three elective members shall be chosen by
the electors of the following ten electoral districts :
ELECTORAL DISTRICTS.
Number of
Members.
1. County of Klip River (exclusive of the
Division of New Castle) . . 2
2. Division of New Castle . . .2
3. County of Weenen . . .2
4. County of Umvoti . . .2
5. County of Pietermaritzburg . . 3
6. County of Durban . . .2
7. Counties of Alexandra and Alfred . i
8. County of Victoria . . .3
9. Borough of Pietermaritzburg . . 3
10. Borough of Durban . . .3
Total . 23
6. [Additional elective members, how to be elected.]
7. So soon as the additional elective members to serve in
the present Council shall have been returned, the Governor
shall be and he is hereby empowered to nominate and appoint
two non-elective members, in addition to those who are already
members of the Council, to have seats therein. The two
additional members shall hold their office during the Royal
pleasure ; they shall not be members of the Public Service of
the Colony ; they shall have been on the voters’ roll for at
least two years immediately prior to their appointment ; and
they shall possess immovable property, situate within the
Colony of Natal, of the value of 1000, after deducting all
mortgages and encumbrances ; and such two members shall
be subject to the provisions of the i8th and igth Clauses of
the Charter.
8. [Ten members to be a quorum.]
9. Clause 42 of the Charter shall be and is hereby amended
by substituting the word ” more ” for the word ” two.”
10. [Electors to vote in their own wards.]
11. [Governor may appoint any number of polling-places
in any one ward.]
12. [When there are no more candidates than the number
of persons to be elected, they shall be declared duly elected
without recourse to a poll.]
13. [To take effect from the date of promulgation of Her
Majesty’s assent.] P.R.O., C.O. 180/6.
1883] CENTRAL GOVERNMENT 203
FRANCHISE AMENDMENT LAW, 1883. [29 March 1883.]
No. 2, 1883.
No. 124. Law. To amend the Franchise.
[Preamble.]
1. [Short title : ” Franchise Amendment Law of 1882.”]
2. [Save so far as in conflict, former Laws and Charters
remain in force.]
3. Every male inhabitant, of three years’ residence in the
Colony of Natal, whose income, inclusive of allowances, is equal
to 8 per month, or 96 per annum, who may be disqualified
as an elector under the Charter of Natal on the sole ground
of his not possessing the property or rental qualification re-
quired by the eleventh clause of said Charter, may cause him-
self to be enrolled by the Field-Cornet of his Borough or Ward
on the list of men qualified to vote for members of the Legis-
lative Council.
4. [Electors qualified under the Law, to claim franchise
before field-cornets.]
5. [Field-cornets to make up voters’ lists.]
6. No person belonging to a class which is placed by special
legislation under the jurisdiction of special courts, or is subject
to special laws and tribunals, shall be entitled to be placed
on the Voters’ List, or to vote at the election of any member
of the Legislative Council : Provided that any such person
may be exempted from the operation of this clause by letters
of exemption granted to such person by the Governor of the
Colony : Provided, further, however, that no such letters of
exemption shall be granted except upon an application, both
written in English or Dutch and signed in European characters
by the applicant in the presence of a Resident Magistrate, a
Justice of the Peace, or other person appointed for this purpose
by the Governor, showing to the satisfaction of the Governor
that the applicant is a British subject, or a naturalised alien,
that he has resided in the Colony for three years and in the
same Borough or Ward for six months out of the seven months
preceding the date of application, and that he has not been
convicted of any treason, felony, or infamous offence, or that,
if convicted, he has received a free pardon : Provided that
such applicant shall have the qualification required by the
Charter of Natal, or by the 3rd Section of this Law, and shall,
if a Native, have been exempted from the operation of Native
Law. If any person shall in such application make any wil-
fully false statement, such person shall forfeit One Hundred
Pounds, and be for ever disqualified as an elector of Natal.
7. [This Law to be construed with the Charter of Natal.]
204 NATAL [1889
8. [To take effect from the date of promulgation of Her
Majesty’s assent.]
[Schedule.] P.R.O., C.O. 180/6.
CONSTITUTION AMENDMENT LAW, 1889.
[25 June 1889.]
No. 5, 1889.
No. 125. Law. To amend Law No. i of 1883, being the
Constitution Amendment Law, 1882.
WHEREAS it is desirable to make provision for separate
representation by Elective Members in the Legislative Council
of the Counties of Alexandra and Alfred, and in consequence
to increase the number of Elective Members :
Be it therefore enacted … as follows :
1. [Save so far as in conflict, former laws and charters
remain in force.]
2. [Electoral District of Alexandra and Alfred shall cease
to return a member.]
3. [Counties of Alexandra and Alfred to have separate
representation.]
4. [Boundaries of Alexandra and Alfred Counties.]
5. [Alexandra County to return one member.]
6. [Alfred County to return one member.]
7-8. [Present Voters’ Lists for respective counties to remain
in force till i Sept. 1889.]
9. [Previous laws and charters relating to election purposes
to apply.]
10. [After Her Majesty’s allowance shall be obtained, the
Governor shall notify a date for this law to take effect.]
P.R.O., C.O. 180/8.
RESPONSIBLE GOVERNMENT. [3 July 1893.]
No. 14, 1893.
No. 126. Law. Enacted by the GOVERNOR OF NATAL, with
the advice and consent of the LEGISLATIVE COUNCIL
thereof, to provide for the Establishment of Responsible
Government in Natal.
WHEREAS it is expedient to provide for the establishment
of Responsible Government in Natal :
Be it therefore enacted by the Governor of Natal, with
the advice and consent of the Legislative Council thereof, as
follows :
i. This Act may be cited as the ” Constitution Act of 1893.”
1893] CENTRAL GOVERNMENT 205
2. This Act shall commence and take effect at such date
as may be fixed by a Proclamation signed by the Governor
of Natal declaring that the Royal assent has been given thereto.
3. There shall be in place of the Legislative Council now
subsisting, a Legislative Council and a Legislative Assembly
as hereby constituted.
[Present Council to act until first writs for election of
Assembly are issued.]
4. [Existing Charters and Laws, as far as not repugnant to
this Law, to continue in force. 1 ]
5. It shall be lawful for Her Majesty and Her Successors,
by and with the advice and consent of the Legislative Council
and Legislative Assembly, as hereby constituted, to make
all Laws required for the peace, order and good government
of the Colony of Natal.
6. [Governor may assent, or refuse assent to Bills, or
reserve them.]
7. If at any time within two years after the Governor has
assented to any Bill in Her Majesty’s name, it shall be notified
to him through one of Her Majesty’s Principal Secretaries of
State that Her Majesty in Council has been pleased to dis-
allow the Act so assented to, the Governor shall forthwith
signify such disallowance by Message to the Legislative Council
and Legislative Assembly, or by Proclamation in the Govern-
ment Gazette, and from and after the date of such Message or
Proclamation, the said Act shall become null and void.
8. Within three months after the commencement of this
Act, and thereafter from time to time as may be necessary,
the Governor may designate such offices as he thinks fit, not
being more than six in number, to be political offices for the
purposes of this Act. Appointments to such offices shall be
made by the Governor, in the name of Her Majesty, and such
offices shall be held at Her Majesty’s pleasure, and be liable
to be vacated on political grounds.
The holders of such offices are in this Act styled Ministers,
and a Minister shall not vacate his seat in the Legislative
Council or Legislative Assembly by reason of his appointment
to or retention of any such office.
9. Every Minister shall be, or shall within four months
from the date of his appointment become, a Member of the
Legislative Council or of the Legislative Assembly, but not
more than two Ministers may be Members of the Legislative
Council.
10. Each Minister being a Member of either House shall
1 Act No. i of 1893 provided that the non-conflicting provisions of the
Natal Charter of 1856 as amended by subsequent laws were to be construed
with Law No. 14 of 1893.
206 NATAL [1893
have a right to sit and speak in both Houses, but shall vote
only in the House of which he is a Member.
11. The words ” Governor in Council ” in this Act, or any
other Act or Law appearing, shall mean the Governor acting
with the advice of the Executive Council.
12. [Session of both Houses at least once a year.]
13. [Governor to fix place and time of sessions. He may
prorogue both Houses from time to time and may dissolve the
Assembly when he thinks fit.]
14. The Legislative Council shall consist of eleven Members,
who shall be summoned in the case of the first Council by the
Governor, and thereafter from time to time by the Governor
in Council in the name of Her Majesty by instruments under
the Public Seal of the Colony.
15. No person shall be so summoned unless he shall be
of the age of 30 years or upwards, nor unless he shall have
resided in the Colony for 10 years, nor unless he shall be
the registered proprietor of immovable property within the
Colony of the value of Five Hundred Pounds in nett value
after deduction of the amount of all registered mortgages.
16. [Members of Council to sit for 10 years : but five
members of the first Council, to be decided on by lot, shall
retire after the first 5 years.]
17. [Members vacating their seats by lapse of time may
again be summoned.]
18. [Members of the Council may vacate their seats by
resignation.]
19. Members of the Legislative Council shall be summoned
from the following Districts, that is to say : Five from within
the Counties of Durban, Victoria, Alexandra, and Alfred ;
three from within the Counties of Pietermaritzburg and
Umvoti, and three from within the Counties of Weenen and
Klip River : Provided that not more than two Members shall
be chosen from within any one County.
20. [The Governor may appoint one Member to be Presi-
dent of the Council and may remove the President.]
21. [Quorum of the Council to be five.]
22. The Legislative Assembly shall consist of thirty-seven
Members, who shall be chosen by the Electors of the following
Electoral Districts :
Pietermaritzburg City . . . . 4
Pietermaritzburg County
Umgeni Division . . . .2
Lion’s River Division . . .2
Ixopo Division . . . .2
Durban Borough * . . . .4
Durban County . . . .3
1893] CENTRAL GOVERNMENT 207
Victoria County . . : V .4
Umvoti County . .-‘. . . .3
Weenen County , “, . .3
Klip River County
Klip River Division . . .3
Newcastle Division . . .3
Alexandra County . . . .2
Alfred County . . . .2
23. [Governor to issue writs for the election of Members of
the Assembly, such members to possess the same qualifications
as Members of the present Council.]
24. [Application of existing Laws for purposes of Election.]
25. Every Legislative Assembly shall continue for four
years from the day of the return of the writs for the election
of the same, and no longer : Subject, nevertheless, to be sooner
prorogued or dissolved by the Governor.
26. [Governor may transmit Bills to the Legislature.]
27. [Members’ oath of allegiance.]
28. [Legislative Assembly to elect a Speaker.]
29. [Speaker to preside.]
30. [Quorum of Assembly to be twelve.]
31. [All questions to be decided by majority of votes.]
32-
33-
34-
“Acts of a Member which may cause him to forfeit his seat.]
Contract with Government causes a member to retire.]
Vacancies to be filled forthwith.]
35. [Member of Assembly may resign his seat.]
36. [Writs for filling vacancies in Assembly to be issued by
the Speaker.]
37. [Writs during recess.]
38. [Members declared disqualified shall not sit, on penalty
of forfeiting 100.]
39. [Each house to adopt rules and orders for itself.]
40. [Salaries of officers of the Legislature.]
41. The Law No. I of 1870 l shall henceforth be construed
as if the word ” Assembly ” appears therein whenever the
word ” Council ” is used, except in the enacting clause. [Docu-
ments to be laid before the Houses.]
42. [Privileges of Members not to exceed those of Members
of the House of Commons.]
43. The commissions of the present Judges of the Supreme
Court, and Native High Court, and of all future Judges thereof
shall be, continue and remain in full force during their good
behaviour.
44. It shall be lawful, nevertheless, for Her Majesty to
remove any such Judge, upon the Address of both Houses of
the Legislature of the Colony.
1 Entitled, ” For the support of the office of Speaker . . .”
208 NATAL [1893
45. [Salaries of Judges.]
46. All taxes, imports, rates, and duties, and all territorial,
casual, and other revenues of the Crown (including royalties)
from whatever source arising within the Colony, over which
the Legislature has power of appropriation, shall form one
Consolidated Revenue Fund to be appropriated to the Public
Service of the Colony in the manner and subject to the charges
hereinafter mentioned.
47. The Consolidated Revenue Fund shall be permanently
charged with all the costs, charges, and expenses incident to
the collection, management, and receipt thereof; such cost,
charges, and expenses being subject nevertheless to be re-
viewed and audited in such manner as may from time to
time be directed by any Act of the Legislature.
48. All Bills for appropriating any part of the Consolidated
Revenue Fund or for imposing, altering, or repealing any rate,
tax, duty, or impost, shall originate in the Legislative Assembly.
49. The Legislative Council may either accept or reject
any money Bills passed by the Legislative Assembly, but
may not alter it.
50. It shall not be lawful for the Legislative Assembly to
adopt or pass any vote, resolution, or Bill for the appropriation
of any part of the Consolidated Revenue Fund, or of any rate,
tax, duty or impost to any purpose which has not been first
recommended to the said Assembly by Message of the Governor
during the Session in which such vote, resolution, or Bill is
proposed.
51. No part of the Consolidated Revenue Fund shall be
issued except in pursuance of warrants under the hand of the
Governor directed to the Treasurer.
52. There shall be payable to Her Majesty, in every year,
out of the Consolidated Revenue Fund, sums not exceeding
in the whole 21,700 sterling (Twenty-one Thousand Seven
Hundred Pounds), for defraying the expenses of the services
and purposes set forth in Schedules l A and B to this Act,
and the said several sums shall be issued by the Treasurer in
discharge of such warrants as shall from time to time be
directed to him under the hand of the Governor.
53. [Appointment to public offices to be by Governor in
Council.]
54. [Removal of Civil Servants to be by Governor in
Council.]
55. [Pensions to be granted to present official Members of
Council if they retire on political grounds. But such members
accepting any other appointment under the Crown shall forfeit
such pension in whole or in part.] P.R.O., C.O. 180/9.
1 Schedules not printed in this volume.
1893] CENTRAL GOVERNMENT 209
OFFICE OF GOVERNOR CONSTITUTED. [20 July 1893.]
No. 127. Letters Patent passed under the Great Seal of the
United Kingdom.
VICTORIA, by the Grace of God of the United King-
dom of Great Britain and Ireland, Queen, De-
fender of the Faith, Empress of India : To all
to whom these Presents shall come, Greeting:
WHEREAS by Our Letters Patent under the Great Seal of
Our United Kingdom of Great Britain and Ireland bearing date
the Fifteenth day of July 1856, We did erect the District of
Natal into a separate Colony to be called the Colony of Natal :
And Whereas by the said Letters Patent and by certain
other several Letters Patent under the said Great Seal bearing
date respectively the Twenty-second day of December 1869,
the Twenty-second day of May 1872, and the Twenty-seventh
day of October 1890, We did make provision for the Govern-
ment of Our said Colony :
And Whereas an alteration in the Constitution of Our said
Colony has been effected by a law of the Colony styled the
” Constitution Act of 1893 ” :
Now We do by these presents revoke Our said recited
Letters Patent, but without prejudice to anything lawfully
done thereunder, reserving nevertheless to Ourselves, Our
heirs and successors, full power to disallow any Law passed
by the Legislature of Our said Colony, and to signify such
disallowance through one of Our Principal Secretaries of State
at any time within two years after an authentic copy of such
laws shall have been received by Us or by one of Our Principal
Secretaries of State. And We do further hereby declare Our
will and pleasure as follows :
II. There shall be a Governor and Commander-in-Chief
in and over Our Colony of Natal (hereinafter called the Colony),
and appointments to the said office shall be made by Com-
mission under Our Sign Manual and Signet.
III. We do hereby authorise, empower, and command Our
said Governor and Commander-in-Chief (hereinafter called the
Governor) to do and execute all things that belong to his said
office, and to exercise the powers and authorities vested in him
by the said Constitution Act of 1893, or by any other Act
adding to, amending, or substituted for the same, and by
these Our Letters Patent, or by any other Our Letters Patent
adding to, amending, or substituted for the same, and by such
Commission as may be issued to him under Our Sign Manual
and Signet; and according to such Instructions as may from
time to time be given to him under Our Sign Manual and
14
210 NATAL [1893
Signet, or by Our Order in Our Privy Council, or by Us through
one of Our Principal Secretaries of State, and to such Laws
as are now or shall hereafter be in force in the Colony.
IV. Every person appointed to fill the office of Governor
shall, with all due solemnity, before entering on any of the
duties of his office, cause the Commission appointing him to be
Governor to be read and published at the seat of Government,
in the presence of the Chief Justice or some other Judge of the
Supreme Court of the Colony and of the Members of the
Executive Council thereof ; which being done, he shall then
and there take before them the Oath of Allegiance in the form
provided by an Act passed in the Session holden in the Thirty-
first and Thirty-second years of Our Reign, intituled ” An Act
to amend the Law relating to Promissory Oaths ” ; and like-
wise the usual Oath for the due execution of the office of
Governor, and for the due and impartial administration of
justice ; which Oaths the said Chief Justice or Judge is hereby
required to administer.
V. The Governor shall keep and use the Public Seal of the
Colony for sealing all things whatsoever that shall pass the
Public Seal.
VI. There shall be an Executive Council for the Colony,
and the said Council shall consist of such persons as may at
any time be Members thereof in accordance with any Law of
the Colony, and of such other persons as the Governor shall,
from time to time, in Our name and on Our behalf, but subject
to any Law, as aforesaid, appoint under the Public Seal of
the Colony to be Members of Our said Executive Council.
VII. The Governor, in Our name and on Our behalf, may
make and execute under the said Public Seal, grants and dis-
positions of lands within the Colony, subject to the Laws in
force for the time being for regulating the sale or disposal of
Crown lands.
VIII. The Governor may constitute and appoint, in Our
name and on Our behalf, all such Judges, Commissioners,
Justices of the Peace, and other necessary Officers and Ministers
in the Colony, as may be lawfully constituted or appointed by
Us.
IX. When any crime has been committed within the Colony,
or for which the offender may be tried therein, the Governor
may, as he shall see occasion, in Our name and on Our behalf,
grant a pardon to any accomplice in such crime who shall give
such information as shall lead to the conviction of the principal
offender, or of any one of such offenders, if more than one ;
and further, may grant to any offender convicted in any Court,
or before any Judge or other Magistrate within the Colony,
a pardon either free or subject to lawful conditions, or any
1893] CENTRAL GOVERNMENT
remission of the sentence passed on such offender, or any respite
of the execution of such sentence for such period as the Gover-
nor thinks fit, and further may remit any fines, penalties, or
forfeitures due or accrued to Us. Provided always that the
Governor shall in no case, except where the offence has been
of a political nature, unaccompanied by any other grave crime,
make it a condition of any pardon or remission of sentence that
the offender shall absent himself or be removed from the
Colony.
X. The Governor may, so far as We Ourselves lawfully
may, upon sufficient cause to him appearing, remove from his
office, or suspend from the exercise of the same, any person
holding any office or place within the Colony under or by virtue
of any Commission or Warrant or other instrument granted,
or which may be granted by Us or in Our name or under Our
authority.
XI. The Governor may exercise all powers lawfully belong-
ing to Us in respect of the summoning, proroguing, or dissolv-
ing any Legislative Body, which now is or hereafter may be
established within the Colony, and in respect of the appoint-
ment of members thereto.
XII. [If the office of Governor becomes vacant the duties
shall be carried out by a Lieutenant-Governor or other officer
appointed by the Crown.]
XIII. [If the Governor is absent from the Colony for
any period not exceeding one month, he shall none the less
continue to fill the office of Governor.]
XIV. [During such temporary absence the Governor may
appoint a Deputy to act for him.]
XV. [All officers, ministers, and other inhabitants shall
be aiding and assisting the Governor.]
XVI. [The term ” Governor ” shall include every person
for the time being administering the government of the
Colony.]
XVII. [Power is reserved to revoke, alter, and amend these
Letters Patent.]
XVIII. And We do direct and enjoin that these Our Letters
Patent shall be read and proclaimed at such place or places
within the Colony as the Governor shall think fit.
In witness whereof We have caused these Our Letters to
be made Patent. Witness Ourself at Westminster, the
Twentieth day of July, in the Fifty-seventh year of Our Reign.
By Warrant under the Queen’s Sign Manual.
MUIR MACKENZIE.
Statutes of Natal, ” Parliament,” p. 33.
212 NATAL [1893
GOVERNOR’S INSTRUCTIONS.
No. 128. To Our Governor and Commander-in-Chief in and
over Our Colony of Natal, or to Our Lieutenant-Governor
or other Officer for the time being administering the
Government of Our said Colony.
Given at Our Court at St. James’s, this Twentieth day
of July 1893, in the Fifty-seventh year of Our Reign.
WHEREAS by certain Letters Patent bearing even date
herewith We have constituted, ordered, and declared that
there shall be a Governor and Commander-in-Chief (therein
and hereinafter called the Governor) in and over Our Colony
of Natal (therein and hereinafter called the Colony) :
And Whereas We have thereby authorised, empowered,
and commanded the Governor to do and execute all things
that belong to his said office, and to exercise the powers and
authorities vested in him by a Law of the Colony styled the
“Constitution Act, 1893,” or by any other Act adding to, amend-
ing, or substituted for the same, and by Our said Letters
Patent, or by any other Our Letters Patent adding to, amend-
ing, or substituted for the same, and by such commission as
may be issued to him under Our Sign Manual and Signet,
and according to such instructions as may from time to time
be given to him under Our Sign Manual and Signet, or by Our
Order in Our Privy Council, or by Us through one of Our
Principal Secretaries of State, and to such Laws as are now
or shall hereafter be in force in the Colony ‘
And Whereas We did issue certain Instructions under
Our Sign Manual and Signet, bearing date the Sixteenth day
of February 1882, and certain Additional Instructions bearing
date respectively the Sixth day of June 1885 and the Sixth
day of December 1889 ; Now know you that We do hereby
revoke the aforesaid Instructions and Additional Instructions
and We do by these Our Instructions under Our Sign Manual
and Signet direct and enjoin and declare Our Will and Pleasure
as follows :
I. In these Our Instructions, unless inconsistent with the
context, the term ” Governor ” shall include every person for
the time being administering the Government of the Colony.
II. The Governor may, whenever he thinks fit, require
any person in the public service to take the Oath of Allegiance,
together with such other Oath or Oaths as may from time to
tune be prescribed by any Law in force in the Colony. The
Governor is to administer such Oaths or cause them to be
administered by some Public Officer of the Colony.
III. The Governor shall forthwith communicate these Our
Instructions to the Executive Council, and likewise all such
1893] CENTRAL GOVERNMENT 213
others, from time to time, as he shall find convenient for Our
service to impart to them.
IV. The Executive Council shall not proceed to the despatch
of business unless duly summoned by authority of the Governor,
nor unless two Members at least (exclusive of himself or of
the Member presiding) be present and assisting throughout
the whole of the meetings at which any such business shall be
despatched.
V. The Governor shall attend and preside at the meetings
of the Executive Council, unless prevented by some necessary
or reasonable cause, and in his absence such Member as may
be appointed by him in that behalf, or in the absence of such
Member the senior Member of the Executive Council actually
present shall preside ; the seniority of the Members of the said
Council being regulated according to the order of their respec-
tive appointments as Members thereof.
VI. Before exercising the powers of Supreme Chief, other
than those by Law vested in the Governor in Council, the
Governor shall acquaint his Ministers with the action which he
proposes to take, and so far as may be possible shall arrange
with them as to the course of action to be taken. The ultimate
decision must, however, in every case rest with the Governor.
VII. In the execution of all other powers and authorities
vested in him the Governor shall be guided by the advice of
the Executive Council, but if in any case he shall see sufficient
cause to dissent from the opinion of the said Council, he may
act in the exercise of his said powers and authorities in
opposition to the opinion of the Council, reporting the matter
to Us without delay, with the reasons for his so acting.
In any such case it shall be competent to any Member of
the said Council to require that there be recorded upon the
Minutes of the Council the grounds of any advice or opinion
that he may give upon the question.
VIII. The Governor shall not, except in the cases here-
under mentioned, assent in Our name to any Bill of any of the
following classes :
1. Any Bill for the divorce of persons joined together in
holy matrimony.
2. Any Bill whereby any grant of land or money, or other
donation or gratuity, may be made to himself.
3. Any Bill affecting the currency of the Colony.
4. Any Bill imposing differential duties.
5. Any Bill the provisions of which shall appear incon-
sistent with obligations imposed upon Us by Treaty.
6. Any Bill interfering with the discipline or control of
Our forces in the Colony by land or sea.
7. Any Bill of an extraordinary nature and importance,
214 NATAL [1893
whereby Our prerogative, or the rights and property of Our
subjects not residing in the Colony, or the trade and shipping
of the United Kingdom and its dependencies may be prejudiced.
8. Any Bill whereby persons not of European birth or
descent may be subjected or made liable to any disabilities or
restrictions to which persons of European birth or descent are
not also subjected or made liable.
9. Any Bill containing provisions to which Our assent has
been once refused, or which have been disallowed by Us ;
Unless he shall have previously obtained Our Instructions
upon such Bill through one of Our Principal Secretaries of
State, or unless such Bill shall contain a clause suspending the
operation of such Bill until the signification in the Colony of
Our pleasure thereupon, or unless the Governor shall have
satisfied himself that an urgent necessity exists requiring that
such Bill be brought into immediate operation, in which case
he is authorised to assent in Our name to such Bill, unless
the same shall be repugnant to the law of England, or incon-
sistent with any obligations imposed upon Us by Treaty.
But he is to transmit to Us by the earliest opportunity the
Bill so assented to, together with his reasons for assenting
thereto.
IX. Whenever any offender shall have been condemned
to suffer death by the sentence of any Court, the Governor
shall consult the Executive Council upon the case of such
offender, submitting to the Council any report that may have
been made by the Judge who tried the case ; and, whenever
it appears advisable to do so, taking measures to invite the
attendance of such Judge at the Council. The Governor
shall not pardon or reprieve any such offender unless it shall
appear to him expedient so to do, upon receiving the advice
of the Executive Council thereon ; but in all such cases he is
to decide either to extend or to withhold a pardon or reprieve,
according to his own deliberate judgment, whether the
Members of the Executive Council concur therein or other-
wise ; entering nevertheless on the Minutes of the Executive
Council, a Minute of his reasons at length in case he should
decide any such question in opposition to the judgment of the
majority of the Members thereof.
X. All commissions granted by the Governor to any
persons to be Judges, Justices of the Peace, or other officers
shall, unless otherwise provided by Law, be granted during
pleasure only.
XI. The Governor, except in the execution of any Letters
Patent or of any Commission under Our Sign Manual and
Signet, shall not upon any pretence whatever quit the Colony
without having first obtained leave from Us for so doing under
1896] CENTRAL GOVERNMENT 215
Our Sign Manual and Signet, or through one of Our Principal
Secretaries of State, unless for the purpose of visiting the
Governor of Our Colony of the Cape of Good Hope, or of
visiting some neighbouring State for periods not exceeding
one month at any one time, nor exceeding in the aggregate one
month for every year’s service in the Colony.
Statutes of Natal, ” Parliament,” p. 36.
FRANCHISE AMENDMENT ACT, 1896. [23 May 1896.]
No. 8, 1896.
No. 129. Act. To amend the Law relating to the Franchise.
WHEREAS it is expedient to amend the Law relating to
the Franchise :
Be It Therefore Enacted by the Queen’s Most Excellent
Majesty, by and with the advice and consent of the Legislative
Council and Legislative Assembly of Natal, as follows :
1. Act No. 25, 1894, shall be and the same is hereby re-
pealed.
2. Save those who come under the operation of Section 3
of this Act, no persons shall be qualified to have their names
inserted in any List of Electors, or in any Voters’ Roll, or
to vote as Electors within the meaning of Section 22 of the
Constitution Act of 1893, or of any Law relating to the election
of members of the Legislative Assembly, who (not being of
European origin) are Natives or descendants in the male line
of Natives of countries which have not hitherto possessed
elective representative institutions founded on the Parlia-
mentary Franchise, unless they shall first obtain an order from
the Governor in Council exempting them from the operation
of this Act.
3. The provisions of Section 2 of this Act shall not apply
to persons of the class mentioned in that section whose names
are rightly contained in any Voters’ Roll in force at the date of
the promulgation of this Act, and who are otherwise com-
petent and qualified as electors.
Statutes of Natal, ” Parliament,” p. 43.
No. 130. ANNEXATION OF ZULULAND. [29 Dec. 1897.]
[Cetewayo, King of the Zulus, who succeeded Panda in 1872,
kept a powerful army which was regarded as threatening to the safety
of Natal. The Governor’s demands for redress for certain acts of
provocation were not complied with, and war broke out in 1879. Soon
the greater part of Zululand became British territory, and by an arrange-
ment made in 1887 it was administered by the Governor of Natal with
216 NATAL [1897
the assistance of six magistrates in various districts supported by strong
bodies of police. This statute provided for its incorporation with the
Colony.]
ACT No. 37, 1897.
” To provide for the Annexation to the Colony of Natal of
the Territory of Zululand.”
BE IT ENACTED by the Queen’s Most Excellent Majesty,
by and with the advice and consent of the Legislative Council
and Legislative Assembly of Natal, as follows :
1. This Act may be known as ” The Zululand Annexation
Act, 1897.”
2. This Act shall not take effect unless and until the
Governor shall notify by Proclamation that it is Her Majesty’s
pleasure not to disallow the same, and thereafter it shall come
into operation upon such day as the Governor shall notify by
the same or any other Proclamation.
3. From and after the taking effect of this Act, the Territory
of Zululand shall become annexed to and shall thenceforth be
a portion of the Colony of Natal, and shall be known as the
Province of Zululand.
4. Laws for the peace, order, and good government of the
Province of Zululand may be made by Her Majesty with the
advice and consent of the Parliament of Natal, as provided
in the Constitution Act of 1893 of the Colony of Natal : Pro-
vided that save so far as is otherwise provided by this Act,
and until other and further provision shall have been made
by Parliament, the laws in force in the Territory of Zululand
immediately before the taking effect of this Act shall apply
to and be in force in the Province of Zululand.
5. All persons living in Zululand who, if in the Colony of
Natal, would enjoy franchise rights, are hereby declared to be
entitled thereto, but the exercise of such rights shall be post-
poned until the necessary provision shall have been made in
that behalf by Parliament : Provided that a Bill for such
purpose shall be submitted by the Governor to Parliament at
its next ordinary Session.
6. The Governor in Council shall have full power and
authority by Proclamation to apply to the Province of Zulu-
land any of the laws of Natal relative to :
Police,
Gaols,
Customs and Excise,
Audit,
The Post and Telegraph Service,
The Registry of Deeds,
and to repeal any existing law of Zululand relative thereto.
7. The Governor in Council may from time to time, until
1906] CENTRAL GOVERNMENT 217
the 30th June 1898, by Proclamation, make any alteration
in or addition to the Laws of Zululand, not being inconsistent
with the tenor of this Act.
8. [The Governor in Council may reconstitute the public
departments of Zululand. Pensions and rights of officers of
Zululand Government secured.]
9. [How public officers may be referred to.]
10. The powers and authority of the Crown Prosecutor of
Zululand shall be exercised subject to the authority of the
Attorney-General of Natal.
11. The Supreme Court of Natal shall not exercise juris-
diction within the Province of Zululand, or over the Courts
thereof, otherwise than in accordance with any Act or Acts
that may hereafter be passed. 1
12. [Compensation for loss of office in Zululand.]
13. All obligations, undertakings, and liabilities of the
Government of Zululand subsisting at the date when this
Act shall come into force, shall thenceforth be transferred
to, become binding upon, and be discharged by, the Govern-
ment of Natal.
14. [Engagements with Native Chiefs to be observed.]
15. [Restrictions on the sale of intoxicating liquors.]
16. [Salaries of officials in Zululand and other expenses
to be paid out of the Consolidated Revenue Fund of Natal.]
17. [Income and re venue to be payable to Natal Government.]
18. [Restrictions on alienation of Crown Lands.]
19. [Rights of certain persons practising in Natal secured.]
20. [No charge to be made for passes of natives moving
from Zululand to Natal, and vice versa.]
21. [Lands set apart for missionary, religious, or educational
purposes.]
22. [Governor’s salary raised from 4000 to 5000.]
23. [Pension to Sir Marshall Clarke in respect of services
in Zululand.] Statutes of Natal, ” Zululand,” p. 2.
No. 131. Act. To amend the Law relating to the Franchise.
[12 July 1906.]
No. 14, 1906.
[By Act No. i, 1903, certain territories forming part of the Transvaal
were annexed to Natal, viz. : The District of Vrijheid, the District of
Utrecht, and a portion of the District of Wakkerstroom. These were
called the -‘ Northern Districts ” of Natal.]
BE IT ENACTED by the King’s Most Excellent Majesty,
by and with the advice and consent of the Legislative Council
and Legislative Assembly of Natal, as follows :
1 Act No. 46 of 1898 extended the Supreme Court’s jurisdiction to Zululand,
218 NATAL [1847
1. Any person who at the date of the annexation of the
territories known as the Northern Districts of Natal, was
enrolled upon the latest list of burghers of the late South
African Republic, and entitled to vote for members of the
First Volksraad thereof, and who continues to reside in any
part of the Northern Districts, and who would otherwise be
disqualified as an elector under the Charter of Natal on the
sole ground of his not possessing the qualifications required
by the nth clause of the said Charter or by any Law or Act
amending the same, shall be entitled to be registered as a voter
in the electoral district of the Northern Territories in which
he resides at the time when the Voters Roll for such District
shall be prepared, notwithstanding that such person may
not possess the qualifications necessary to entitle him to be
registered as a voter in terms of the law.
If any such person shall hereafter become registered as a
voter in virtue of the nth clause of the said Charter, or of any
amendments thereof, the special franchise conferred upon
him by this Act shall cease.
2. This Act shall be construed together with the Royal
Letters Patent of I5th July 1856, known as the Charter of
Natal.
Acts of the Parl. of the Colony of Natal (1906), p. 50.
SECTION B.
LOCAL GOVERNMENT.
CREATION OF MUNICIPAL BOARDS. [30 March 1847.]
No. 5, 1847.
No. 132. Ordinance. Enacted by His Excellency the Right
Hon’ble the GOVERNOR OF THE CAPE OF GOOD HOPE,
with the advice and consent of the LEGISLATIVE COUNCIL,
for the creation of Municipal Boards in the Towns and
Villages of the District of Natal. 1
1-9. [Meetings of householders may be held to elect a
Committee which shall draw up municipal regulations for any
locality.]
10. [How to proceed in regard to regulations approved of
by such meeting.]
11. [How to proceed in case the Lieutenant-Governor of
1 This Ordinance may be compared with the Municipal Ordinance passed
for the Cape Colony in 1836 (p. 78). Both instruments were enacted by the
same body, hence their close similarity. Cf. No. 163.
1847] LOCAL GOVERNMENT 219
Natal shall disallow any regulations or in case householders
shall not adopt regulations amended by such Lieutenant-
Go vernor.]
12. [Mode in which regulations may be amended.]
13. [Meeting to choose Commissioners of a municipality,
how to be called.]
14. And be it enacted, that any person being the proprietor
of landed property situated within the municipality, of the
value of not less than 200, shall be eligible to be elected a
commissioner for the purposes of this ordinance.
15. [Commissioners, how to be put in nomination.]
16. [They hold office for three years, but may be re-elected.]
17-19. [Subsequent elections.]
20. [Meetings of Commissioners, when to be held.]
21. [Special meetings.]
22-25. [Appointment of treasurer and other officers.]
26. [Commissioners to have no salary or reward.]
27. [Commissioners, how to sue and be sued.]
28. [Proceedings of Commissioners to be entered in a book.]
29. [Books of accounts to be kept.]
30. [Accounts to be made up till 3ist December in every
year and to be open for public inspection.]
31. [Commissioners to call meetings for assessing rates.]
32-34. [Rates, how to be collected.]
35. [Commissioners to appoint watchmen, etc.]
36. [Watchmen, etc. to be vested with all powers and
privileges of constables.]
37-44. [Commissioners to provide fire-engines, lamp-posts,
water-pipes ; erect bridges ; repair streets ; establish markets ;
regulate pasture-lands ; assize weights and measures ; etc.]
45-
46.
47-
48.
[Penalty for wilfully injuring municipal property.]
[Commissioners to abate nuisances.]
They may enter into contracts.]
They may purchase and hire property.]
49. [Property vested in the municipality.]
50. [Property vested in Commissioners.]
51. [Offences against this Ordinance to be prosecuted in a
resident magistrate’s court.]
52. And be it enacted, that every person who is the occupier
of any house, warehouse, counting-house, shop, or office, either
as proprietor or renter, of the yearly value or rent of not less
than five pounds sterling, shall be, and be deemed and taken
to be, a resident householder within the meaning of this
ordinance, and that at the several meetings of such resident
householders as aforesaid, hereinbefore appointed and author-
220 NATAL [1854
ised to be holden, every such resident householder who shall
be personally present, shall have and be entitled to one vote
and no more ; provided always, that no female shall be
deemed to be a resident householder within the meaning of
this Ordinance, or be competent to vote at any meeting, or to
be elected to any office, and if any question shall arise at any
meeting as to the qualification of any individual to be deemed
such resident householder as aforesaid, the chairman of such
meeting shall inquire into, and summarily determine the
same, and his decision shall, for the purpose of such meeting,
but no further, be final and conclusive.
53. [Joint occupiers entitled to be considered resident
householders.]
54. [Chairman at a meeting of householders to be elected
by them.]
55. [Ordinance not to impair private rights.]
56. [Expenses of this Ordinance to be paid out of money
raised by Commissioners under its provisions.]
57. [Interpretation Clause.]
58. And be it enacted, that this Ordinance shall commence
and take effect from and after such date as shall be ap-
pointed for the commencement thereof, by any Proclamation
to be by the Lieutenant-Governor aforesaid for that purpose
issued, and posted upon, or affixed to, some public place in
Pietermaritzburg.
GOD SAVE THE QCTEEN.
P.R.O., C.O. 50/2.
MUNICIPAL CORPORATIONS. [21 April 1854.]
No. i, 1854.
No. 133. Ordinance. For establishing Municipal Corporations
within the District of Natal.
WHEREAS an Ordinance, No. 5, 1847, was passed by the
Governor of the Cape of Good Hope, with the advice and con-
sent of the Legislative Council thereof, entituled ” An Ordi-
nance for the creation of Municipal Boards in the Towns and
Villages of the District of Natal ” : And whereas great doubts
have arisen as to the legal validity of the said Ordinance, and
whereas it is necessary to remove such doubts, and at the same
time to provide for the better regulation of the Towns and
Villages of the District.
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1854] LOCAL GOVERNMENT 221
I. REPEAL OF FORMER LAWS.
1. The said Ordinance No. 5, 1847, sna ^ be, and the same is
hereby repealed, provided that all acts and deeds lawfully
done under and by virtue of the said Ordinance shall be, and
the same are hereby confirmed.
II. CREATION AND CONSTITUTION OF MUNICIPAL
CORPORATIONS.
2. Every Township within the District, having a population
of 1000 souls, shall be a Borough within the meaning of this
Ordinance, and shall be governed by a Council to be elected
in manner hereinafter mentioned.
3. In every Borough there shall be a body corporate,
which shall take and bear the name of Mayor, Councillors,
and Burgesses of such Borough, and by that name shall have
perpetual succession, and shall have a common Seal, and shall
by the Council thereof do all acts, and have and enjoy all the
rights and privileges which bodies corporate as such may do
and have, according to the law of the Kingdom of England.
4. The Council shall consist of a Mayor and seven Coun-
cillors.
5. Whenever the population of any township shall amount
to 1000 souls as aforesaid, the Lieutenant-Governor shall by
proclamation declare the same to be a Borough within the
meaning of this Ordinance, and define the boundaries thereof,
and shall, immediately after the first election .of the Council
of the said Borough, by grant under his hand and the Public
Seal, grant and convey, to the body corporate thereof, such
lands, situate within and near the town, as to him shall seem
just and proper.
III. DIVISION OF BOROUGHS INTO WARDS.
6. Every Borough shall be divided into four wards.
7. Before the first election of a Mayor or Councillors for
any Borough, under this Ordinance, the Lieutenant-Governor
shall, by Proclamation, divide the said Borough into wards,
and declare the names and boundaries thereof.
8. After the first election as aforesaid, the Council shall
from time to time, if they shall think fit, alter the names and
boundaries of such wards.
9. Two Councillors shall be elected for each ward, in manner
hereinafter mentioned.
10. Provided that the Lieutenant-Governor may, if the
increase of population of any Borough shall render such arrange-
ment necessary, by Proclamation declare that the number of
wards of such Borough shall be six instead of four, and the
222 NATAL [1854
Council shall consist of a Mayor and eleven Councillors, instead
of a Mayor and seven Councillors, but so that two Councillors
shall still be elected for each ward.
IV. QUALIFICATION OF ELECTORS.
11. Every male inhabitant of a Borough, except as here-
inafter excepted, of the age of 21 years, being duly enrolled
in manner hereinafter mentioned, who possesses any immove-
able property of the value of 25, or who shall have rented
for a continuous period of six months prior to the first day of
June, in this and every year, any such property of the yearly
value of 5 within any ward, shall be qualified to vote at the
election of Councillors for such ward.
12. [Joint occupiers of property entitled to vote.]
13. The following persons shall not be qualified to vote
at any such elections :
1. Aliens who have not been naturalized by Act of
the Imperial Parliament, or by deed of Burgher-
ship.
2. [Persons convicted of an infamous crime.]
V. MODE OF ENROLMENT.
14. [Resident magistrate to make out a Burgess Roll of
men entitled to vote in each ward of a Borough.]
15. [Burgess Roll to be made annually.]
16. [Publication of Burgess Roll and objections to the
same.]
17. [Correction of the Roll by a resident magistrate.]
18. [Roll to be used for one year.]
19. [Copy of Roll procurable.]
VI. QUALIFICATION OF COUNCILLORS.
20. No person shall be qualified to be elected a councillor
for any Borough who is not enrolled, or entitled to be enrolled,
as Burgess of the Borough under this Ordinance, and who is not
possessed in his own right, or right of his wife, of immoveable
property within the Borough, of the value of 100, over and
above all mortgages affecting the same.
21.
22.
23-
Candidates to be invited by requisition of voters.]
“No voter to sign more than one requisition.]
Names of candidates and persons signing requisition
to be published.]
VII. MANNER OF POLLING. l
24-41. [Time and manner of voting, appointment of
scrutineers, publication of election results, etc.]
1 Voting by ballot was arranged for by Act No. 13 of 1893.
1854] LOCAL GOVERNMENT 223
VIII. CORPORATE OFFICERS.
42. On the Saturday following the day of every general
election in every year, the Councillors shall elect from among
themselves, by a majority of votes, the Mayor of the Borough,
who shall hold office until the election of his successor.
43. [Mayor to be ex ojficio Justice of the Peace.]
44-46. [Vacancy in mayoralty, how to be filled.]
47. [Members of Legislative Council, office-holders of
government, and members of army and navy to be exempt
from serving as Councillors.]
48. [Office of Mayor, how forfeited.]
49. [Councillors not to enter into contracts.]
IX. POWERS OF THE COUNCIL.
50. The Council shall have power and authority to do the
following acts : [To make roads, streets, bridges, and water-
works ; prevent destruction by fire ; abate nuisances ; estab-
lish markets ; assize weights and measures ; regulate slaughter-
houses ; register carts and wagons ; make rules for the use of
common pasture lands, and establish and regulate pounds.]
51. [Council to frame bye-laws.]
52. [Council to raise funds for public works by sale or
mortgage of land.]
53. [Council may lease corporation lands for periods not
exceeding fifty years.]
54. [Similarly council may lease mines.]
55. [Lands not to be sub-let.]
X. MEETINGS OF COUNCIL.
56. [Majority of council to decide questions.]
57. [Ordinary meetings to be held once a month.]
58. [Special meeting may be called for a specified object.]
59. [Meetings to be open to the public.]
60. [Mayor, if present, to preside. In his absence, council
to elect a chairman.]
61.
62.
63-
Terson presiding to have a casting vote.]
^Minutes to be kept.]
^Minutes to be open to inspection.]
XI. APPOINTMENT OF COMMITTEES AND PUBLIC OFFICERS.
64. [Council may appoint committees out of their own
number for special purposes.]
65. [Council to appoint Town Clerk, Treasurer, etc. and fix
their salaries.]
66. One-half ofkhe cost of maintaining the Police Force for
the Borough shall be paid out of the funds belonging thereto,
224 NATAL [1861
and the other half of such cost shall be paid out of the Public
Treasury of the District.
67. [For this purpose the Council shall receive the amounts
arising from certain licenses.]
68. The said Police Force shall be under the control and
management of a Board, to be called the Borough Police
Board, which shall consist of the Resident Magistrate, the
Mayor, and one of the Councillors, elected by the Council.
69. The said Board shall, with the consent of the Lieutenant-
Governor, have power to appoint and remove constables, and
to make regulations touching their number, pay, allowances,
and duties ; and such constables shall have all such powers,
and be subject to all such liabilities as Constables may by law
have or be liable to, and shall obey all lawful directions touch-
ing the execution of their office, which they may from time to
time receive from the Resident Magistrate, or other Magis-
trates, or Justices of the Peace having jurisdiction within the
Borough.
XII. REGULATIONS REGARDING ASSESSMENTS, TOLLS, AND
DUES. [70-84.]
XIII. RIGHTS RESERVED BY THE GOVERNMENT WITHIN
THE BOROUGH.
85. [Wharves, arsenals, and other public buildings to be
considered as not forming part of any Borough.]
XIV. MISCELLANEOUS PROVISIONS.
86. [Manner of publishing notices, accounts, etc.]
87. [Penalties to be recovered before resident magistrates.]
88. [No person to be deemed an incompetent witness by
reason of his being liable to contribute to any Borough rate.]
89. [Council liable to be proceeded against.]
90. [Ordinance to take effect from the date of publication.]
[Schedules.] P.R.O., C.O. 180/1.
MUNICIPAL CORPORATIONS. [16 Aug. 1861.]
No. 21, 1861.
No. 134. Law. For improving and consolidating the Laws in
regard to Municipal Corporations. 1
[Ordinance No. i, 1854, is repealed, but substantially re-enacted by
this law, except that provision is made for the payment of mayors, the
property and occupancy qualification of electors is doubled, the property
qualification of councillors is trebled, and Councils are authorised to
1 Cf . also Law No. 19, 1872, ” To repeal and re-enact with amendments
the Laws in regard to Municipal Corporations,” not printed in full in this
volume.
I86i] LOCAL GOVERNMENT 225
issue trade licenses and employ the fees paid for the use of their re-
spective boroughs. Novel principles are contained in the following
sections :]
77. The Mayor shall hold a Court in every borough, which
Court shall be a Court of Record, and shall be designated the
” Borough Court.” Provided always, that the Mayor shall
not hold such Court until the Lieutenant-Governor shall, by
proclamation, declare that the power of holding such Court
may be applied to any borough now existing, or hereafter to
be created ; and provided, that no such proclamation shall be
issued, unless on application of the Council, founded on resolu-
tion carried by three-fourths of a full Council.
78. [In absence of mayor, Council to elect a Councillor to
hold the Borough Court.]
79. The Mayor and the said Borough Court shall, within the
limits of the borough, have all the powers, authorities, and
jurisdiction, civil and criminal, as are, by any Law or Ordinance
now in force, vested in, or possessed by any Resident Magis-
trate, or in or by the Court of such Resident Magistrate, as the
case may be : Provided that the said Mayor shall have no
power, authority, or jurisdiction in respect of any Laws in regard
to the sale, purchase, dealing, or possession of fire-arms, gun-
powder, or other munitions of war ; and provided, that the
Mayor of Durban shall not be competent to exercise the juris-
diction conferred on the Resident Magistrate of Durban by
Ordinance No. 8, 1852, entitled, ” Ordinance to extend the
jurisdiction of the Resident Magistrate of the Division or County
of Durban in Civil Cases.”
80. All Laws or Ordinances now in force, or hereafter to be
in force, except as aforesaid, and all rules now applicable to the
Resident Magistrate, or to the Courts of the Resident Magis-
trate, shall be applicable within every borough, to the Mayor,
or to the Borough Court hereby established.
81. The officers of the said Borough Court shall be appointed
by the Mayor and a majority of the Councillors of every
borough, and shall be paid out of the funds of every such
borough.
82. [The fees and charges taken shall be paid into the
Borough Funds.]
83. On the proclamation of any Borough Court under this
Law, the Resident Magistrate and the Resident Magistrate’s
Court shall cease to exercise any power, authority, or juris-
diction within the borough, in respect of any cause or action
arising within the limits of the borough.
84. [Jurisdiction of Resident Magistrate of Durban under
previous ordinances not repealed by this Law.]
85. Nothing in this Law contained shall be construed to
226 NATAL [1872
prevent the Resident Magistrate from holding the Court of
the Resident Magistrate, and from exercising the powers by
law vested in him as such Resident Magistrate for the County
or Division, in the borough town, or at any other place within
the borough.
86. [Borough Court to have no jurisdiction over the county
gaol.]
87. Every borough may establish, erect, construct, and
maintain a lock-up house, for the temporary detention of
persons arrested, and may appoint such officers as to the
Mayor and a majority of the Council of such borough, may
appear fit and necessary for the proper management and
government thereof.
P.R.O., C.O. 180/2.
MUNICIPAL CORPORATIONS.
No. 19, 1872.
No. 135. Law to repeal and re-enact with Amendments the
Laws in regard to Municipal Corporations. [20 Dec. 1872.]
[The provisions relating to the Borough Courts mentioned in Law
No. 21, 1 86 1, are omitted ; but the following clause is of special in-
terest :]
74. The Council may make such bye-laws as they shall
deem meet for the ordering of their proceedings, not being
inconsistent with the provisions of this Law, for conducting
the elections of Mayor, Councillors, and Auditors, in any cases
which may not be sufficiently provided for by this Law, and
for determining the duties of any officers, servants, and others
appointed by the Council ; and all such bye-laws as to them
shall seem meet for the more effectual exercise of the powers,
permissions, regulations, and authorities hereby given, and
for the good rule and government of the borough, and from
time to time may alter, amend, vary, or annul such bye-laws ;
and may make such regulations, and determine such punish-
ments and fines as they may consider requisite for the preven-
tion and suppression of offences, and for the better enforce-
ment of the said several bye-laws, and for the recovery of the
costs of prosecution in cases of contravention of bye-laws ;
and may give power to the police or other proper officers
summarily to arrest persons contravening such bye-laws, or
the provisions of the Vagrancy Law, No. 15, 1869, where
applicable to boroughs, and lodge them in the station-house of
the borough until they can be brought up for trial, and may
give power to the officer in charge of such station-house to take
bail in certain cases for the appearance of such persons, and
for the summary trial and conviction of offenders : Provided,
1845] COURTS OF JUSTICE 227
that no such punishment shall exceed imprisonment with or
without hard labour, and with or without spare diet, for a
period of three months, of a fine of Ten pounds sterling, or
imprisonment as aforesaid, in default of payment of any
such fine and costs : Provided, that the bye-laws in force at
the time of the passing of this Law shall, until repealed by the
Council, be and continue in force as bye-laws under this Law :
And provided always, that the superintendent of police of any
borough, or other person appointed by the Council, shall and
may at his own instance, and without obtaining permission
or certificate from the Attorney-General, prosecute in the
Resident Magistrate’s Court in the borough, for all contraven-
tions of such bye-laws and of the said Law, No. 15, 1869,
and of the Law or Ordinances in clause seventy-one mentioned,
provided such contraventions be committed in the borough.
* * *
Ordinances, . . . of Natal, ii. 941.
SECTION C.
ADMINISTRATION OF JUSTICE.
ESTABLISHMENT OF THE ROMAN-DUTCH LAW.
No. 12, 1845.
No. 136. Ordinance. Enacted by His Excellency the GOVER-
NOR OF THE CAPE OF GOOD HOPE, with the advice and
consent of the LEGISLATIVE COUNCIL thereof, for estab-
lishing the Roman-Dutch Law in and for the District
of Natal. [27 Aug. 1845.]
WHEREAS it has pleased Her Majesty the Queen, by certain
Letters Patent, bearing date 3ist day of May, in the Seventh
Year of Her Reign, to annex to this Settlement of the Cape
of Good Hope, as a part or portion thereof, the District of
Natal in South Africa : And whereas by the said Letters Patent,
it is amongst other things provided, that no law, custom, or
usage in force within this Settlement should, by virtue merely
of the said Letters Patent, extend to, or become in force, within
the said District of Natal ; but that it should be competent
for the Legislature of this Settlement, subject to the limitations,
conditions, and provisions in the said Letters Patent mentioned
or referred to, to make, ordain, and establish all such Laws and
Ordinances as to them should seem meet for the peace, order,
and good government of the said District of Natal. . . .
228 NATAL [1845
And whereas it is expedient, without awaiting the legislative
establishment within the said District, of the Court or Courts
for the administration of Justice, which is, or are, now about
to be created, to make provision for the establishment of such
Laws as are immediately and indispensably required for the
preservation, in the meantime, of peace and good order, and
the repression of violence, injury, and injustice amongst all
Persons resident in the said District : Be it therefore enacted
by the Governor of the Cape of Good Hope, with the advice
and consent of the Legislative Council thereof, that the system,
code, or body of law commonly called the Roman-Dutch
Law, as the same has been and is accepted, and administered
by the legal tribunals of the Colony of the Cape of Good Hope,
shall be, and the same is hereby, established as the law, for
the time being, of the District of Natal, (as the said District
shall, from time to time, be limited and defined by or on behalf
of Her Majesty the Queen,) and of Her Majesty’s Subjects,
and all others residing and being within the said District :
Provided, however, that nothing herein contained shall be
deemed, or taken, to establish within the said District, any
Law or Ordinance heretofore at any time made or passed in
this Colony, by or through the Local Government or Legis-
lature thereof, or to give any existing Court or Magistrate of
the said Colony, any authority or jurisdiction over or in regard
to the said District, or to prevent the said system, code, or body
of law from being hereafter added to, or altered, in regard to
the said District, by any competent authority.
And be it enacted, that it shall and may be lawful for the
Governor aforesaid to address to any one or more of Her
Majesty’s Subjects residing within the said District one or more
commission or commissions, authorizing him or them to
exercise within such District the office of a Magistrate, for the
purpose of preventing the perpetration therein of any crimes
and offences punishable by law, and for the purpose of arrest-
ing and committing to custody for trial before the certain
court or courts now about to be established within the said
District, any person or persons charged, on sufficient evidence,
with the commission of any crimes or offences within the said
District, which shall have been committed after the date of
the publication of this Ordinance in the Government Gazette,
as hereinafter mentioned : Provided always that every such
commission shall be revocable at pleasure ; and provided also,
that any person committed for trial by any such Magistrate
who shall not be brought to trial within six months from the
date of his commitment, shall, at the expiration of such term
of six months, be discharged from custody, upon entering
into his own recognizance, conditioned in such sum as shall
1845] COURTS OF JUSTICE 229
appear just and reasonable, to appear before any such court
or courts as aforesaid, when duly summoned so to do, there to
answer to any such charge as may be preferred against him.
And be it enacted, that this Ordinance shall commence and
take effect from and after the date of the promulgation thereof,
by publication thereof in the Government Gazette.
GOD SAVE THE QUEEN.
Given at the Cape of Good Hope this Twenty-seventh day
of August 1845.
By Command of His Excellency the Governor,
(Signed) JOHN MONTAGU,
Secretary to Government.
By Order of the Legislative Council,
(Signed) K. B. HAMILTON,
Clerk of the Legislative Council.
P.R.O., C.O. 50/2.
DISTRICT COURT. [16 Oct. 1845.]
No. 14, 1845.!
No. 137. Ordinance. For erecting a District Court in and for
the District of Natal.
WHEREAS in order to the due administration of justice in
the district of Natal, it is expedient that a district court of
justice should be therein erected ; Be it therefore enacted by
the Governor of the Cape of Good Hope with the advice and
consent of the Legislative Council thereof, that there shall be
erected, created and constituted, within the said district of
Natal, a certain court to be called and known as ” the District
Court of Natal.”
2. [To be a court of record.]
3. And be it enacted, that the said court shall consist of,
and be holden by and before, one judge, to be called and
known by the style and title of the Recorder 2 of the District
of Natal, and which said recorder shall, from time to time,
be nominated and appointed by Her Majesty the Queen, her
heirs and successors, in such manner and form as her said
Majesty shall deem most fitting, and which said recorder shall
be a barrister in England or Ireland, or an advocate of the
court of session in Scotland or … of the supreme court of
the colony of the Cape of Good Hope.
4. [Until such Recorder appointed by the Queen shall
arrive in Natal, the Governor shall nominate some fit person
to act as Recorder.]
1 Repealed by Law No. 10 of 1857, below.
2 By Ord. No. 18 of 1856 he was to be designated Attorney-General.
230 NATAL [1845
5. [Recorder to take oaths taken by the chief justice of
the Cape.]
16. [Lieutenant-Governor of Natal may appoint temporarily
to the office if it should fall vacant.]
7. [Recorder to hold his office during good behaviour.
Upon proof of misconduct the Lieutenant-Governor of Natal
may, with the advice of his executive council, suspend the
Recorder ; but report of such suspension is to be made forth-
with to the Governor of the Cape for transmission to Her
Majesty.]
8. [Full power is reserved to Her Majesty to confirm or
disallow such suspension ; as well as full power, upon sufficient
proof of misconduct, to remove the Recorder.]
9. [Rank and precedence of Recorder.]
10. [District Court to have a seal.]
11. [Seal to be kept by Recorder.]
12-13. [Salary of Recorder.]
14. [Officers corresponding to sheriff, registrar and master
of Cape Supreme Court, to be appointed by the Queen. Other
officers to be appointed by the Lieutenant-Governor of Natal.
All officers to hold office during the Queen’s pleasure.]
I 5~ I 9- [Admission of advocates and attorneys.]
20. [District Court to have the same jurisdiction as the
Cape Supreme Court.]
21. [District Court to judge according to laws now in force
in Natal or hereafter to be made for Natal by Parliament, by
the Privy Council or by the Legislative Council of the Cape.]
22. [Proceedings to be in open court and in the English
language. In criminal cases witnesses shall deliver their
evidence viva voce and in open court.]
23. [Criminal cases to be tried before the Recorder and
a jury of nine. No juror to be disqualified merely by reason
of his ignorance of the English language.]
24. [The chief seat of the District Court is to be Pieter-
maritzburg.]
25-26. [Recorder shall hold his court at least twice a
year in such other divisions as the Lieutenant-Governor shall
proclaim.]
27. [No sentence of the District Court involving death,
transportation or banishment shall be carried out until
approved of by the Lieutenant-Governor.]
28. And be it enacted, that it shall and may be lawful for
the district court aforesaid, in any criminal case pending in
or before the said court, after a verdict of guilty shall have
been recorded, to abstain, should the said court see cause,
from then passing sentence upon the person convicted, and to
order and direct that such case be removed from the said
1846] COURTS OF JUSTICE 231
district court to the supreme court of the Colony of the Cape
of Good Hope, for the decision, or determination, of any points
or questions of law arising in such case ; and upon such re-
moval being certified, . . . the said last-mentioned court shall
proceed to adjudge, decide or determine the said points or
questions, and shall then remit the case with its judgment,
decision or determination to the said circuit [district ?] court,
which said court shall conform to, and give effect to, the same ;
[provided that it shall not be necessary for the person con-
victed to be present in the supreme court ; meantime the
district court shall commit to prison the person convicted or
release him on bail].
29. [Rules of court to be framed by the District Court.]
30. [In all civil suits appeals may be made to the Supreme
Court of the Cape.]
3 I ~33- [Regulation of such appeals.]
34. [A case coming before the Supreme Court or the
District Court may be removed by the court concerned to the
other court.]
35. [The District Court shall see to the execution of judg-
ments, decrees, etc. pronounced by the Supreme Court and
Circuit Courts.]
36. [Certified records of cases to be supplied by one court
to the others if required.]
37. [Lieutenant-Governor of Natal to notify where and when
the District Court shall be held.]
38. [Interpretation of terms.]
39. [Ordinance to take effect from date of promulgation.]
P.R.O., C.O. 52/11 (C. of G. Hope Govt. Gaz.,
17 Oct. 1845).
FIELD-CORNETS AND CONSTABLES. [7 Jan. 1846.]
No. 5, 1846.
No. 138. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the LEGIS-
LATIVE COUNCIL thereof, for creating Field-Cornets and
Constables in and for the District of Natal.
WHEREAS it is expedient that the Lieutenant-Governor of
the district of Natal should be authorised and empowered to
appoint field-cornets and constables to act in the said district :
Be it, therefore, enacted, by the Governor of the Cape of Good
Hope, with the advice and consent of the Legislative Council
thereof, that the said Lieutenant-Governor shall have, possess
and exercise, in regard to the district of Natal, all and singular
the like powers and authorities for appointing field-cornets
and policemen, and for fixing the limits of field-cornetcies,
232 NATAL [1846
and of the bailiwicks of constables and policemen, as the
Governor aforesaid has and possesses in regard to those parts
of this colony other than the said district ; And every field-
cornet, constable and policeman so appointed as aforesaid
shall be, within his ward or bailiwick, as the case may be, an
officer of the law proper for the execution of criminal warrants,
within the meaning of Ordinance No. 18, 1845, and shall, more-
over, have and enjoy the powers and authorities, and perform
the same or similar duties as those by law belonging to field-
cornets, constables and policemen respectively, in those parts
of this colony other than the district aforesaid.
2. And be it enacted, that it shall and may be lawful for
the Lieutenant-Governor aforesaid, by any writing under his
hand, to authorise any magistrate, justice of the peace or
other person within the district of Natal, to appoint constables
and policemen respectively, in such numbers and under such
conditions and regulations as the said Lieutenant-Governor
shall, from time to time, fix and prescribe, and every con-
stable or policeman so appointed shall have and possess the
same powers and authorities as a constable or policeman
appointed directly by the said Lieutenant-Governor.
3. And be it enacted, that this Ordinance shall commence
and take effect from and after such date as shall be fixed and
appointed for the commencement thereof, by any proclama-
tion to be by the Lieutenant-Governor of the said district for
that purpose issued and posted upon, or affixed to, any public
place in Pietermauritzburg, in the said district.
GOD SAVE THE QUEEN.
P.R.O., C.O. 50/2.
JUSTICES OF THE PEACE. [7 Jan. 1846.]
No. 6, 1846.
No. 139. Ordinance. Enacted by His Excellency the
GOVERNOR OF THE CAPE OF GOOD HOPE, with the advice
and consent of the LEGISLATIVE COUNCIL thereof, for
creating Justices of the Peace within the District of Natal.
WHEREAS it is expedient that Justices of the Peace should
be appointed for the district of Natal, having the like powers
and authorities as Justices of the Peace in other parts of this
Colony : Be it therefore enacted by the Governor of the Cape
of Good Hope, with the advice and consent of the Legislative
Council thereof, that it shall and may be lawful for the
Lieutenant-Governor of the district of Natal to appoint, by
commissions under his hand and seal, Justices of the Peace
for the said district, and to assign to every such Justice of the
1846] COURTS OF JUSTICE 233
Peace as the bounds or limits within which he shall be em-
powered to act, either the whole of the said district, or such
a portion or division of the same as he, the said Lieutenant-
Governor, shall deem fitting and shall define.
2. [Justices to take oaths of allegiance and office.]
3. And be it enacted, that all and singular the clauses and
provisions contained in the 2nd and remaining sections of the
Ordinance No. 32, of 1827, entituled ” Ordinance for creating
Justices of the Peace in this Colony,” shall, except as herein-
after in this section excepted, be deemed and taken to apply
to the jurisdiction, powers, rights, and privileges of Justices of
the Peace appointed under and by virtue of this Ordinance,
and that as fully as if the said sections were herein again set
forth, and word for word repeated. Provided, however, that
when the clerk of the peace is mentioned and referred to in
the 3rd section of the said Ordinance, the Crown Prosecutor
of Natal shall be deemed and taken to be meant and intended.
4. [Justices to act as magistrates in criminal cases.]
5. [Ordinance to take effect from such date as shall be
fixed by the Lieutenant-Governor by Proclamation.]
P.R.O., C.O. 50/2.
RESIDENT MAGISTRATES. [24 April 1846.]
No. 16, 1846.
No. 140. Ordinance. Enacted by the GOVERNOR OF THE CAPE
OF GOOD HOPE, with the advice and consent of the
LEGISLATIVE COUNCIL, for creating Resident Magistrates
within the District of Natal.
WHEREAS it is expedient to provide for the more effectual
administration of justice within the district of Natal, and for
that purpose to create and establish certain inferior courts
within the same : Be it, therefore, enacted by the Governor
of the Colony of the Cape of Good Hope, with the advice and
consent of the Legislative Council thereof, that it shall and
may be lawful for the Lieutenant-Governor of the district of
Natal, from time to time, as occasion may require, to appoint
one magistrate, who shall be called ” The Resident Magistrate,”
for each and every division into which the said district of
Natal shall be divided, for the purposes of this Ordinance as
hereinafter mentioned.
2-3. [Declaration of divisions. Magistrates to take an
oath.]
4. And be it enacted, that every such Resident Magistrate
shall have juiisdiclion in all civil cases within the division
for which he shall have been appointed, wherein the sum or
234 NATAL [1846
matter in dispute shall not exceed the amount or value of 15,
and wherein the title to any lands or tenements, or any fee,
duty, or office, is not in question, or whereby rights in future
cannot be bound.
5. And be it enacted, that the said Resident Magistrate
shall have jurisdiction without appeal, in all cases of crimes
and offences wherein any person may be accused of any crime
or offence not punishable by death, banishment, or transporta-
tion : Provided, always, that it shall not be lawful for any
Resident Magistrate to punish any offender in any higher or
more severe manner than by fine not exceeding 10, and
imprisonment, with or without hard labour, for a period not
exceeding three months, and by whipping privately in prison
not exceeding 25 lashes ; except as to such crimes or offences
for the commission of which any higher or more severe punish-
ment, whether by fine or imprisonment, or both, shall be
provided, and in which jurisdiction shall be expressly given
by any special law or ordinance.
6. And be it enacted, that such Resident Magistrates shall
have jurisdiction in all cases of fines or penalties not exceeding
40, which have been, or shall be, imposed on persons for
offences by any ordinance which at any time hereafter shall
be in force in the said district of Natal, for the recovery of
which no provision repugnant to, or inconsistent with, the
provisions contained in this and the three next succeeding
sections of this Ordinance shall be expressly made in such
law or ordinance. . . .
7-9. [Proceedings in event of non-payment of fines.]
10. [Magistrates under this Ordinance to be Magistrates
within the meaning of Ordinance 18, 1845.]
11. [In what divisions offences may be tried.]
12. [Offences upon persons or property in or upon vehicles
or vessels, triable in any division through which they may
have passed.]
13. [Courts to be held on two days a week, or oftener.]
14. [To be courts of record.]
15. And be it enacted, that it shall and may be lawful for
any party conceiving himself aggrieved by any judgment or
decision of any Resident Magistrate, (save and except such
judgments or decisions as may have been made under and by
virtue of the 5th section of this Ordinance,) to appeal against
such judgment or decision to the district court of Natal ; or
otherwise, to bring the same under the review of the said
court.
16. [Public prosecutions to be conducted by the Crown
Prosecutor or other person appointed for that purpose.]
17. [Private parties may conduct their own cases.]
1849] COURTS OF JUSTICE 235
18. [But the Crown Prosecutor may take up, stay, and con-
duct further proceedings if necessary.]
19. [Magistrate may stop further proceedings in important
cases and refer them to the district court.]
20. [All sentences, documents, etc. to be in English.
Evidence to be viva voce, and in open court.]
21. [Lieutenant-Governor of Natal may separate civil
from criminal jurisdictions, and make other arrangements in
that respect.]
22. [Lieutenant-Governor, with the advice of the recorder
of Natal, may frame rules for courts.]
23. [Explanation of terms.]
24. [Ordinance to commence on proclamation by Lieutenant-
Governor.]
P.R.O., C.O. 50/2.
ADMINISTRATION OF JUSTICE AMONG NATIVES.
No. 3, 1849. (Signed) M. WEST. [23 June 1849.]
No. 141. Ordinance. 1 For repealing so much of Ordinance
No. 12, 1845, as is inconsistent with a Proclamation
issued by the Lieutenant-Governor of the District of
Natal, on the 2ist day of June 1849, and with the pro-
visions of this Ordinance ; and for providing for the better
Administration of Justice among the Natives.
WHEREAS, on the 2ist day of June 1849, the Lieutenant-
Governor issued the following Proclamation, to wit :
PROCLAMATION.
Whereas Her Most Gracious Majesty the Queen was
pleased by Instructions addressed to the Officer for the time
being administering the Government of the District of Natal,
dated at Buckingham Palace, on the Eighth day of March,
Eighteen Hundred and Forty-eight, under the Royal Sign
Manual and Signet, and with the advice of the Privy Council,
amongst other things to direct :
” Twenty-Eighth. And whereas the said District of Natal
is inhabited by numerous Tribes, Natives of the said District,
or of the Countries thereunto adjacent, whose ignorance and
habits unfit them for the duties of civilized life, and it is
necessary to place them under special control, until having
been duly capacitated to understand such duties, they may
reasonably be required to render ready obedience to the Laws
in force in the said District ; We do hereby declare it to be
Our Will and Pleasure, that you make known by Proclamation
1 Repealed by Law No. 26, 1875 (p. 247).
236 NATAL [1849
to Our loving Subjects, and all other persons residing in the
said District, that in assuming the Sovereignty thereof, We
have not interfered with or abrogated, any Law, Custom, or
Usage prevailing among the Inhabitants previously to the
assertion of Sovereignty over the said District, except so far
as the same may be repugnant to the general principles of
humanity recognized throughout the whole Civilized World,
and that We have not interfered with, or abrogated the power
which the Laws, Customs, and Usages of the Inhabitants vested
in the said Chiefs, or in any other persons in authority among
them, but that in all transactions between themselves, and in
all Crimes committed by any of them, against the Persons
or Property of any of them, the said Natives are (subject to
the Conditions already stated) to administer justice towards
each other as they had been used to do in former times.
Provided nevertheless, and We do hereby reserve to Our-
selves full power and authority as We from time to time shall
see occasion, to amend the Laws of the said Natives, and to
provide for the better administration of Justice among them,
as may be found practicable.”
Now, Therefore, I, the Lieutenant-Governor, administering
the Government of the District of Natal, do hereby so proclaim
Her Majesty’s royal will and pleasure accordingly.
GOD SAVE THE QUEEN.
Given under my hand, and the Public Seal of the District,
at Pietermaritzburg, this Twenty-first day of June 1849.
(Signed) M. WEST.
By Command of His Honour the Lieutenant-Governor,
(Signed) D. MOODIE, Secretary to Government.
And whereas, in order to give effect to Her Majesty’s
said instruction, it is necessary that the Ordinance No. 12,
1845, entitled . . . and all other laws and ordinances, in so
far as the same are at variance with, or repugnant to, Her
Majesty’s said instruction, should be repealed :
And whereas justice has been hitherto administered among
the said natives, with advantage to themselves, and to the
public peace and tranquillity of the District, by the chiefs, and
others in authority among them under the special controul,
direction, and revision, however, of an Officer hitherto de-
nominated the Diplomatic Agent, acting under the authority
and instructions of the Lieutenant-Governor, whom the several
native chiefs and tribes have hitherto regarded as their Supreme
Chief, and to whom they have voluntarily yielded the same
respect and obedience which they have been accustomed to
yield to Supreme Chiefs of their own race ; and it is expedient,
in pursuance of the power reserved by Her Majesty, to amend
1849] COURTS OF JUSTICE 237
the native laws, and provide for the better administration of
justice among them, that this salutary controul should be
continued :
1. Be it therefore enacted, that from and after the date
of the promulgation of this Ordinance, the said Ordinance,
No. 12, 1845, and all other laws and ordinances, in so far only
as the same are at variance with, or repugnant to, Her Majesty’s
said instruction, and to any of the provisions of this Ordinance,
shall be, and the same are hereby, repealed accordingly.
2. And be it enacted, that it shall and may be lawful
for the Lieutenant-Governor to appoint any fit and proper
person or persons, with authority to controul, revise, and direct
the administration of justice, according to the native law
throughout this District, or in such parts of the same as to him
may seem fit ; Provided, however, that all such fines and
forfeitures as, according to native law or usage, would accrue
to the Supreme Chief, or to such person or persons as afore-
said, shall be paid into the treasury of the District.
3. And be it enacted that there shall be an appeal to the
Lieutenant-Governor, acting with the advice of the Executive
Council of this District, for the time being, in all cases whatso-
ever, between natives, and which have been tried according
to native law, and that the decision of the said Lieutenant-
Governor, so acting as aforesaid, shall be final.
4. And be it enacted, that the Lieutenant-Governor of this
District shall hold and enjoy, over all the chiefs and natives
in this District, all the power and authority which, according
to the laws, customs, and usages of the natives, are held and
enjoyed by any supreme or paramount native chief, with
full power to appoint and remove the subordinate chiefs, or
other authorities among them.
5. And be it enacted, that all crimes heretofore com-
mitted, or which may hereafter be committed, by any of the
said natives, against the persons or property of any of them,
as well as all transactions between themselves, shall be cogniz-
able according to the native law, under the provisions of this
Ordinance, and not otherwise ; and that all acts, matters, and
things, and all decisions or judgments, heretofore done or
performed, or pronounced or executed, by any of the said chiefs,
or other persons in authority among them, or by any officer
acting under the authority of the British Government, in
pursuance of native law, usage, or custom, shall be, and the
same are hereby, ratified and confirmed subject only to the
revision, and final decision, of the Lieutenant-Governor, so
acting in appeal as aforesaid.
6. And be it enacted, that all officers, chiefs, and persons
as aforesaid, who shall so have acted as last aforesaid, prior
238 NATAL [1852
to the passing of this Ordinance, shall be, and they are hereby,
jointly and severally, indemnified, freed, and discharged,
from and against all actions, suits, prosecutions, and penalties
whatsoever, under the Colonial or Roman-Dutch Law, for or
on account, or in respect, of all or any acts, matters, and things
whatsoever, done, ordered, directed, or authorized by them, so
acting in pursuance of native law, custom, or usage.
7. And be it enacted, that all crimes, which may be deemed
repugnant to the general principles of humanity, recognized
throughout the whole civilized world, which have heretofore
been, or may hereafter be, committed by any of the said
natives, against the persons or property of any of them, shall
be only subject to prosecution in the Colonial Courts, at the
instance of the Crown Prosecutor, and not otherwise.
8. And be it enacted, that this Ordinance shall take effect
from and after the date of the promulgation thereof.
P.R.O., C.O. 180/1, and Ords., Prods., etc.,
of Natal, 1836 to 1855, p. 279.
TRIAL BY JURY. CONSTITUTION AND FORMATION
OF JURIES. [18 May 1852.]
No. 6, 1852.
No. 142. Ordinance. To amend and consolidate the Law
relative to the constitution and formation of Juries.
WHEREAS for the better and more effective administra-
tion of Justice within the District, it is expedient to amend
and consolidate the law relating to the constitution of Juries :
Be it therefore enacted by the Lieutenant-Governor of Natal,
with the advice and consent of the Legislative Council thereof,
as follows :
I. CONSTITUTION OF JURIES.
1. Every man, except as hereinafter excepted, between the
ages of 21 and 60 years, who shall possess any immovable
property of the value of 50,* or who shall rent any such pro-
perty of the yearly value of 10 l within the District, or who
shall be the son of such person, shall be qualified and liable to
serve as a juror therein.
2. The following persons shall be exempt from serving as
jurors :
ist. Members of the Executive and Legislative
Councils.
2nd. Persons holding office in the civil service of the
Government of the District.
1 These sums were changed to ^100 and ^24 respectively by Law No. 10,
1871, not printed.
1852] COURTS OF JUSTICE 239
3rd. The Officers of any Courts of Law ; all Advo-
cates and Attorneys of the same ; and all
Gaolers and Keepers of Houses of Correction.
4th. Clergymen, Priests, and Ministers of Religion.
5th. Physicians, Surgeons, and Apothecaries in actual
practice.
6th. Officers of Her Majesty’s Army and Navy on full
pay.
7th. Masters of Vessels actually employed, and
licensed Pilots.
3. No man who has been convicted of treason or any other
infamous crime, unless he shall have received a free pardon,
shall be qualified to serve on any jury.
II. FORMATION OF JURY LIST.
4-8. [How a jury list is to be framed for each division or
county.]
III. MODE OF SUMMONING JURIES.
9-15. [Sheriff or his deputy shall summon 27 jurors at
least 8 days before the court commences to sit.]
16. [Every man failing, without reasonable excuse, to
attend, is liable to a fine of 10.]
IV. FORMATION OF JURIES.
17-22. [Necessary number of jurors to be chosen by lot.]
V. THE CHALLENGING OF JURORS.
23. All challenges must be made as the name of each juror
is called and before he is sworn.
24. In criminal cases the prosecutor or the prisoner may
challenge three jurors without assigning any cause, and may
challenge any number of jurors for any of the following causes,
upon proof thereof to the satisfaction of the Court that is
to say :
ist. Want of qualification.
2nd. Consanguinity or affinity within the fourth
degree.
3rd. Favour to the prisoner or to the person entitled
to prosecute, if the Public Prosecutor does
not prosecute.
25. In civil l cases no peremptory challenge shall be allowed,
but either of the parties, or his advocate, may challenge any
number of jurors for any of the following causes, upon proof
thereof as aforesaid that is to say :
ist. For either of the two first causes mentioned in
the 24th section of this Ordinance.
1 See the next document.
240 NATAL [1852
2nd. For having directly or indirectly an interest in
the result of the case.
3rd. For being related by consanguinity or affinity,
within the fourth degree, to any person who
has an interest in the result of the case.
4th. For having previously expressed an opinion as
to the merits of the case.
26. In case there shall be reason to believe that any person,
not liable to challenge for any of the foregoing causes, is never-
theless for any reason likely to be biassed in favour of either of
the parties to the case, the Court shall, upon the motion of
either party, or his advocate, cause the names of three perscns
to be drawn from the names remaining in the ballot-box, who
shall be called triers, and shall try the impartiality of the juror
objected to, without appeal.
27. Provided that such triers shall be liable to challenge
in the same manner as jurors.
VI. MISCELLANEOUS PROVISIONS.
28. [After being charged with a case, jury to be kept
apart.]
29. [If they cannot reach a decision, the court to charge a
new jury.]
30. [Formulae for delivering verdict in criminal and civil
cases.]
31. In criminal cases the jury may acquit the prisoner of
part of the charge against him, and find him guilty of the
remainder.
32. In all cases the jury may return a special verdict, find-
ing the facts of the case and referring the law to the Court.
VII. PROVISIONAL JURY LIST.
33. [List for criminal cases to serve temporarily also for
civil cases.]
VIII. REPEAL OF FORMER LAWS.
34. The Ordinance No. 17, 1845, entituled, ” An Ordinance
for determining the Qualification of Jurors in the District of
Natal ” ; and so much of the Ordinance No. 32, 1846, en-
tituled ” An Ordinance for amending the Law regarding certain
Rules of Court,” as relates to Juries, shall be, and the same
are hereby repealed.
35. [Ordinance to take effect from the date of promulgation.]^
P.R.O., C.O. 180/1.
1852] COURTS OF JUSTICE 241
TRIAL BY JURY IN CIVIL CASES. [18 May 1852.]
No. 7, 1852. x
No. 143. Ordinance. To introduce the institution of Trial by
Jury in Civil Cases.
WHEREAS it is necessary to introduce Trial by Jury in
Civil Cases under certain circumstances :
Be it therefore enacted by the Lien tenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1. Whenever an issue of fact, except in the cases here-
inafter mentioned, shall have been joined in the District
Court or any Circuit Court, or in the Court of the Resident
Magistrate of Durban, in any civil action or cause, wherein
the sum or matter of dispute shall exceed the amount or value
of 15, the same may, upon the application of either of the
parties, his attorney or advocate in such case, be tried by a
jury in manner hereinafter mentioned.
2. No trial by jury shall be had in the following cases :
ist. Where the Plaintiff claims a provisional judgment
in virtue of any written acknowledgment of a
debt, signed by the Defendant or on his behalf.
2nd. Where a matter of record, as a judgment, or the
like, is pleaded in any Action, and the opposite
pleads that there is no such record existing.
3. Such application shall be made in writing to the Registrar
or Clerk of the Court as the case may be, seven clear days before
the day appointed for the hearing of the cause.
4. Every party making such application as aforesaid shall
at the same time pay to the Registrar or Clerk of the Court
the sum of Thirty Shillings for payment of the jury, and such
sum shall be costs in the cause.
5. [Notice of application to be given to the opposite party.]
6. [Court to be assured of such notice having been given.]
7. The jury in civil cases shall consist of seven men, whose
verdict shall be unanimous.
8. The Court shall set aside the verdict or decision of the
jury and grant a new trial upon any of the following grounds :
ist. Where the jury or any of them have received a
bribe.
2nd. Where the jury or any of them have conversed
otherwise than openly in the presence of the
Court, with any party to the cause, or the
agent, attorney, or advocate of such party,
on the subject of the trial, after having been
sworn.
1 Compare with the Cape Jury Act of 1854 (p. 122).
16
242 NATAL [1857
3rd. Where the verdict was manifestly against the
evidence, the law, or the legal instructions of
the Court.
4th. Where the Court has misdirected the jury upon
any point of law or fact ; provided objection
shall have been taken to the direction of the
Court, as to any specific point or points,
during the trial.
5th. Where the debt or damages found by the jury
are greatly too much or too little when com-
pared with the evidence.
6th. Where either of the parties has been taken by
surprise at the trial by the production of
evidence which he had no reason whatever to
anticipate.
9. The Court shall in all cases refuse to grant a new trial
except in cases in which it shall be fully satisfied that sub-
stantial justice has not been done.
10. [A party wishing to apply for a new trial shall give
notice.]
11. [Application to be made in open court.]
12. [New trial may be granted on terms imposed by court.]
13. [Court to prevent any party from addressing the jury
on points not relevant or that cannot be proved by evidence.]
14. [Jurors to receive 2s. a day for serving.]
15. All matters relating to trial by jury of civil cases not
herein expressly provided for shall be determined as nearly as
practicable according to the law and usage of England.
16. [Governor may extend provisions hereof to any court
in Natal.]
17. [Ordinance to take effect from date of promulgation.]
P.R.O., C.O. 180/1.
SUPREME AND CIRCUIT COURTS. [10 July 1857.]
No. 10, 1857.
No. 144. Law. Enacted by the Lieutenant-Go vernor of Natal,
with the advice and consent of the Legislative Council
thereof, for the better Administration of Justice within
the Colony of Natal.
WHEREAS it is expedient to make provision for the better
and more effectual administration of justice within this Colony,
and for that purpose to repeal certain laws now in force ; and
to constitute a Supreme Court of Justice, and also Circuit
Courts, to be holden in manner and form hereinafter mentioned.
Be it therefore enacted, by the Governor of Natal, by and
1857] COURTS OF JUSTICE 243
with the advice of the Legislative Council thereof, as follows,
viz. :
1. The Ordinance No. 14, 1845, entituled, ” An Ordinance
for erecting a District Court in and for the District of Natal,”
shall be, and the same is hereby, repealed.
2. [Former sentences, rules, etc. not affected.]
3. [Actions, etc. pending may be proceeded with.]
4. There shall be within this Colony a Court which shall be
called ” the Supreme Court of the Colony of Natal.”
5. The said Supreme Court shall be a Court of Record.
6. The said Supreme Court shall consist of one Chief Justice
and two Puisne Judges.
7. The said Supreme Court shall at all times be holden at
Pietermaritzburg, in the Colony of Natal.
8. The said Chief Justice and Puisne Judges shall be re-
spectively barristers in England or Ireland, or advocates of
the Court of Session in Scotland, or of the Supreme Court
of the Cape Colony, or advocates of the District Court hereto-
fore existing, or of the Supreme Court hereby created.
9. [Provisional appointment of Judges by Governor.]
10. The said Chief Justice and Puisne Judges shall respec-
tively hold office during good behaviour.
U-I2. [Salaries of Judges.]
13-14. [Court to have a seal to be kept by Chief Justice.]
15. [Officers of the Court ; Registrar and Master.]
16-19. [Wh to be admitted as advocates and attorneys.]
CIRCUIT COURTS.
20. To facilitate the holding of courts the Governor may,
by proclamation, divide the Colony into as many districts as to
him may seem fit ; and further may, from time to time, as
occasion may require, alter or amend such division.
21. Courts, to be called Circuit Courts, shall be held in
each of the districts into which the said Colony may be so
divided.
22. Each of the said Circuit Courts shall be held by and
before one of the Judges of the said Supreme Court, at such
times, and at such places, within each of the said districts, as
the Governor shall, from time to time, direct and appoint.
23. Each of the said Circuit Courts shall be a Court of
Record.
24. [Clerk of Resident Magistrate to act as Registrar of
visiting Circuit Court.]
JURISDICTION.
25. The Supreme Court of the Colony of Natal shall have
cognizance of all pleas, and jurisdiction in all causes, whether
244 NATAL [1857
civil, criminal, or mixed, arising within the said Colony, with
jurisdiction over all Her Majesty’s subjects, and all other
persons whomsoever, residing and being within the said
Colony, in as full and ample a manner, and to all intents and
purposes, as the District Court of Natal, at present existing
within the Colony, now hath.
26. Each Circuit Court shall, within the District in which
it may be holden, have and exercise all such and the same
jurisdiction, powers, and authorities, as is hereinbefore vested
in the said Supreme Court.
27. The said Supreme Court and every Circuit Court
within the district in which such latter Court may be holden,
shall have full power, authority, and jurisdiction, to review
the proceedings of all inferior Courts of Justice, and to exercise
full supervision and control over all Magistrates, and, if
necessary, to set aside or correct their proceedings.
LAWS.
28. The Supreme Court of the Colony of Natal and every
Circuit Court shall apply, judge, and determine upon, and
according to, the laws which now are, or shall hereafter be,
in force within this Colony.
29. [Proceedings to be in open Court and in English.]
30. [Two Judges to form a quorum in civil cases tried with-
out a jury.]
31. [If two Judges differ, the case shall be brought before
three Judges.]
32. [Civil cases tried by a jury, to be held before one Judge.]
33. All civil suits depending in any of the said Circuit
Courts, shall be tried and decided by the Judge of such Court
alone, except when the plaintiff or defendant has, under the
said Ordinance No. 7, 1852, applied to have such trial by a jury.
34. [Criminal cases to be tried before one Judge and a jury
of nine.]
35. [A Court in which a case is pending may remove it to
any other Court.]
36. [Manner of removing cases.]
37. [Civil suits shall be deemed to be pending when summons
shall have been served.]
38. [Criminal suits shall be pending when the indictment
has been lodged.]
APPEAL.
39. [Appeals to the Privy Council to be according to laws
which allow appeals from any other Colonial Court.]
40. [Appeal from Circuit to Supreme Court in civil cases
exceeding 20 tried without a jury.]
1857] COURTS OF JUSTICE 245
41. [Supreme Court to hear such appeal without receiving
fresh evidence.]
42. [Notice of appeal to be given.]
43. [Execution to be stayed when notice of appeal is given.]
44. [Case considered abandoned if appeal is not prosecuted
within six weeks.]
45. [Appeal in cases under the value of 20 may be allowed
in certain cases.]
46. [In civil cases exceeding 20, evidence to be taken down
by Registrar.]
47. [Copies of documents produced in such case shall be
sent to Supreme Court.]
48. The said Supreme Court of Natal shall, in all cases of
appeal from its judgment or decree in civil cases, heard and
determined without a jury, conform to and execute such
judgment or order in the premises as shall be made or given by
Her Majesty in Her Privy Council.
49. It shall not be competent for either party to any civil
suit tried and determined by a jury before the said Supreme
Court or any Circuit Court, to appeal from the verdict given
by such jury, which verdict shall be conclusive, unless set aside
as hereinafter provided.
NEW TRIAL.
50. In all civil cases tried in the said Supreme Court, or
any Circuit Court, by a jury, under the provisions of the said
Ordinance No. 7, 1852, either party wishing to set aside the
verdict of such jury, may apply for a new trial to the Supreme
Court, under and subject to the provisions of the said Ordinance.
51. The said Supreme Court shall, in granting or refusing
such new trial, conform to the provisions of the said Ordinance
No. 7, 1852.
RECORDS OF CIRCUIT COURTS.
5 2 -55 [Records to be removed to Supreme Court and
filed.]
56. [Supreme Court to carry out sentences of the late Dis-
trict Court.]
57. [Records of District Court to be handed over to Supreme
Court.]
58. [Sheriff of Natal to be appointed by Governor.]
59. [Duties of Sheriff.]
60. [Supreme Court to make rules.]
61. [Definition of terms.]
62. [Pietermaritzburg may be included in a circuit dis-
trict.]
246 NATAL [1867
63. [Persons admitted to practise in Supreme Court may
also practise in Circuit Courts.]
64. [Who may conduct cases in Circuit Courts.]
65. [As to process sued out against the Sheriff.]
66. This Law shall take effect at such date as shall by the
Governor be fixed by Proclamation.
[Schedule of Judges’ Salaries.]
P.R.O., C.O. 180/1.
PETTY DEBTS RECOVERY LAW, 1867. [4 Oct. 1867.]
No. 14, 1867.
No. 145. Law. To facilitate the recovery of small Debts and
Demands within the Colony of Natal.
WHEREAS it is expedient to facilitate the recovery of
small debts and other demands within the Colony of Natal,
and for such purpose to empower the Resident Magistrates
thereof to order and decree the incarceration of defaulting
debtors in certain cases, and to make special provisions in
relation to the same :
Be It Therefore Enacted by the Lieutenant-Governor of
Natal, with the advice and consent of the Legislative Council
thereof, as follows :
1. [Resident magistrates may order payment of civil
debts by instalments. Security for payment to be given,
unless waived by plaintiff.]
2. [Execution may be ordered for part or whole of unpaid
sum only on default in payment of any instalment.]
3. [Defendant may be summoned and examined respecting
his estate and effects, the circumstances under which the debt
was contracted, etc. ; and as to disposals he may make of
property.]
4. If the party so summoned shall not attend as required
by such summons, or shall not prove sufficient cause for not
attending, or shall, if attending, refuse to be sworn or to disclose
any of the things aforesaid, or if he shall not make answer
touching the same to the satisfaction of such Resident Magis-
trate, or it shall appear to such Resident Magistrate, either
by examination of the party, or by any other evidence, that
such party, if a defendant, in incurring the debt or liability
which is the subject of the action in which judgment has been
obtained, has obtained credit from the plaintiff under false
pretences, or by means of fraud or breach of trust, or has
wilfully contracted such debt or liability without having had
at the same time a reasonable expectation of being able to pay
or discharge the same, or if he shall have made, or caused to be
1875] COURTS OF JUSTICE 247
made, any gift, delivery, or transfer of any property, or shall
have charged, removed, or concealed the same with intent
to defraud such creditor, or any of his creditors, it shall be
lawful for such Resident Magistrate, if he shall think fit, to
order that any such party may be committed to the common
gaol of the county, district, or place in which the party so
summoned is resident, for any period not exceeding forty
days.
5. [Imprisonment not to operate as a satisfaction of the
debt, or prevent execution against property.]
6. [Messenger of Court may attach all movable property,
” excepting the wearing apparel and bedding of such person
or his family, and the tools and implements of his trade, to the
value of five pounds,” money, securities for money, etc., except
goods bona fide sold by, or to, or hired to, defendant.]
7. [Magistrate may authorize seizure of movable property
and securities for money transferred to debtor’s wife, children,
etc.]
8. [Messenger to hold securities for money. Plaintiff may
sue on them.]
9. [Judgments obtained in any Resident Magistrate’s
Court and not at once executed shall remain effectual for
five years.]
10. [Process of execution, and warrants of commitment,
may be carried into effect in any county, if endorsed by the
clerk of the magistrate’s court there.]
11. [Lieutenant-Governor to make regulations for purposes
of this law, as to persons who may act as agents, and their fees.]
12. [Persons punishable under this law may be punished
under other laws if liable thereto, but no person shall be
punished twice for the same offence.]
13. [Law to take effect after promulgation.]
P.R.O., C.O. 180/4.
NATIVE ADMINISTRATION LAW, 1875. [17 Dec. 1875.]
No. 26, 1875.
No. 146. Law. To make better provision for the Administra-
tion of Justice among the Native Population of Natal,
and for the gradual assimilation of Native Law to the
Laws of the Colony.
[Preamble.]
Be It … Enacted by the Lieutenant-Governor of the
Colony, with the advice and consent of the Legislative Council
thereof, as follows :
I. The Ordinance No. 3, 1849, entituled, ” Ordinance for
248 NATAL [1875
repealing so much of the Ordinance No. 12, 1845, as is incon-
sistent with a Proclamation issued by the Lieutenant-Governor
of the District of Natal, on the 2ist day of June 1849, and with
the provisions of this Ordinance ; and for providing for the
better administration of justice among the natives,” shall be
and the same is hereby repealed, save only and except so
far as regards all offences against and all penalties and for-
feitures incurred under said Ordinance, and all proceedings
taken or commenced before this Law shall come into operation
under or in execution of the said Ordinance, all which offences
may be prosecuted and all which penalties and forfeitures
may be enforced, and all which proceedings shall be as valid
to all intents and purposes, and may be continued, executed,
and enforced in the same manner as if this Law had not been
passed ; and save also and except so far as regards all ap-
pointments, rules, regulations, and orders made under the
said Ordinance, which, until revoked, altered, or amended,
and save so far as they are not in conflict with any of the
provisions of this Law, shall continue in force and shall be
deemed to be rules, regulations, and orders under this Law :
Provided, however, that nothing herein contained shall
interfere with the authority now exercised by Chiefs or Head-
men in any district or districts in which no appointments
have been made under the powers conferred by this Law,
or until such appointments shall have been made.
2. It shall be lawful for the Lieutenant-Governor for the
time being to appoint persons of European descent, who shall
be called Administrators of Native Law, as also Native Chiefs
or other Native Officers, to preside and exercise authority over
and to administer justice among Natives living under Native
Law, within such districts as may be hereafter determined,
and the Lieutenant-Governor shall have power summarily to
remove such Native Chiefs or other Native Officers, so ap-
pointed, and to appoint others in their stead.
3. Every Administrator of Native Law, or Native Chief, or
other Native Officer so appointed, shall have power to try
and decide all civil disputes between native and native in the
tribe or community placed under his charge, and within such
limits as may from time to time be prescribed by the Lieu-
tenant-Governor, except upon such cases as are hereinafter
excepted, or may from time to time be excepted in manner
hereinafter provided : Provided, however, that in all cases
decided by any Native Chief or other Native Officer, a new
trial may be had in conformity with such rules of procedure
as may be framed under the provisions of the loth Section of
this Law, before the Administrator of Native Law appointed
over the district in which such Native Chief or other Native
1875] COURTS OF JUSTICE 249
Officer resides, and that every such Native Chief or other
Native Officer shall within ten days after the decision of any
such civil case, communicate to the Administrator of Native
Law having jurisdiction, the names of the plaintiff and de-
fendant, the cause of the action, the decision arrived at, and
the grounds of such decision ; and each such officer is hereby
required to record the same.
4. In all such civil cases there shall be an appeal to the
Native High Court in this Law specified.
5. All matters and disputes in the nature of civil cases
between Natives living under Native Law shall be tried under
the provisions of this Law and not otherwise, and according
to Native Laws, customs, and usages for the time being pre-
vailing, so far as the same shall not be of a nature to work
some manifest injustice, or be repugnant to the settled prin-
ciples and policy of natural equity ; except that all civil cases
arising out of transactions in trade, or out of the ownership
of or succession to land, shall be adjudicated upon according
to the principles laid down by the ordinary Colonial Law in
such cases ; l Provided always, that in the district or districts
referred to in the proviso to Section i of this Law, all matters
and things required to be done and observed by an Adminis-
trator of Native Law appointed under this Law, may, and shall
be done and observed by an Administrator of Native Law
appointed under Ordinance 3, 1849, until appointments under
this Law shall have been made therein.
6. Subject to the exceptions in this Law specified, all
crimes and offences committed by Natives shall be tried before
the ordinary Courts of Law in this Colony in the same manner
as if they had been committed by persons of European descent :
Provided, however, that the following classes of crime shall be
excepted :
(a) All crimes and offences of a political character, which
shall be tried at the discretion of the Attorney-General, either
before the Supreme Court of the Colony or the Native High
Court : Provided that the Native High Court shall not have
the power of passing sentence of capital punishment.
(b) All homicides, assaults, or other injury to the person
or property of any Native caused by or arising out of riots by
Natives or faction fights between Natives, or in which any
tribe or section of a tribe or community of Natives may have
taken part, and which in the judgment of the Attorney-General
may be more conveniently tried according to the provisions of
Native Law.
(c) All crimes or offences with respect to which it has been
or may hereafter be enacted by any Law that they shall be
1 Amended by Act 44, 1887, below.
250 NATAL [1875
tried by Native Law or before any special Court. And all
crimes and offences so excepted, except those for the trial of
which special provision has been made, shall be tried by the
Native High Court in this Law specified : Provided, always,
that it shall be lawful for the Native High Court to remit
the trial of any such assault or injury aforesaid to one or more
Administrators of Native Law, and such Administrators of
Native Law may thereupon try the case subject to an appeal to
the Native High Court, whose decision shall in such case be final.
7. There shall be constituted a Court, to be termed the
Native High Court, and such High Court shall be presided over
by a Judge specially appointed by the Lieutenant-Go vernor,
and such Judge shall sit as sole Judge, or may be assisted, as
occasion may require, by Administrators of Native Law, or
Native Chiefs, or other Native Officers, as assessors, in manner
hereafter to be provided ; and such Court shall hear and try
all appeal cases from the Courts of the Administrators of Native
Law, all civil cases that may be brought before it under the
provisions of this Law, and all criminal cases, the trial of which
is in this Law specially reserved to such High Court.
8. [Judge to hold office during good behaviour.]
9. All appeals from the Native High Court shall be to a
Court of Appeal, which shall be held to be, and shall be a
branch of the Supreme Court of the Colony, and shall consist
of the Chief Justice or one of the Puisne Judges of the said
Supreme Court, the Secretary for Native Affairs for the time
being, and the Judge of the Native High Court established
under this Law ; and the Court so constituted shall hear and
determine all appeals that shall be brought before it under
the provisions of this Law.
lo. 1 The Lieutenant-Governor shall appoint a Board, con-
sisting of the Chief Justice of the Colony for the time being,
the Attorney-General, the Secretary for Native Affairs, the
Judge of the Native High Court, and any other three persons
being Magistrates or Justices of the Peace, of whom five shall
form a quorum, and such Board shall from time to time frame
rules for procedure and conduct of its own business, and for
the procedure and conduct of business in the Court of Appeal,
in the Native High Court, in the Courts of the Administrators
of Native Law, and in other Courts constituted under this
Law, and fix fines, fees, costs, charges, and pavment of wit-
nesses’ expenses, and shall also frame rules for the appoint-
ment and functions of assessors ; and shall further determine
what class of cases shall be tried in the first instance by the
several Courts, and in what cases appeals shall be allowed
from the judgment of any of the courts of the Administrators
1 Repealed by Act 44, 1887, below.
1876] COURTS OF JUSTICE 251
of Native Law, and from the Native High Court, and shall,
within a period of two years from the date of the proclamation
of this Law, reduce to writing the Native Law as at present
administered in this Colony ; and shall from time to time,
as occasion may require, propose the alteration, amendment,
or repeal of any of the provisions of the aforesaid Native
Law, and also the establishment of new provisions therein,
and the alteration, amendment, or repeal, from time to time,
of any such new provisions ; and all new provisions so pro-
posed, as well as all alterations or amendments aforesaid,
shall, by direction of the Lieutenant-Governor, be submitted
to the Legislative Council of the Colony for the approval and
sanction thereof by the said Council, to be expressed by
Resolution, and all such alterations, amendments, or new
provisions so approved and sanctioned, shall, when confirmed
by the Lieutenant-Governor and published by proclamation
in the Government Gazette, have the same force and effect as
if they had been inserted in this Law, subject always, however,
to disallowance by Her Majesty, signified through one of Her
Majesty’s Principal Secretaries of State.
11. [Proclamation of Native Law to take place when
reduced to writing.]
12. [Fines, etc. under this Law payable to Treasury.]
13. J [Governor endowed with authority of a Paramount
Chief. He may dismiss lesser Chiefs for certain political
offences.]
14. [In case of homicide, assault, or injury from native riot
or faction fight, proof of taking part in same shall be sufficient,
unless it be satisfactorily proved that accused was not guilty.]
15. l [Governor may fine a tribe or community which
combines to suppress evidence.]
16. [Short title : ” The Native Administration Law, 1875.”]
17. [To take effect from date of publication of Her Majesty’s
confirmation.] P.R.O., C.O. 180/4.
TRANSFER OF CAUSES, [n Nov. 1876.]
No. 13, 1876.
No. 147. Law. To provide for the hearing of all causes now
pending before any Court or judicial authority established
under the provisions of Ordinance No. 3, of 1849, by
transferring the hearing or further hearing of such causes
to the Native High Court established under the Native
Adminstration Law, 1875.
WHEREAS under the provisions of Ordinance 3 of 1849,
entituled [etc.], provision was made for the hearing of appeals
1 Repealed by Act 44, 1887, below.
252 NATAL [1878
in all cases whatsoever, between Natives, which had been
tried according to Native Law :
And Whereas it is desirable to facilitate the hearing of
all civil causes, matters, and proceedings so brought in appeal,
and now pending before any Court or other judicial authority
established under the provisions of the above recited Ordinance,
or otherwise, by transferring the hearing of such cases so
pending to the Native High Court, constituted under ” The
Native Administration Law, 1875,” and for such purpose to
confer certain additional powers on the said Native High
Court :
It Is Therefore Enacted, by the Lieutenant-Governor of
the Colony of Natal, by and with the advice and consent of
the Legislative Council thereof, as follows :
1. [Transfer to Native High Court of jurisdiction in appeal
cases brought under Ordinance 3, 1849, an d pending at time
of coming into force of Native Administration Law, 1875.]
2. [All such appeal cases referred for hearing to Native
High Court.]
3. [In cases already fully heard judgment may be given
by Court of Appeal constituted under Ordinance 3, 1849.]
4. [Unfinished cases to be concluded before Native High
Court.]
5. [This Law to be construed with Law 26, 1875.]
6. [To take effect after promulgation.]
P.R.O., C.O. 180/5.
NATIVE ADMINISTRATION LAW, 1878. [9 Sept. 1878.]
No. 21, 1878.
No. 148. Law. To confer upon Administrators of Native
Law, appointed under Law No. 26 of 1875, certain In-
creased Jurisdiction within their respective Districts.
[Preamble : It is desirable to confer on Administrators
of Native Law certain powers now exercised by Resident
Magistrates.]
i. Administrators of Native Law, appointed under pro-
visions of Law No. 26 of 1875, on whom the Lieutenant-
Governor shall see fit to confer the power, shall have and
exercise summary jurisdiction in the following matters and
things over Natives only, residing or being within their re-
spective divisions ; that is to say, in all minor cases of crimes
and offences wherein any person may be accused of any such
minor crime or offence : Provided always that it shall not
be lawful for any Administrator of ; Native Law to punish
any offender in any higher or more “severe manner than by
1887] COURTS OF JUSTICE 253
fine not exceeding 10, and imprisonment, with or without
hard labour, for a period not exceeding three months, except
as to such crimes or offences for the commission of which any
higher or more severe punishment, whether by fine or im-
prisonment, or both, shall be provided, and in which juris-
diction shall be expressly given by any special law ; and such
Administrators shall exercise the powers conferred upon
Justices of the Peace under and by virtue of the provisions
of Ordinance No. 6 of 1846, entituled ” Ordinance for creating
Justices of the Peace within the District of Natal.”
2. [Law to commence from date of publication.]
P.R.O., C.O. 180/5.
NATIVE ADMINISTRATION LAW, 1887.
[18 Sept. 1887.]
No. 44, 1887.
No. 149. Law. To amend the Native Administration Law,
1875.
[Preamble.]
1. [Repeal of sections 10, 13, and 15 of Law 26, 1875.]
2. [Amendment of 5th section of Law 26, 1875. In
intestacy of unexempted Natives succession to land shall be
in accordance with the Native Code.]
3. [Return of criminal cases tried by Administrators of
Native Law to be furnished to Secretary for Native Affairs,
who may alter, amend, vary, or quash any judgment.]
4. [Constitution of Board, 1 which must frame rules of pro-
cedure for Court of Appeal, Native High Court, and Courts of
Administrators of Native Law and for other courts constituted
under Law 26, 1875.]
5. [Board to have power to propose alteration or repeal of
any provisions of Native Law. Board’s proposals to be sub-
mitted to the Governor in Council, who may adopt or reject
or remit to Board for further consideration such proposals.
Proposals, when approved of, to be laid before the Legislative
Council within fourteen days after approval or after commence-
ment of session. Legislative Council may, within four weeks, by
address, object to any of the proposals ; and as far as objected
to they shall be void. Any alteration suggested in the address
may be adopted or rejected by the Governor in Council. If
no address be presented, or if the alterations be adopted, the
Governor’s sanction may, with the advice of the Executive
Council, be proclaimed.
Such new provisions so sanctioned and proclaimed in the
1 The Attorney-General, the Secretary for Native Affairs, the Judge of the
Native High Court, and two Magistrates or Justices of the Peace.
254 NATAL [1887
Government Gazette shall have effect as if inserted in this Law,
but subject to disallowance by Her Majesty.]
6. [If there be reason to. believe that there is a combination
among any tribe or community of natives to suppress evidence
of a homicide, assault, or other injury to person or property by
natives, or to conceal the perpetrator, or by passive resistance
to encourage a repetition, the Governor may enforce a fine
upon such tribe or community.]
7. [Authority of Governor as Paramount Chief. Dis-
missal or removal of a Chief found guilty of a political offence
dangerous to the public peace.]
8. [No judgment to be given against a native upon a
liquid document of debt unless it be executed with certain
formalities in the presence of a Resident Magistrate or Justice
of the Peace.]
9. [Laws Nos. 26, 1875, 21, 1878, and this Law to be read
together as one law.]
10. [To take effect on a day to be appointed by the Governor
after Her Majesty’s assent shall have been published.]
P.R.O., C.0. 180/7.
Annexure.
[Extract from Code of Native Law, passed by the Board appointed
by the Governor, under the provisions of Law No. 44 of 1887. Cf . No. 151.]
THE SUPREME CHIEF.
32. The Supreme Chief for the time being exercises in and
over all Natives in the Colony of Natal all political power and
authority, subject to the provisions of Section 7 of Law 44
of 1887.
33. The Supreme Chief appoints all Chiefs to preside over
tribes, or sections of tribes ; and also divides existing tribes
into two or more parts, or amalgamates tribes or parts of tribes
into one tribe, as necessity or the good government of the
Natives may, in his opinion, require.
34. The Supreme Chief in Council may remove any Chief
found guilty of any political offence, or for incompetency or
other just cause, from his position as such Chief, and may also
order his removal with his family and property, to another
part of the Colony.
35. The Supreme Chief has absolute power to call upon
Chiefs, District Headmen, and all other Natives, to supply
armed men or levies for the defence of the Colony, and for
the suppression of disorder and rebellion within its borders,
and may call upon such chiefs, District Headmen, and all
other Natives to personally render such military and other
service.
36. The Supreme Chief has power to call upon all Natives
COURTS OF JUSTICE 255
to supply labour for public works, or for the general needs of
the Colony. This call or command may be transmitted by
any person authorised so to do, and each native so called upon
is bound to obey such call, and render such service in person,
unless lawfully released from such duty.
37. The Supreme Chief, acting in conjunction with the
Natal Native Trust, 1 may, when deemed expedient in the
general public good, remove any tribe or tribes, or portion
thereof, or any native, from any part of the Colony or Location,
to any other part of the Colony or Location, upon such terms
and conditions and arrangements as he may determine.
38. The orders and directions of the Supreme Chief, or of
the Supreme Chief in Council, may be carried into execution
by the Secretary for Native Affairs, or by the Administrators
of Native Law, or by other officers authorised for the purpose,
and in respect of all such acts the various officers so employed
shall be regarded as the deputies or representatives of the
Supreme Chief, or of the Supreme Chief in Council, as the case
may be.
39. The Supreme Chief, in the exercise of the political
powers which attach to his office, has authority to punish by
fine or imprisonment, or by both, for disobedience of his orders
or for disregard of his authority.
40. The Supreme Chief is not subject to the Supreme Court,
or to any other court of Law in the Colony of Natal, for, or by
reason of, any order or proclamation, or of any other act or
matter whatsoever, committed, ordered, permitted, or done
either personally or in council.
41. The Supreme Chief is, by virtue of his office, Upper
Guardian of all orphans and minors in law.
42. The Supreme Chief has power to regulate and fix
from time to time the least number of houses which shall
compose a kraal. He may, in his discretion, permit of excep-
tions to any such general rule in special cases.
ParL Papers [C. 7013], p. 15.
RESIDENT MAGISTRATES. [14 Aug. 1889.]
No. 22, 1889.2
No. 150. Law. For the Establishment and Regulation of
Inferior Courts of Justice.
WHEREAS it is expedient to amend and consolidate the
1 A body consisting in practice of the Governor and the Executive Council,
to whom was entrusted the care of native rights as regards the land occupied
by them.
2 Cf. further Act. No. 22 of 1896, ” To amend and consolidate the Laws
regulating Magistrate’s Courts ” not printed in this volume. For ” Borough
Courts” vide documents Nos. 134 and 135.
256 NATAL
Laws relating to the Courts, jurisdiction, powers, duties, and
divisions of Resident Magistrates :
Be It Therefore Enacted by the Administrator of the
Government of Natal, with the advice and consent of the
Legislative Council thereof, as follows :
1. [Ordinances and Laws enumerated in the Schedule
repealed.]
2. [Interpretation of Terms.]
3-5. [Creation of Divisions, each with one Central Court
and minor or Branch Courts as may be needed. Magistrates
to be appointed by the Governor.]
6. [Clerk and Messenger of Court to be appointed by
Governor ; Deputy Messenger by Magistrate.]
CRIMINAL JURISDICTION.
7. The Magistrates shall have jurisdiction in all cases of
crimes and offences committed within their Divisions, with
the exception of High Treason, Murder, Culpable Homicide,
Rape, and Assault with intent to commit Murder or Rape,
or Assault in which a wound or injury is inflicted which has
caused serious bodily harm, Arson, Housebreaking with or
without intent to commit any crime, Theft of Stock, and any
other crime for the trial of which special Courts have been or
shall hereafter be appointed : [Provided that jurisdiction of
Magistrate shall extend in certain cases to two miles beyond
the boundary of his division.]
8. [Offences are triable in any Division through which the
person committing such offences may have passed.]
POWER OF MAGISTRATES AS TO PUNISHMENT.
9. It shall not be lawful for the Magistrates (except in
cases where greater jurisdiction may be conferred by special
Laws) to sentence or adjudge any person convicted of any
crime or offence before their Courts to any higher sentence
or punishment than the following, that is to say : To pay a
fine of Twenty Pounds, to be imprisoned with or without
hard labour for a period of six months, to receive privately
in prison a whipping of twenty lashes, or the like
number of strokes with a cane or rod. In the discretion
of a magistrate imprisonment and whipping may be
joined and form part of the same sentence, or any one of
the said classes of punishment may be awarded alone ; or
imprisonment may be awarded in conjunction with a fine as
an alternative punishment, or by way of default in the pay-
ment of any fine. Where any convicted person has been
committed to prison, or has been detained in custody merely
for the non-payment of a fine imposed upon him, payment of
1889] COURTS OF JUSTICE 257
the same during any part of his imprisonment shall entitle
such person to immediate release from custody.
10. [Females not to be whipped.]
11-20. [Procedure in Criminal Cases : Sentences of a fine
of 10 or imprisonment for 3 months, or a whipping of 15 lashes,
to be submitted to a Judge of the Supreme Court to be by
him approved, varied, or set aside.]
CIVIL JURISDICTION.
21. The Magistrates shall not have jurisdiction or cog-
nizance of any action or proceedings wherein the title to
immovable property or to any duty or office is in question and
sought to be determined, or of any actions or proceedings to
try the validity of any will or other testamentary instrument,
or of any action whereby rights in future can be bound ;
[provided that Magistrates may enquire into the validity of
marriages in certain cases.]
22. [Jurisdiction of Magistrate of Durban to extend to
cases involving 500.]
23. All Magistrates (Durban excepted) shall have juris-
diction in civil cases (save as between Natives not exempted
from Native Law, other than such cases as are hereinafter
provided in Section 44 of this Law, and save also as in the
2ist Section is mentioned) brought or instituted against any
person, firm, company, board, society, or corporation resid-
ing or being or carrying on business within their respective
Divisions, that is to say :
(a) Up to one hundred pounds, where the claim or debt
is defined by and is founded upon any bond,
bill of exchange, promissory note, good-for,
I.O.U., or other liquid document of debt, pro-
vided that no action shall be brought to recover
the principal sum due under any bond, the
security for which consists in whole or in part
of immovable property.
(b) Up to fifty pounds where the claim is for damages,
or where the claim or debt is illiquid in its
character and is due upon contract, or for goods
sold and delivered, or as balance of account or
otherwise.
24-43. [Procedure in Civil Cases.]
POWERS OF MAGISTRATES IN RELATION TO THE CUSTODY
OF CHILDREN AND OF UNMARRIED NATIVE WOMEN.
44. [Magistrate shall enquire into complaints made by
parents or guardians relative to children and unmarried
native women employed as domestic servants or otherwise
258 NATAL [1889
and not being permitted to return to their parents. Such
complaints to be determined in Magistrate’s Court.]
45. [Messenger or Constable may enforce orders to appear.]
APPEALS.
46. [In criminal cases all sentences are subject to appeal
to Supreme or to Circuit Court.]
47. [In civil cases sentences are subject to appeal to
Supreme or to Circuit Court. No appeal allowed if case
involves less amount than 5 exclusive of costs.]
48-50. [Procedure in appeal cases.]
ASSISTANT MAGISTRATES.
51. [Governor may appoint Assistant Magistrates.]
CONSTABLES.
52. [European Constables to be appointed by Governor
and vested with the usual powers.]
53. [Natives and Indians may be appointed by Magistrate
to act as Constables.]
CONTEMPT OF COURT.
54. [Contempt denned and penalty prescribed.]
LISTS OF CRIMINAL TRIALS.
55. [Monthly returns of criminal cases to be transmitted
to the Attorney-General.]
OATHS.
56. [Oaths to be taken by Magistrates and Assistant
Magistrates.]
GENERAL PROVISIONS.
57-60. [Proceedings to be viva voce, in English, and in
open court. Actions against Magistrates and their officers
to come before Supreme or Circuit Court. Advocates and
Attorneys of the Supreme Court may practise in Magistrate’s
Courts.]
61. [Framing of rules.]
62. [Law to take effect after ist January 1890.]
SCHEDULE.
[Ordinances and Laws repealed.}
Ordinance No. 16, 1846, entituled ” Ordinance for creating Resident
Magistrates within the District of Natal.”
Ordinance No. i, 1849, entituled ” Ordinance for authorising the
taking of certain Fees by the Registrar of the District Court of Natal.”
Ordinance No. 5, 1852, entituled ” Ordinance for enabling the
1891] COURTS OF JUSTICE 259
Resident Magistrate to grant process for the Arrest of Persons about
to leave the District, and the Attachment of Property about to be
removed therefrom.”
Ordinance No. 8, 1852, entituled ” Ordinance to extend the juris-
diction of the Resident Magistrate of the Division or County of Durban,
in Civil Cases.”
Ordinance No. 12, 1852, entituled ” Ordinance for enabling the
Lieutenant-Governor to appoint Assistant Resident Magistrates within
the District of Natal.”
Law No. 6, 1859, entituled “Law to provide for the holding of
Branch Courts by the Resident Magistrate.”
Law No. 14, 1867, entituled ” Law to facilitate the Recovery of
Small Debts and Demands within the Colony of Natal.”
Law No. 6, 1868, entituled ” Law to amend the Law No. 14, 1867,
entituled [as above].”
Law No. 10, 1868, entituled ” Law to extend jurisdiction of Resident
Magistrates of the Colony in Civil Cases.”
Law No. 9, 1869, entituled ” Law to amend Law No. 14, 1867,
entituled [as above].”
P.R.O., CO. 180/8.
NATIVE LAW.
No. 19, 1891.
No. 151. Law. To legalise the Code of Native Law laid before
the Legislative Council according to the provisions of
Law No. 44, 1887.
[Analysis of Code.]
1-31. [Explanation of terms.]
32-42. [Functions of the Supreme Chief. Vide Annexure, p. 254.]
43. The Secretary for Native Affairs … is the principal executive
officer of the Supreme Chief.
44. [He shall receive petitions from natives and redress grievances.]
45. [He shall, in cases of disputed chieftainship or friction between
tribes, institute inquiries for the information of the Supreme Chief.]
46. The Chief in charge of a tribe … is a minor deputy of the
Supreme Chief and a Judicial Officer . . . during the pleasure of the
Supreme Chief. . . .
47-58. [Authority of Chiefs under the Supreme Chief.]
59-65. [Authority of District Headmen responsible to the Chiefs.]
66-78 [Authority of Kraal Headmen as constables.]
78-89. [Land tenure.]
90-298. [Customary native law codified or modified, with details
of its administration.]
P.R.O., C.O. 180/8, and Statutes of Natal,
“Native Law,” p. 12.
CHAPTER III.
THE ORANGE FREE STATE.
No. 152. EMIGRANTS NORTH OF THE ORANGE RIVER :
PETITION TO COMMISSIONER CLOETE IN NATAL.
RIET RivER, 1 28th Sept. 1843.
SIR, We, the undersigned Emigrants, address ourselves
to you by petition in the name of our fellow-inhabitants of this
Colony.
We are convinced in our own minds of the liberal arrange-
ments evinced towards us by Her Majesty the Queen. We
are fully inclined and ready to act according to the tenor
thereof, and to submit ourselves to H.M.’s authority, on the
conditions issued by H.M.’s Secretary of State, Lord Stanley,
on the I3th December 1842.
With due deference we wish to call your attention to the
following considerations .
The Land which we now occupy as Emigrants, and on
which a number of Griquas and Bastards reside, extends from
the Bank of the Orange River, Northward to Modder River,
at least 20 hours on horse-back, and in its length full 30 hours
on horse-back. This piece of Land, we can assure you, was
solely inhabited by Bushmen. We doubt not but you are
aware that already in former times the Colonists have applied
for this ground to the Bushmen Captains, and that those
Bushmen Captains have agreed with them and exchanged
(or bartered) a large part of the said ground for a considerable
number of sheep and cattle. Several of those Colonists are
now here as Emigrants. As the land is watered, and the
Bushmen do not know how to cultivate it, we were desirous
to obtain quiet residences for us and our families. After this
arrangement, Dr. Philip has established a Bushman School
here, close to the Orange River for the protection of which a
small number of Griquas or Bastards was located. Where-
upon one after another encroached, and the Bushmen disap-
1 In the present territory of the O.F.S., to the south-west of Bloemfontein.
This letter represented the views of the section of trans-Orange settlers who
wished to come under British rule on certain conditions.
60
1846] THE GRIQUA STATE 261
peared. Wliile they then called themselves proprietors of the
land, and subsequently suffered much from severe seasons and
scarcity of water, we were obliged to leave the land, and
could not penetrate farther into the Country. And in order
to prevent dispute, and not to get into unpleasantness with
Government, we were obliged to hire the same ground (how-
ever vacant) from them at a high price ; aye, even to an amount
of more than 78,000 Rix-dollars ; and must frequently suffer
gross depredations and insults. We rejoice in the favourable
decision of Her Majesty that you have been appointed by Her
Majesty and invested with power and authority to ward off
and remove all disturbances. We firmly trust to your aid
and support in these our circumstances, under which we
have laboured for successive years. We would remind you
that it is not our intention (or desire) to drive the colored
people, either Griquas or Bastards, from their possessions or
dwellings. Oh no ! We grudge them not the means of support ;
but it is our wish that measures should be adopted to give us
also rights, so that we may in future enjoy a peaceable and
Christian life, and be enabled to erect a building on this ground,
which we may call a Church or House of God, for the instruc-
tion of the adult, and rearing of the young, so that we may
cherish the hope that our offspring be not devoted to the
desert.
Awaiting your reply, we conclude with a fervent prayer
that the Almighty Disposer of the Universe may bless your
Mission, and crown the same with the influence of His Spirit
and grace.
We have, etc. etc.
(Signed) M. H. OBERHOLZER ; G. J. OBERHOLZER ;
P. J. Louw ; L. A. J. v. D. HEEVER ;
W. D. JACOBS ; D. J. VAN DER MERWE ;
and 277 others.
The Honble HENRY CLOETE, Esqr., H.M. Commr.
A true Copy.
(Signed) H. CLOETE.
P.R.O., MS. in C.O. 48/246.
RECOGNITION OF THE GRIQUA STATE.
[19 Feb. 1846.]
No. 153. Treaty between Sir PEREGRINE MAITLAND and ADAM
KOK, Chief of the Philippolis Griquas.
The Governor aforesaid and the said Captain Adam Kok,
for the purpose of settling the relations between the subjects
of Her Majesty resident in the territory and the said Captain,
in such a manner as to preserve therein peace and order, by
262 ORANGE FREE STATE [1846
protecting the quiet and well-disposed, and controlling the
turbulent and ill-affected, have consented and agreed to the
following articles, which they hereby respectively ratify and
confirm :
ARTICLE i. The absolute dominion of Captain Adam Kok
over all the land hitherto received and regarded as belonging
to him, or to his people, is hereby unreservedly recognised by
the Governor, on the part of Her Majesty the Queen.
2. Without prejudice to this recognised right, Captain
Adam Kok engages to make hereby a division of his territory
into two portions : one division to consist of land in regard to
any part of which it shall not hereafter be competent for Captain
Adam Kok, or any of his people, to grant leases, or make sales,
or give any right of occupation to any British subject, or
generally, to any person of European birth or extraction ; and
the other division to consist of land which may be let on lease
to British subjects, and all others indifferently ; all leases to
British subjects, however, to be made in the manner and
under the conditions hereinafter referred to.
3. Persons who are by the last preceding article prohibited
from hiring or purchasing lands in the first or reserved division
of the Griqua territory, may, with the express permission of
the Colonial Government, but not otherwise, and then only
for the purpose of religious teaching, or that of trade or business,
receive leases of houses and buildings, or of building-erven,
situated in the said division.
4. Captain Adam Kok binds himself, for the purpose of
this treaty, to recognise as British subjects all persons of
British or Colonial birth or extraction, whether born within
the British dominions or not.
5. That portion or division of the Griqua territory to be
ultimately reserved for the Griqua nation, and in regard to
which the certain persons hereinbefore described shall not
(except as before is excepted) be allowed to purchase or obtain
leases of, or acquire any lands whatever shall be limited as
follows, that is to say : From David’s Grave, at the confluence
of the Riet and Modder Rivers ; thence along the Riet River
to where Krom Elbow Spruit falls into the said Riet River ;
thence [along] Krom Elbow Spruit to where Van Zyl’s Spruit
falls into it ; thence up Van Zyl’s Spruit to its source, from
between the Pram Bergen ; thence along a direct line to be
drawn from the neck of Pram Bergen at the source of Van
Zyl’s Spruit to Braay Paal, which line, running generally east,
holds the summit of a ridge extending from the said neck to
within about a mile from Braay Paal ; thence from Braay
Paal, the boundary between Captain Adam Kok and the land
occupied by the Chief Le Pui, to the junction of that boundary
1846] THE GRIQUA STATE 263
with Bosjes Spruit ; thence along Bosjes Spruit to where the
same falls into the Orange River; thence along the said
Orange River as far as Ramah ; and thence in a direct line
to David’s Grave aforesaid.
6. The portion or division of the Griqua territory which
may as aforesaid be leased to British subjects, and all others
indifferently, shall consist of so much of the hitherto recog-
nised Griqua territory as is not comprised within the limits in
the last preceding article set forth.
7. From and out of the last-mentioned division of territory,
the lands heretofore enjoyed by the Korannas, under the
Chief Goliat, and by the missionary station at Bethany, shall
be considered as excepted, which lands shall be preserved
inviolate for the said Chief and station.
8. It shall be the duty of the officer styled British Resident
amongst the native tribes to the north-east of the Colony, as
lately appointed by the said Governor, to exercise constant
vigilance in regard to the state and condition of the Griqua
territory, so as to secure the tranquillity thereof, to represent
Her Majesty’s Government upon the spot, to enforce order
amongst all British subjects resident in any part of the Griqua
territory, to prevent or punish all crimes or injuries meditated
or committed by any such subjects, and generally to inquire
into, and determine, all disputes which may arise between
emigrants and Griquas, so as thereby to maintain peace, and
remove all occasion of mutual apprehension and distrust.
9. In order as much as possible to co-operate with the
Colonial Government in carrying out such measures as shall
be necessary for the preservation of law and order amongst
British subjects and all others resident in the territory of
Captain Adam Kok, the following articles and provisions are
consented to and agreed upon :
10. The British Resident shall at all times be invested by
the Governor with a commission under the Act of Parliament,
5 & 6 William the 4th, cap. 57, entitled ” An Act for the
prevention and punishment of offences committed by Her
Majesty’s subjects within certain territories adjacent to the
Colony of the Cape of Good Hope,” empowering such Resident
to arrest and send into the Colony for trial any British subjects
who shall, within the Griqua territory, be guilty of any crime
or offence contrary to the provisions of the said Act.
n. Besides possessing the powers belonging to and invested
in a magistrate under the said Act, the contracting parties
to this treaty do hereby, both and each of them, constitute
and appoint the British Resident for the time being to be a
tribunal, exercising and to exercise, over the subjects of Her
Britannic Majesty residing and being within the Griqua
264 ORANGE FREE STATE [1846
territory, the certain summary criminal and civil jurisdiction
hereinafter denned ; it being expressly consented, agreed,
and declared, that whatever shall be adjudged, done, or
transacted by the said Resident, within the scope and limits
of the powers hereby conferred upon him, shall be as valid
and effectual, to all intents and purposes, as if the same had
been adjudged, done, or transacted by the said Captain Adam
Kok.
12. The British Resident shall have, in regard to crimes
and offences committed by British subjects in any part of the
Griqua territory, the like jurisdiction in all respects as a
Resident Magistrate of the Colony has under, and by virtue
of, the Ordinance No. 33 of 1827 in regard to crimes and
offences committed within the district or place for which
such Resident Magistrate shall have been appointed.
13. The’ British Resident may, in the exercise of the
summary jurisdiction in the last preceding section mentioned,
sentence any offender, when convicted, to be punished by
fine not exceeding io/., or by imprisonment, with or without
hard labour, for any period not exceeding six months, or by
such fine and such imprisonment together, as to such Resident
shall seem meet.
14. All fines imposed by the said British Resident shall,
in case of non-payment, be levied by distress and sale of the
offender’s property, and upon recovery, shall be applied in
manner and form as the quitrents hereinafter mentioned.
15. The British Resident shall, in regard to the manner of
summoning or arresting any person charged with any crime
or offence which shall appear to come within his summary
jurisdiction, and to the summoning and compelling the attend-
ance of witnesses, and the manner of proceeding in the hearing
of the case, and the place at which any sentence of imprison-
ment shall be carried into effect, and generally, in regard to the
exercise of his said jurisdiction, act according to, and carefully
observe, all such rules and regulations as shall be provided for,
or prescribed to, him by the Governor of the Cape of Good
Hope, which rules and orders the said Captain Adam Kok
engages to ratify, confirm, and establish as law within his
territory.
16. The contracting parties respectively hereby grant to
the British Resident full power and authority to appoint a
messenger for his court, a gaoler, and such constables or other
officers as may be necessary for the due execution of the judicial
functions hereby conferred upon him.
17. Captain Adam Kok engages to co-operate with the
British Resident whenever so requested by him, and to give
to the said Resident every support in his power in the discharge
1846] THE GRIQUA STATE 265
of the duties belonging to the office of such Resident. And
should it so happen that part or the whole of a spot of ground
which the British Resident may hereafter select for the purpose
of erecting a residence shall fall within the territory of Captain
Adam Kok, the said Captain hereby binds himself to allow
possession to be taken and kept of such ground for the above-
mentioned purpose, as long as it shall be required for the same.
18. Any act or proceeding injurious to person or property
which would be a crime or offence if committed by a British
subject against a Griqua, shall be deemed to be a crime or
offence when committed by a Griqua against a British subject,
and Captain Adam Kok hereby engages to have any Griqua
so offending tried and punished.
19. Captain Adam Kok engages, upon complaint made to
him, to cause any Griqua accused upon reasonable grounds
of having committed any such crime or offence, to be secured
for trial, and the British Resident is hereby authorised to
require Captain Adam Kok to fulfil this stipulation.
20. The British Resident shall be entitled to attend and be
present at the trial by Captain Adam Kok, or such other
person as may by him be deputed for the purpose, of any
Griqua accused of any crime or offence committed against
any British subject ; but the said Resident will not interfere
with the proceedings at such trial, otherwise than by offering
such suggestions touching the right and proper conduct of the
same as may seem to him to be fit and useful.
21. Whenever any Griqua shall be convicted of any such
crime or offence as aforesaid, such punishment shall be awarded
as Captain Adam Kok, after consultation with the British
Resident (should he be at or near the spot), shall deem to be
just and proper under the circumstances of the case.
22. All questions or disputes of a civil nature in which
any Griqua shall bring a claim or demand against any British
subject resident in the Griqua territory, shall be heard and
determined by the British Resident, according to right and
justice ; and the contracting parties respectively hereby
authorise and empower the said Resident so to do, and to
enforce any decision by which he shall adjudge any British
subject to pay or deliver over to any Griqua, any money or
other thing, by distress and sale of the property of the person
making default.
23. The British Resident shall, in regard to the manner of
summoning any British subject to answer any such claim or
demand, and to the summoning and compelling the attendance
of witnesses, and to the manner of proceeding in the hearing of
the case, to the mode of carrying his judgments into execution,
and generally, in regard to the exercise of the civil jurisdiction
266 ORANGE FREE STATE [1846
hereby conferred upon him, act according to, and carefully
observe, all such rules and regulations as shall be provided for,
or prescribed to, him by the Governor aforesaid, which rules
and regulations the said Captain Adam Kok engages to ratify,
confirm, and establish as law within his territory.
24. All questions and disputes of a civil nature, in which
any British subject shall bring any claim or demand against
any Griqua, shall be heard and determined by Captain Adam
Kok, according to right and justice, who engages to obtain
redress for any British subject injured.
25. It is understood and agreed that all questions relating
to the title to land, or to its occupation, whether raised by
Griqua subjects against British subjects, or by British subjects
against Griqua subjects, shall abide the determination of the
British Resident. But in all such cases, Captain Adam Kok,
or any person by him deputed, may be present and assist at
the investigation of any such case.
26. Any British subject having any such claim or demand
as aforesaid, may either repair in the first instance to Captain
Adam Kok, or to the British Resident, and the latter shall be
entitled, should he see cause so to do, to desire from Captain
Adam Kok a trial of the case, and to be present at such trial,
but not, however, to interfere thereat, beyond the mode herein-
before provided in regard to criminal cases.
27. Captain Adam Kok shall cause the British Resident to
be informed of the time and place of hearing any case, criminal
or civil, in which any British subject shall be the complainant,
and any Griqua the party complained against, and in like
manner, the British Resident shall cause Captain Adam Kok
to be informed of the time and place of hearing any case in
which any Griqua shall be the complainant, and any British
subject the party complained against ; in order that Captain
Adam Kok, or any other person by him deputed, may be
present and assisting at the trial.
28. For the purpose of this treaty, it is consented and
agreed by the contracting parties, that the term Griqua shall
comprehend and embrace any person who is, by birth or
residence, under the authority of Captain Adam Kok.
29. The British Resident aforesaid shall be charged with
the duty of settling, in conjunction with the parties interested,
the conditions and duration (not exceeding forty years) of all
intended leases to be granted to British subjects, of any lands
situated in the territory in Article No. 6, and shall also be bound
to preserve a counterpart of every such lease, and to transmit
without delay, both to the Colonial Government and the
Chief of the Griquas, an abstract, showing the particulars of the
same. But no such lease shall be capable of being assigned
1846] THE GRIQUA STATE 267
nor shall the land leased be capable of being sub-let without
the consent of the said Resident.
30. Upon every such last-mentioned lease shall be reserved
a certain annual quitrent, which quitrent shall be payable to
the British Resident, who shall be furnished by Captain Adam
Kok with all necessary powers for recovering the same.
31. One-half the amount of all such quitrents shall annually
be handed over to Captain Adam Kok, who, as often as by
Griqua law or custom any of his subjects shall, as being the
owner of any of the lands out of which any part of such quitrent
shall have arisen, be entitled to receive any proportion of the
amount so handed over, shall satisfy the demand of his said
subjects according to their rights.
32. The remaining half of the said quitrents shall be retained
by the British Resident, and be accounted for by him to the
Colonial Government, and shall be applied to defray, as far
as it will go, the expense of his establishment, together with
that of a certain protective force which it is intended to form
and place under his control, for the suppression of violence and
crime, and maintenance of his just authority.
33. In regard to British subjects now holding lands in any
part of the Griqua territory, such of them as shall not be found
by the Colonial Government to have forfeited, by some act
or acts of conspicuous criminality, either with respect to the
Griqua nation or to the royal authority of Her Majesty the
Queen (of the nature of which acts the Governor will judge),
all claim to favourable consideration shall, under the conditions
in the next, succeeding article mentioned, be permitted peace-
ably to occupy their respective holdings.
34. The conditions of such occupation as is in the last
preceding article referred to are as follows :
ist. That the claimant or the parties under whom he
derives his rights shall have originally acquired
title by a just and bonafide contract.
2ndly. That the claimant shall have already satisfied,
or be prepared to satisfy, the full consideration
stipulated for in such contract.
3rdly. That the claimant shall profess true allegiance
to Her Majesty the Queen ; and
4thly. That the claimant shall undertake to pay to the
British Resident a certain annual assessment
as hereinafter mentioned.
35. The holdings to be subject to the said assessment shall
be classified in three classes, according to certain rules of
valuation to be in that behalf prescribed by the Colonial
Government for the British Resident ; and the assessment in
268 ORANGE FREE STATE [1846
regard to the said three classes shall respectively be 3/., 2l.,
and i/. per annum.
36. The amount of such assessment shall annually be
divided in like manner, precisely as is, by the 3ist and 32nd
articles, provided in regard to the quitrents therein mentioned.
37. Upon the expiration, from time to time, of existing
leases of lands lying within the limits in article No. 5 mentioned
and set forth, it shall not be competent for Captain Adam Kok,
or any of his subjects, again to lease the said land to any
British subject, or generally to any person of European birth or
extraction ; but such land, like all others within the said limits,
shall be thenceforth reserved for the exclusive use and occupa-
tion of the Griqua people.
38. Inasmuch as the alienation of the absolute dominion of
landed property by Griqua subjects is in direct opposition to
the well-known laws and customs of the Griqua people, the
cases, if any, in which British subjects shall have purchased,
or shall purport to have purchased, the absolute dominion of
any landed property in any part of the Griqua territory, shall
be deemed to be cases of a hiring of such property for a term of
forty years from the commencement of the occupation ; and
any leases or agreements of that nature heretofore made,
which purport to be made for a longer term than forty, years,
shall be deemed to have been originally made for that term,
and no longer.
39. Captain Adam Kok upon his part engages, as often as
he shall be so required by the British Resident, to arm, and
place under the direction of that officer, such a number of his
subjects, not exceeding 300 men, as shall be demanded by the
requisition of such officer ; which force shall remain at the
disposal, and act under the orders, of the said officer, so long
as he shall deem necessary, for the purpose of assisting to
preserve peace, and repress violence and outrage, either in
the territory of Captain Adam Kok or in the territory of any
neighbouring tribe or nation, which tribe or nation shall itself
be bound by treaty to furnish in the same manner, and accord-
ing to its strength, a contingent force of the same character.
40. The Colonial Government, besides organising such a
force under the command of the British Resident as shall be
considered necessary, will hold itself at all times prepared,
should an exigency arise, to march troops for the purpose of
crushing any attempt upon the part of any portion of Her
Majesty’s subjects to contravene by violence any of these
regulations, or resist the due authority of law, and of protecting
the Griqua people while acting justly and inoffensively in the
full enjoyment of their rights, their privileges, and their lands.
This done at the Government House, in Cape Town, this
1848] THE BASUTO STATE 269
Fifth Day of February, in the Year of Our Lord One Thousand
Eight Hundred and Forty-six.
(Signed) P. MAITLAND. (L.S.)
Signed and sealed in our presence :
(Signed) JOHN MONTAGU, Secretary to Government.
HARRY RIVERS, Treasurer-General.
W. PORTER, Attorney-General.
W. FIELD, Collector of EM. Customs.
This done at Philippolis, this Nineteenth Day of February,
in the Year of Our Lord One Thousand Eight Hundred and
Forty-six.
(Signed) ADAM KOK, Kapitein. (A.K.)
Signed and sealed in our presence :
(Signed) HENDRIK HENDRIKZE, Secretarius.
W. Y. THOMSON, Missionary. J. C. WRIGHT, [and others.]
Parl. Papers, S. Africa, C.O. (42), p. 86.
PREPARATIONS FOR ANNEXING TERRITORY.
No. 154. Agreement between Governor Sir H. G. SMITH, Bart.,
and the Basuto Chief MOSHESH. [27 Jan. 1848.]
His Excellency the High Commissioner and the great
Chief Moshesh having met this day, pursuant to appointment,
for the purpose of discussing the matter of the territory occupied
by British emigrants, part of the possessions of the great Chief
aforesaid, as well as for the purpose of considering the affairs
of Southern Africa, north of the Great Orange River, generally ;
the great Chief fully concurred in the proposition of his Excel-
lency, that peace, harmony, and tranquillity could neither be
established nor maintained without the existence of some great
and paramount authority. For the purpose therefore of
effecting this object, and at the same time of maintaining
inviolate the hereditary rights of the Chiefs, and of effectually
restraining the Boers within the limits, and upon the locations
they now possess, and that magistrates might be appointed,
and surveyors employed to ensure the same, his Excellency
proposed the Proclamation of the Sovereignty of the Queen of
England throughout all the territories over which Her Majesty’s
subjects have spread themselves, partly by purchase, partly
on toleration, and frequently without either. Of the ex-
pediency of this great measure in which the Chiefs previously
conferred with, viz., Maroka, Adam Kok, and various other
minor Chiefs, had fully concurred the Chief Moshesh most
fully approved, and strongly expressed himself that such
paramount authority was absolutely necessary for the purpose
270 ORANGE FREE STATE [1848
of maintaining, in strict alliance with Her Majesty of England,
that harmony and unanimity which it had been his wish to
preserve, and his desire to effect. His Excellency then adverted
to the treaty entered into with Sir Peregrine Maitland in 1845,
and the receipt of a part of the quitrents as therein established ;
upon which the Chief immediately said, he had not met the
High Commissioner on any pecuniary point, which he begged
to waive entirely ; but that as he had ever been a strong
and staunch friend to such of Her Majesty’s subjects as had
emigrated and desired to locate upon such territories ; so all
he hoped was, that the measure of policy the High Commis-
sioner proposed to adopt, to ensure harmony and tranquillity
between Her Majesty’s and his own subjects would be carried
out. Upon this, in the name of Her Majesty, his Excellency
highly complimented and thanked the great Chief Moshesh,
stating that he was unable to express himself as to which he
admired most, his feelings as a man, or his magnanimity as a
Chief. The High Commissioner then proposed that in honour
of this day’s cemented alliance, he may be permitted, in the
name of Her Majesty, to forward annually from Cape Town,
such articles of British manufacture as he hoped would be
acceptable to the Chief.
And thus ended the conference as mutually satisfactory to
the high contracting parties, as it is hoped its results may be
permanent and satisfactory.
Given under our hands this Twenty-seventh Day of
January 1848.
(Signed) H. G. SMITH.
his
MOSHESH, x
WINBURG, 2jth January 1848. mark.
Witnesses :
(Signed) JOHN GARVOCK.
C. CASALIS.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 91.
ESTABLISHMENT OF THE QUEEN’S SOVEREIGNTY
OVER THE TERRITORY BETWEEN THE ORANGE
AND THE VAAL RIVERS. [3 Feb. 1848.]
No. 155. Proclamation. By His Excellency Lieut.-General
Sir HENRY GEORGE WAKELYN SMITH, Baronet [etc.],
Administrator of the Government of the Settlement of
the Cape of Good Hope [etc.], and Her Majesty’s High
Commissioner [etc.].
WHEREAS, as Her Majesty’s High Commissioner for the
1848] BRITISH SOVEREIGNTY 271
settlement and adjustment of the boundaries, and an amicable
and clear understanding of the affairs and the relationship with
the chiefs, tribes, and people of the countries adjacent to the
colony of the Cape of Good Hope, I have placed upon a per-
manent foundation the preservation of peace, harmony, mutual
confidence, and the attainment of civilization on the eastern
boundary, and have personally visited the countries upon the
north and north-eastern boundary of the colony, on the line
leading to Her Majesty’s settlement of Natal, annexed to the
colony of the Cape of Good Hope, for the purpose of obtaining
information from all the various parties concerned, upon
matters so involving the interests, not only of the native chiefs
of the countries into which many of Her Majesty’s legal subjects
have established themselves, but also of those subjects them-
selves ; and have personally conferred with the leading chiefs
of the neighbouring tribes, and with many of the meritorious
and devout missionaries, as well as with the influential and
thinking men of Her Majesty’s subjects located as aforesaid ;
and have received several addresses very numerously signed
by the inhabitants, between the Orange, the Modder, and
Riet rivers, as well as from those around Bloem Fontein, and
from the Caledon river, and also those from the neighbourhood,
and at Wenburg.
Now, therefore, by virtue of the several powers and authori-
ties in me vested, and subject to Her royal confirmation, I
do hereby proclaim, declare, and make known, the sovereignty
of Her Majesty the Queen of England over the territories north
of the Great Orange river, including the countries of Moshesh,
Moroko, Molitsani, Sinkonyala, Adam Kok, Gert Taaybosch,
and other minor chiefs, so far north as to the Vaal river, and east
to the Drakensberg, or Quathlamba mountains ; with no desire
or inclination whatever on the part of Her Majesty to extend
or increase her dominions, or to deprive the chiefs and their
people of the hereditary rights acknowledged and recognized
by all civilized nations of the world, as appertaining to the
Nomadic races of the earth ; but on the contrary, with the sole
view of establishing an amicable relationship with these chiefs,
of upholding them in their hereditary rights, and protecting
them from any future aggression, or location of Her Majesty’s
subjects, as well as of providing for their rule, and the mainten-
ance of good order, and obedience to Her Majesty’s laws and
commands on the part of those of the Queen’s subjects, who,
having abandoned the land of their fathers, have located
themselves within the territories aforesaid : and I hereby
proclaim, that all the chiefs of the territories aforesaid are under
the sovereignty of Her Majesty, as the paramount and exclusive
authority in all international disputes as to territory, or in any
272 ORANGE FREE STATE [1848
case whatever tending to interrupt the general peace and
harmony of South Africa : but that their authority over their
own tribes shall be maintained, as well as their own laws,
according to their customs and usages.
And I hereby proclaim that all Her Majesty’s subjects
within the territories aforesaid, shall be governed by the laws,
ordinances, and proclamations framed, and to be framed,
for Her Majesty’s colony of the Cape of Good Hope, and that
they shall henceforth be in full possession of the rights of citizens
of the said colony, and that municipalities, corporations, and
other privileges shall be granted to them, as their increase and
improvement require.
And I do hereby proclaim that Her Majesty’s Government
assumes the responsibility to the chiefs, as regards their just
indemnification for all lands now occupied by these Her Majesty’s
subjects, upon the latter paying an annual quitrent, according
to a schedule which shall be established by a Commission
appointed for the purpose, and upon the condition that every
able-bodied man turns out in the defence of Her Majesty, and
her allies, either with arms, or as special constables, as may be
required by the British Resident and Magistrate.
The appropriation of these quitrents shall be : Firstly,
for the fair and honest remuneration and indemnification of
the native chiefs, in lieu of any and all contracts or leases entered
into by Her Majesty’s subjects, so that no breach of faith shall
exist, in the faith of an agreement entered into by Her Majesty’s
High Commissioner with the great chiefs Moshesh, Moroko,
Sinkonyala, Adam Kok, and others. Secondly, for the defraying
their own expenses of their own government, viz., the British
Resident at Bloem Fontein, Magistrates, etc., as shall hereafter
be appointed, with Sheriff’s officers, constables, etc., and Field-
Commandants and Field-Cornets, etc., as the full organization
of a government may require, and for bearing the expense of
sending into Colesberg all criminal cases which must be tried
before the judges.
And I do hereby proclaim and declare, that every trader or
other individual trafficking, or engaged in commerce, within
the territories aforesaid, shall pay an annual license of 50,
in the like manner as the traders in British Kaffraria ; these
licenses to be obtained from any Commissioner within or with-
out the colony, who are hereby authorized to grant the same ;
and all sums which thus accnie, and whatever surplus remains
of the sums collected as quitrents, after the payment of the
indemnification to the native chiefs for the lands, and the
expense of the government aforesaid, shall be vested in a fund,
under the control of a Commission, composed of members of the
Dutch Reformed Church, appointed by Her Majesty’s High
1848] BRITISH SOVEREIGNTY 273
Commissioner, for the erection of churches on such spots as may
be selected and sanctioned, and for the provision of ministers,
and hereafter for the erection of schools and for their mainten-
ance, for the improvement of roads, etc., all for the exclusive
benefit of the population north of the Orange river. And
whatever sums may be subscribed for the erection of any church
or churches as Her Majesty’s High Commissioner, I pledge
myself to advance on loan an equal sum.
And I hereby proclaim all the missionary stations within
the territories aforesaid, to be under the special protection of
Her Majesty the Queen of England.
And I hereby proclaim and declare, that this sovereignty
and paramount authority is for the sole protection and pre-
servation of the just and hereditary rights of all the native
chiefs as aforesaid, and for the rule and government of Her
Majesty’s subjects, their interests and welfare. That no benefit
whatever accrues, or is desired by Her Majesty, beyond the
satisfaction Her Majesty the Queen will ever feel in the main-
tenance of a just peace, and the improvement of the condition
of her people, and in their advancement in the blessings of
Christianity, civilization, and those habits of industry and
honesty which will elevate and civilize the barbarian, and
support and uphold the Christian community, and thus will
that peace be established which Her Majesty desires to effect,
and has the power and determination to maintain.
GOD SAVE THE QUEEN.
‘ Given under my hand, and the seal of the Colony of the
Cape of Good Hope, on the Great Tugela river, this 3rd day of
February 1848.
(Signed) H. G. SMITH.
By order of His Excellency, Her Majesty’s High Com-
missioner.
(Signed) RICHARD SOUTHEY,
Secretary to High Commissioner.
Part. Papers, C. of G. Hope, presented July 1848, p. 63.
PROVISIONAL GOVERNMENT IN THE ORANGE
RIVER SOVEREIGNTY.
No. 156. Extract of Proclamation by Sir HENRY G. W. SMITH.
[8 March 1848].
* * *
The British resident, Major Warden, in the absence of the
High Commissioner, is paramount, and is the President-in-
Chief of all Boards or Commissions, which may be formed
for all and whatever purposes.
18
274 ORANGE FREE STATE [ l8 4 8
The post of Major Warden, as British resident and magis-
trate, will be Bloem Fontein. A civil commissioner and
resident magistrate, combined in one person, will be stationed
at Wenberg, and one in the most eligible and populous neigh-
bourhood of the Caledon river. These civil commissioners
and magistrates will have a clerk and two constables attached
to each, to issue and serve summonses, and to conduct
criminals to Colesberg. No person of colour is ever to be
employed in conveying summonses, or in the execution of any
point of law, nor are any of the military at present stationed
at Bloem Fontein to be employed in matters of a civil nature.
The civil commissioners and magistrates will collect the
quitrents of their respective districts, receive the amounts to
be derived from licenses to traders, fines, and monies, which
may arise as the revenue of Her Majesty’s subjects beyond the
Orange river ; and will transmit to the High Commissioner
quarterly accounts of such receipts, and the disposal thereof,
for publication in the English and Dutch languages, that all
may be acquainted with the state of the funds.
The magistrates will keep a daily record of their proceed-
ings, cases, and decisions, and every three months a summary
of the whole will be transmitted by the British resident and
other magistrates direct to the High Commissioner, who will
submit them to the chief justice, or one of the puisne judges,
for examination and comment, in order to ensure a correct and
uniform administration of justice.
* * *
A Land Commission will be formed, consisting of the British
resident, as President-in-Chief ; the civil commissioner and
magistrate of the district in which the board is held, who
will preside in the absence of the British resident ; two land
surveyors ; and one burgher of the district elected by the
people, as members ; and the clerk to the magistrate of the
district, in which the Commission are employed, will act as
clerk to the Land Commission.
The first duty of this Commission is to divide the territory
under the sovereignty of Her Majesty, between the Great
Orange and Vaal rivers, into three districts ; the first to be
designated that of Bloem Fontein, the second that of the
Caledon river, the third that of Wenburg.
Each of these districts to be divided into field-commandant-
ships and field-cornetcies, the selection of persons for these
duties to be made by the majority of the people over whom
they are to exercise authority.
The Commission will then register each farm, take the
census of the population, record the size of the farm, and,
according to the value of the land, fix the amount of quit-
1849] BRITISH SOVEREIGNTY 275
rent from 2 to 8 per annum, which are to be regarded as the
minimum and maximum rates.
* * *
Part. Papers, C. of G. Hope, presented
July 1848, p. 65.
No. 157. REGULATIONS FOR THE GOVERNMENT OF
THE ORANGE RIVER SOVEREIGNTY.
[Some of the farmers residing in the northern half of the Sovereignty
asked and obtained assistance from the Emigrants to the north of the
Vaal. They expelled the British officials from the territory, but their
commando was defeated by a British force, marching from the Cape,
at Boomplaats on 29th August 1848. Most of the men then fled across
the Vaal, and the officials were reinstated.]
PROCLAMATION by His Excellency Lieut. -General Sir HENRY
GEORGE WAKELYN SMITH, etc. etc. [14 March 1849.]
WHEREAS by my Proclamation bearing date the 3rd of
February 1848, I did, amongst other things, proclaim and
make known the sovereignty of Her Majesty the Queen of
England over certain territories north of the Great Orange
River : And whereas it has become necessary to make pro-
vision for the better regulation of the said territories : Now,
therefore, I do hereby proclaim, declare, and make known,
that the series of Regulations hereto annexed shall, from and
after the 3ist day of March 1849, be of force within the said
territories, and that from thenceforth anything in my Pro-
clamations of the 3rd of February 1848 and the 8th of March
1848 respectively ; and anything in any other former Pro-
clamation, repugnant to, or inconsistent with, any of the
said Regulations, shall be revoked, and the same is hereby
revoked accordingly.
GOD SAVE THE QUEEN.
Given under my hand and seal of the settlement of the Cape
of Good Hope, at Cape Town, this I4th day of March 1849.
(Signed) H. G. SMITH.
By command of His Excellency the High Commissioner,
(Signed) RICHARD SOUTHEY,
Secretary to the High Commissioner.
REGULATIONS FOR THE FUTURE GOVERNMENT OF THE
SOVEREIGNTY BEYOND THE ORANGE RIVER.
Name, Extent, and Mode of Government.
I. The territory between the Orange River, the Vaal
River, and the Draakberg Mountains, over which Her Majesty’s
Sovereignty is proclaimed, shall be designated the ” Orange
River Sovereignty.”
276 ORANGE FREE STATE [1849
2. It is divided into four magistracies or districts, over
which Major Warden, the British Resident, is the paramount
authority, under his Excellency the High Commissioner :
(1) The district of Griqua Land, of which Bloem Fontein
and ” the Queen’s Fort ” is the seat of magis-
tracy, and to which Charles Urquhart Stuart,
Esq., is the appointed magistrate.
(2) The district of Winburg, of which the town of
Winburg is the seat of magistracy, and of which
Mr. Biddulph is the magistrate.
(3) The district of Vaal River, of which the new town
of Vreeddorp is the seat of magistracy, and Mr.
Paul Bester the magistrate.
(4) The district of Caledon River, of which Smithfield
is the seat of magistracy, and Mr. Vowe the
magistrate.
3. The Orange River Sovereignty will be governed by Her
Majesty’s High Commissioner, aided by a local Council, to
consist of the British Resident-in-Chief, the four other magis-
trates, and eight councillors, two for each district, to be nomi-
nated by his Excellency, from and out of the landowners of
such district holding their lands on quitrent.
4. The mode of calling together, adjourning, or dissolving
the Council will be regulated by the High Commissioner,
and hereafter announced.
5. Every unofficial councillor shall serve for a term of three
years, unless the Council shall be sooner dissolved, or on his
own resignation or incapacity.
6. The British Resident will be the President of the Council,
which will meet with open doors, once a year, at Bloem
Fontein, and oftener, if summoned by order of the High Com-
missioner, for the consideration of such matters as may be
suggested by his Excellency the High Commissioner, or pro-
posed by the President, or any member, having for their object
the benefit of all classes of people within the sovereignty.
7. The authority of the Council as to the framing of laws
shall extend over all persons within the Orange River Sov-
ereignty, not belonging to the tribe or people of any native
chief or captain within the sovereignty, in regard to acts done,
or matters arising, anywhere within the sovereignty, and over
all persons whomsoever, in regard to acts done or matters
arising within any of those parts of the said sovereignty not
belonging to any native chief or people. But in order that
the reasonable and rightful authority of the native chiefs over
their own people should be upheld, the Council will not be
competent to entertain any project by which the exclusive
1849] BRITISH SOVEREIGNTY 277
jurisdiction of any chief over his own people, in regard to crimes
or claims arising within such chief’s land, and charged or made
against any of this people, should be taken away or abridged,
but, on the contrary, such exclusive jurisdiction, and the
maintenance, in regard to the determination of such crimes
or claims, of all native laws and usages not repugnant to
decency, humanity, or natural religion, is hereby guaranteed.
8. Every unofficial member of Council, who may desire
it, will receive ten shillings a day during the sitting of Council,
as well as ten shillings for every forty miles he shall have to
travel to and from the place of meeting.
9. All measures resolved by a majority of votes in the
Council will be submitted through the President to his Ex-
cellency the High Commissioner, for his consideration and
sanction : but no legislative measure shall have the force of
law until the sanction of his Excellency the High Commis-
sioner shall be signified by a notice in the Government Gazette
of the Colony of the Cape of Good Hope. The High Commis-
sioner may, in such notice, fix whatever time he thinks proper
for the bringing into operation of any such measure ; and if no
other time be fixed, then the measure shall come into operation
at the expiration of thirty-one clear days next after the day on
which such notice shall be first published.
10. The High Commissioner will cause a correct statement
of the receipts and expenditure of all public moneys raised
within the sovereignty for the past year, to be laid before the
Council at every annual meeting, as well as an estimate of the
probable revenue and expenditure for the year next ensuing.
It shall be competent for the Council to make to the High
Commissioner any representations upon the subject which
the members shall think desirable or likely to improve the
administration of the district. The British Resident shall be
the Treasurer- General of the sovereignty.
11. Considering the nature of the country and the pursuits
of the inhabitants, it is intended that the Council should
combine with its other functions those of an Agricultural
Society, and mature and propose to the High Commissioner
plans for the advancement of agriculture, for promoting the
planting of trees, for the construction of dams, many of
which have been already completed in Griqua Land, with
great labour, and consequent advantage to the proprietors.
In fine, it is meant that the people, acting through this Council,
should devise measures calculated to advance their interests,
civil, social, and religious, and minor obstacles shall not be
suffered either to prevent or impede the accomplishment of
any good object which they shall recommend.
278 ORANGE FREE STATE [1849
Laws and Courts of Justice.
12. Subject to future alteration by the High Commissioner,
with the advice and consent of the Council, all persons within
the Orange River district, not belonging to the tribe or people
of any native chief within such district, shall be subject to the
provisions of the Roman-Dutch law, as received and adminis-
tered in the Courts of the Cape Colony ; but no local ordinance
or enactment of the Cape Colony shall be in force in the Orange
River district, unless expressly re-enacted for such district.
And persons, although belonging to native tribes and chiefs,
shall be subject to the same law in regard to acts done or
matters arising within those parts of the district not belonging
to any native chief or people.
13. Every native chief and people shall be governed and
regulated by their own laws and usages, in regard to all crimes
committed by and questions arising between any of such
people, within the peculiar territory allotted to such chief and
people, so long as such laws and usages are repugnant neither
to decency, humanity, nor natural religion, and people
belonging to one native chief, committing crimes or contract-
ing obligations in the territory belonging to any other native
chief, shall be dealt with according to the native usage hereto-
fore in force in such cases, subject always to the right of inter-
ference by the British Resident, in order to prevent irregularity
or injustice.
14. Each of the four magistrates already mentioned shall
hold a Court, and shall possess jurisdiction in all civil cases,
in which the defendants, being resident within the magistracy
of such magistrate, shall be persons subject, under the I2th
of these Regulations, in regard to the determination of such
case, to the provisions of the Roman-Dutch law, and in which
the sum or matter in dispute shall not exceed the value of
500 rds.
15. Every such magistrate’s court shall possess jurisdiction
in all cases of crimes and offences, wherein any person, subject
under the I2th of these Regulations to the Roman-Dutch law,
as contradistinguished to native law, in regard to such crime
or offence, shall be accused of any crime or offence committed
within the magistracy of such magistrate ; but no such magis-
trate shall punish any offender in any higher or more severe
manner than by a fine not exceeding 300 rds., and imprison-
ment with or without hard labour, for not more than four
months ; and such magistrate may, either with imprisonment
or without, adjudge the offender to receive corporal punish-
ment in any number of lashes not exceeding twenty-five.
16. The magistrates aforesaid, in the exercise of their
1849] BRITISH SOVEREIGNTY 279
jurisdiction both civil and criminal, shall conform themselves
to the rules for the time being in force in regard to the courts
of resident magistrate of the Cape Colony, with such alterations
and adaptations as the High Commissioner shall sanction and
approve.
17. For the trial of any person subject under these regula-
tions to the Roman-Dutch law, in regard to such crime or
offence, who shall be accused of any crime or offence committed
within the Orange River sovereignty, which from its nature
or circumstances shall be of too aggravated a character to be
dealt with under the summary jurisdiction of the magistrate,
a court, to consist of not less than three out of the four magis-
trates, shall be holden at such times and places and before
such magistrates as the British Resident shall appoint ; and
such court shall be competent to adjudge any such punishment
as may lawfully be adjudged by a Circuit Court of the Colony
of the Cape of Good Hope, subject, nevertheless, to the two
following restrictions : first, that in regard to any person who
shall, as a British subject, be liable, under the Act 6 & 7
Will, iv., chap. 57, to be tried by the courts of the said colony,
for the crime of which he is accused, such court shall not be
competent to punish such person in any higher or more severe
manner than by fine not exceeding 1000 rds., and imprisonment
with or without hard labour, for a period not exceeding two
years ; but such court may, either with or without imprison-
ment, adjudge the offender to receive corporal punishment
in any number of lashes not exceeding 50 ; and secondly,
subject to the restriction, that in every case in which the
accused person shall be one of the people of any native chief
within the said district, charged with having committed a
crime in a part of the said district not belonging to any native
chief or people, the chief to whom such accused person shall
belong shall have due notice of the time and place of trial,
and shall be invited to be present at the same, or to send some-
one to represent him thereat ; and such chief or other person
shall have liberty to put such questions and make such remarks
as he may think necessary to the right of determination of
the case. Such court as aforesaid may consist, when the
British Resident shall so appoint, of the whole four magis-
trates, and unanimity shall be necessary in every verdict of
guilty, and in the degree of every punishment awarded.
18. Every such court as in the last preceding section men-
tioned shall possess jurisdiction in all civil cases in which the
defendants, being persons resident within the Orange River
sovereignty, shall be subject under the I2th of these Regula-
tions, to the Roman- Dutch law.
19. Every such last-mentioned court shall, in the exercise
280 ORANGE FREE STATE [1849
of its jurisdiction, conform, as much as may be, to the practice
of the magistrates’ courts, unless in so far as the High Commis-
sioner may otherwise provide.
20. Every magistrate within whose district any crime
shall be committed by any person subject as to such crime to
the Roman-Dutch law, as contradistinguished from native law,
may issue his warrant for apprehending the offender or supposed
offender, which warrant shall be executable in any part of the
Orange River sovereignty not belonging to any native chief,
and also in the lands of any such chief who shall so direct.
But such chief, should he prefer it, may himself arrest and
deliver up the alleged offender to be dealt with according to law.
21. The High Commissioner will appoint justices of the
peace, and field-cornets, and the several magistrates will,
subject to his Excellency’s approval, appoint constables, and
every justice of the peace, field-cornet, and constable shall
possess and exercise, within those parts of the sovereignty
not belonging to any native chief or people, all powers, auth-
orities, and duties, belonging to the like office in the colony of
the Cape.
22. Officers of the law, and private persons, respectively,
may arrest without warrant in the Orange River sovereignty,
persons accused of crimes committed within the sovereignty,
and triable by the Roman-Dutch law, which persons might
lawfully have been arrested by the same or similar parties
within the colony of the Cape, if accused of crimes committed
therein.
23. [Records of all cases tried must be submitted to the
High Commissioner. Sentences may not be carried out with-
out his approval if they involve imprisonment exceeding
six months, fines exceeding 150 rds., punishment with any
number of lashes exceeding 50, 1 etc.]
24. The duties of public prosecutor, when necessary to be
performed, shall be discharged by such officer or person as the
High Commissioner shall direct.
25. Whenever any person shall be accused of any crime
or offence of too grave a nature to be tried either by the magis-
trate under his summary jurisdiction, or by the court of com-
bined magistrates already described, and such person shall,
as a British subject, be liable under the Act 6 & 7 Will, iv.,
chap. 57, to be tried by the courts of the Cape Colony ; such
accused person shall be sent into the colony to be dealt with
according to law.
26. As often as any crime shall be committed in any
territory within the said sovereignty belonging to any native
1 This seems to be the intention of a long and muddled clause which does
not keep account with the provisions of preceding clauses.
1854] BLOEMFONTEIN CONVENTION 281
chief or people, by any person belonging to any native chief
within the said sovereignty, the nearest magistrate, upon
being applied to for that purpose by any person injured by the
crime, and not being one of the people of the same chief who
shall, by native law or usage, have jurisdiction over the accused
party, shall make, if necessary, such representations to such
chief as shall tend to secure or further the ends of justice.
27. When any doubt or question shall arise as to the
court to which any accused person should be sent for trial,
the matter shall be decided by the British Resident.
Tenure of Land.
28. To avoid occasions of contention, prevent unjust
encroachments in any quarter and preserve the just rights of
all, the lands of which the continued and exclusive use shall be
secured to the several- native chiefs and people within the Orange
River sovereignty, are to be carefully ascertained and defined.
29. The lands within the Orange River sovereignty belong-
ing to any native chief and people, are to be protected for
the use of such chief and people, and shall be regulated by
the laws and usages of such chief and people in regard to all
rights of occupation or inheritance, and all questions touching
the same shall, as heretofore, be determined by the tribunals
of such chief and people.
30. All lands within the Orange River sovereignty, not
allotted to any native chief or people, shall be held of Her
Majesty the Queen, by grant, on such moderate quitrents
as may be fixed ; such grants to be in the name of the High
Commissioner, acting on Her Majesty’s behalf, and to be
signed, under his Excellency’s order, by the British Resident.
31. The amount of such quit-rents, together with every
sort and description of revenue raised within the sovereignty,
shall be applied exclusively for the benefit of the same.
32-34. [About licenses.]
35-36. [About churches and schools.]
37-38. [About the post and roads.]
[The foregoing Regulations are subject to alteration from
time to time.]
(Signed) H. G. SMITH.
Parl. Papers, C. of G. Hope, presented 19 May 1851, p. 3.
No. 158. THE BLOEMFONTEIN CONVENTION.
[23 Feb. 1854.]
[The defence of the country was a costly undertaking, especially
as its white inhabitants were almost continually being plundered by
the people of the powerful Basuto king, Moshesh. Towards the end of
282 ORANGE FREE STATE [1854
1852 an attempt was made to chastise that chieftain, but little was
effected. The half-formed resolution of the British Government
to abandon the Sovereignty was then definitely adopted ; but the
condition of the country was at a very low ebb, many of the efficient
fighting men among the white inhabitants had proceeded across the
Vaal, and under the circumstances the majority of the inhabitants
were strongly desirous of retaining British protection, though they
asked for a liberal form of government. The British Commissioner
had some difficulty in persuading representatives of the people elected
for the purpose to take over the government ; but on 3oth January
1854 a royal proclamation was issued, renouncing all dominion over
the Territory, and a little later the agreement given here was arrived at.]
Articles of Convention entered into between Sir GEORGE
RUSSEL CLERK, . . . Her Majesty’s Special Commissioner
for settling and adjusting the affairs of the Orange River
Territory, on the one part, and the under-mentioned
representatives, delegated by the inhabitants of the said
Territory :
For the District of Bloemfontein. GEORGE FREDERIK
LINDE, [and 3 others] ;
For the District of Smithfield. JOSIAS PHILIP HOFF-
MAN, [and 4 others] ;
For Sannah’s Poort. GERT PETRUS VISSER, Justice
of the Peace, [and 5 others] ;
For the District of Winburg. FREDRIK PETER
SCHNEHAGE, [and 5 others] ;
For the District of Harrismith. PAUL MICHIEL
BESTER, Justice of the Peace, [and 5 others] ;
on the other part.
ARTICLE i. Her Majesty’s Special Commissioner, in
entering into a Convention for finally transferring the
Government of the Orange River Territory to the repre-
sentatives delegated by the inhabitants to receive it,
guarantees, on the part of Her Majesty’s Government, the
future independence of that country and its Government ;
and that after the necessary preliminary arrangements for
making over the same between Her Majesty’s Special Com-
missioner and the said representatives shall have been com-
pleted, the inhabitants of the country shall then be free. And
that this independence shall, without unnecessary delay, be
confirmed and ratified by an instrument, promulgated in
such form and substance as Her Majesty may approve, finally
freeing them from their allegiance to the British Crown, anid
declaring them, to all intents and purposes, a free and inde-
pendent people, and their Government to be treated and con-
sidered thenceforth a free and independent Government.
2. The British Government has no alliance whatever with
any native Chiefs or tribes to the northward of the Orange
1854] BLOEMFONTEIN CONVENTION 283
River, with the exception of the Griqua Chief, Captain Adam
Kok ; and Her Majesty’s Government has no wish or intention
to enter hereafter into any treaties which may be injuri-
ous or prejudicial to the interests of the Orange River
Government.
3. With regard to the treaty existing between the British
Government and the Chief, Captain Adam Kok, some modifica-
tion of it is indispensable. Contrary to the provisions of that
treaty, the sale of lands in the Inalienable Territory has been of
frequent occurrence, and the principal object of the treaty
thus disregarded. Her Majesty’s Government therefore in-
tends to remove all restrictions preventing Griquas from selling
their lands, and measures are in progress for the purpose of
affording every facility for such transactions, the Chief, Adam
Kok, having, for himself, concurred in and sanctioned the same.
And with regard to those further alterations arising out of the
proposed revision of relations with Captain Adam Kok, in
consequence of the aforesaid sales of lands having from time to
time been effected in the Inalienable Territory contrary to the
stipulations of the Maitland Treaty, it is the intention of Her
Majesty’s Special Commissioner, personally, without any un-
necessary loss of time, to establish the affairs in Griqualand
on a footing suitable to the just expectations of all parties.
4. After the withdrawal of Her Majesty’s Government from
the Orange River Territory the new Orange River Government
shall not permit any vexatious proceedings towards those of
Her Majesty’s present subjects remaining within the Orange
River Territory who may heretofore have been acting under
the authority of Her Majesty’s Government, for or on account
of any acts lawfully done by them, that is, under the law as
it existed during the occupation of the Orange River Territory
by the British Government. Such persons shall be considered
to be guaranteed in the possession of their estates by the new
Orange River Government.
Also, with regard to those of Her Majesty’s present subjects
who may prefer to return under the dominion and authority
of Her Majesty to remaining where they now are, as subjects
of the Orange River Government, such persons shall enjoy
full right and facility for the transfer of their properties, should
they desire to leave the country under the Orange River
Government at any subsequent period within three years
from the date of this convention.
5. Her Majesty’s Government and the Orange River
Government shall, within their respective territories, mutually
use every exertion for the suppression of crime, and keeping
the peace, by apprehending and delivering up all criminals
who may have escaped or fled from justice either way across
284 ORANGE FREE STATE [1854
the Orange River, and the courts, as well the British as those
of the Orange River Government, shall be mutually open and
available to the inhabitants of both territories for all lawful
processes. And all summonses for witnesses directed either
way across the Orange River, shall be countersigned by the
magistrates of both Governments respectively, to compel the
attendance of such witnesses, when and where they may be
required, thus affording to the community north of the Orange
River every assistance from the British courts, and giving, on
the other hand, assurance to such Colonial merchants and
traders as have naturally entered into credit transactions
in the Orange River Territory during its occupation by the
British Government, and to whom, in many cases, debts may be
owing, every facility for the recovery of just claims in the
courts of the Orange River Government. And Her Majesty’s
Special Commissioner will recommend the adoption of the like
reciprocal privileges by the Government of Natal in its relations
with the Orange River Government.
6. Certificates issued by the proper authorities,’ as well in
the Colonies and Possessions of Her Majesty as in the Orange
River Territory, shall be held valid and sufficient to entitle
heirs of lawful marriages, and legatees, to receive portions and
legacies accruing to them respectively, either within the juris-
diction of the British or Orange River Government.
7. The Orange River Government shall, as hitherto, permit
no slavery, or trade in slaves, in their territory north of the
Orange River.
8. The Orange River Government shall have freedom to
purchase their supplies of ammunition in any British Colony
or Possession in South Africa, subject to the laws provided
for the regulation of the sale and transit of ammunition in
such Colonies and Possessions ; and Her Majesty’s Special
Commissioner will recommend to the Colonial Government,
that privileges of a liberal character, in connexion of import
duties generally, be granted to the Orange River Government,
as measures in regard to which it is entitled to be treated
with every indulgence, in consideration of its peculiar position
and distance from the seaports.
9. In order to promote mutual facilities and liberty to
traders and travellers, as well in the British Possessions as in
those of the Orange River Government and it being the earnest
wish of Her Majesty’s Government that a friendly intercourse
between these territories should at all times subsist, and be
promoted by every possible arrangement, a consul or agent
of the British Government, whose especial attention shall be
directed to the promotion of these desirable objects, will be
i854l THE CONSTITUTION 285
stationed within the Colony near to the frontier, to whom
access at all times may readily be had by the inhabitants on
both sides of the Orange River, for advice and information,
as circumstances may require.
This done and signed at Bloemfontein, on the Twenty-
third day of February, One Thousand Eight hundred and
Fifty-four.
(Signed) GEO. RUSSEL CLERK,
Her Majesty’s Special Commissioner.
(Signed) (Signed)
JOSIAS PHILIP HOFFMAN, H. L. Du TOIT.
President. F. P. SCHNEHAGE.
G. J. Du TOIT, Field-cornet. M. J. WESSELS.
J. J. VENTER. C. J. F. Du PLOOY.
D. J. KRAMFORT. F. P. SENNEKAL, Field-cornet.
H. J. WEBER, Justice of the Peace P. L. MOOLMAN, Field-cornet.
and Field-commandant. J. I. J. FICK, Justice of the
P. A. HUMAN. Peace.
J. P. SNYMAN, late Field-corn- P. M. BESTER, Justice of the
mandant. Peace.
G. P. VISSER, Justice of the W. A. VAN AARDT, Field-
Peace, cornet.
J. GROENENDAAL. W. J. PRETORIUS.
J. J. RABIE, Field-cornet. J. J. BORNMAN.
E. R. SNYMAN. A. H. STANDER.
C. P. Du TOIT.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 94.
No. 159. THE CONSTITUTION OF THE ORANGE FREE
STATE.
[The Orange Free State Constitution was adopted on the roth
April 1854, within three weeks after the country became independent
of Great Britain. Modifications were made in 1864 and 1865 and con-
firmed by a resolution of the Volksraad, dated 9th February 1866.
These were declared to take effect after two months. It is the Con-
stitution as it stood in 1866 that is given here. It was again revised
and published in 1868.
In the year 1 892 a compilation of the Free State Laws was published
by authority of the Volksraad. The Grondwet appearing therein
differs from the one here published in only a few unimportant details,
though, of course, a number of laws were passed in the meantime,
which altered to some extent the manner of carrying out the provisions
of the Constitution.
Those articles of the 1866 Grondwet which are identical with corre-
sponding articles published in 1 892 are marked with an asterisk. The
instrument was formally repealed by Proclamation No. 3 of 1902 (A),
though impliedly it became void by the Proclamation of 24th May 1900,
which annexed the country to the British Empire.]
286 ORANGE FREE STATE [1854-
CONSTITUTIE VAN DEN ORANJEVRIJSTAAT.
[10 Ap. 1854, 1866, enz.]
KWALIFICATIE VAN KlESGEREGTIGDEN.
ART. I. De Burgers van den Oranjevrijstaat zullen bestaan :
1. uit alle blanke personen in den Staat geboren ;
2. uit alle blanke personen, die een jaar in den Staat hebben
gewoond en vast eigendon op hunnen naam geregistreerd hebben ter
waarde van minstens Rds. 2000 ; 1
3. uit alle blanke personen, die drie achtereenvolgende jaren in den
Staat hebben gewoond. 2
De personen in No. 2 en 3 genoemd, zullen echter niet als burgers
erkend worden, tenzij zij van net bestuur hunner laatste woonplaats
voor hunne aankorast in den Staat aan den Staatspresident een
schriftelijk bewijs van goed gedrag en eene schriftelijke belofte van
trouw aan den Staat en gehoorzaamheid aan de wetten inleveren, waar-
tegen hun door den Staatspresident een certificaat van burgerschap
zal worden uitgereikt.
ART. II. Alle burgers, zoodra zij den vollen ouderdom van 16 jaren
bereikt hebben en alle, die op lateren leeftijd het burgerregt verkrijgen,
zijn verplicht hunne namen te doen inschrijven bij den veldkornet,
onder wien zij hunne woonplaats hebben, en zijn tot den vollen ouder-
dom van 60 jaren ouderworpen aan burgerdienst.
CONSTITUTION OF THE ORANGE FREE STATE.
[10 Ap. 1854, 1866, etc.]
QUALIFICATION OF ELECTORS.
ART. I. The Burghers of the Orange Free State shall be :
1. All white persons born in the State ;
2. All white persons who have resided in the State for one
year and have immovable property registered in their names
to the value of at least 2000 Rds. ; 1
3. All white persons who have resided in the State for
three successive years. 2
The persons mentioned in sections 2 and 3 shall, however,
not be acknowledged as burghers, unless they shall have
submitted to the State President written proof of good be-
haviour granted by the Government of their most recent
place of residence, and a written promise of fealty to the
State and obedience to its laws ; whereupon a certificate of
burgh ership shall be issued to them by the State President.
ART. II. All burghers, as soon as they shall have reached
the age of 16 years, and all who at a more advanced age shall
obtain burgher-right, shall be obliged to have their names
enrolled by the Field-cornet in whose ward they reside, and
shall be liable to render burgher service till they reach the
age of 60 years.
1 The 1868 Constitution changed this sum to ^150.
2 The 1868 Constitution added this provision : ” Civil and judicial officials
who, before accepting their offices, have taken an oath of allegiance to the
State and its laws.”
-1902] THE CONSTITUTION 287
ART. III.* Alle burgers, die den ouderdom van 18 jaren bereikt
hebben, zijn bevoegd tot het uitoefenen van het stemregt tot verkiezing
van Veldkommandanten en Veldkornetten.
ART. IV.* Bevoegd tot het kiezen van Leden van den Volksraad
en van den Staatspresident zijn alle meerderjarige burgers :
a. die in den Staat geboren zijn ;
b. die vast eigendom te hunnen naam geregistreerd hebben tot eene
onbelastbare waarde van minstens i 50 ;
c. die huurders zijn van vast eigendom, hetwelk eene jaarlijksche
huurwaarde heeft van minstens ^36 ;
d. die een vast jaarlijksch inkomen hebben van minstens 200 ;
e. die eigenaren zijn van roerende goederen tot eene waarde van
minstens 300, en minstens 3 jaren in den Staat hebben gewoond.
PLIGTEN, MAGTEN, ENZ., VAN DEN VOLKSRAAD.
ART. V.* Het Hoogste Wetgevende Gezag berust bij den Volksraad. 1
ART. VI.* Deze Raad zal bestaan uit een lid van elk veldkornet-
schap der onderscheidene districten en uit een lid van elke hoofdplaats
van een district. Deze Raad wordt gekozen bij meerderheid van
stemmen door de stemgeregtigde inwoners van elke wijk en van elke
hoofdplaats van een district.
ART. VII. 2 Die tot leden van den Volksraad verkiesbaar zijn,
ART. III.* All burghers who have reached the age of 18
years shall be entitled to exercise the franchise at elections for
Field-commandants and Field-cornets.
ART. IV.* Entitled to vote for members of the Volksraad
and for a State President are all burghers who are of age, and
who :
a. Have been born in the State ;
b. Have fixed property registered in their own names,
unburdened to the value of at least 150 ;
c. Are hirers of fixed property which has a yearly rent of
at least 36 ;
d. Have a fixed yearly income of at least 200 ;
e. Are owners of movable property to the value of at least
300, and have resided in the State for at least 3 years.
DUTIES, POWERS, ETC., OF THE VOLKSRAAD.
ART. V.* The highest legislative power rests with the
Volksraad. 1
ART. VI.* The said Raad shall consist of one member for
each field-cornetcy of the several districts and one member for
each chief centre [town or village] of a district. This Raad
shall be chosen by majority of votes by the inhabitants possess-
ing the franchise in each ward and each chief centre of a
district.
ART. VII. 2 In order to be eligible as members of the Volks-
1 A statute of 1885 gave the High Court the power to decide whether a law
was against the Constitution.
2 The 1868 Constitution substituted this article : “7. As a member of the
Volksraad shall be eligible every burgher who has never been pronounced
guilty of crime by a jury, who has not been declared bankrupt or insolvent,
288 ORANGE FREE STATE [1854-
moeten burgers zijn, geen lijf straff elijk vonnis te hunnen laste hebben,
den ouderdom van ten minste 25 jaren bereikt hebben en onbelast
vast eigendom bezitten ten bedrage van 200.
ART. VIII. 1 De Landdrosten moeten ambtshalve eene zitplaats
in den Volksraad hebben, en kunnen een deel nemen in de raadspleging,
echter zonder stem.
ART. IX.* De leden van den Volksraad* worden voor vier achtereen-
volgende jaren gekozen, en zijn bij hunne aftreding weder verkiesbaar.
De helft zal om de twee jaren aftreden, en de eerste helft bij het lot
geregeld worden.
ART. X.* De Volksraad kiest in zijne jaarlijksche vergaderingen
eenen voorzitter uit zijne eigene leden.
, ART. XI.* De Voorzitter van den Volksraad zal, bij staking van
stemmen, beslissen.
ART. XII.* Twaalf Leden zullen een quorum uitmaken.
ART. XIII.* De Volksraad maakt de wetten, regelt het bestuur en
de finantien des Lands, en zal te dien einde eenmaal ‘s jaars (te weten op
den eersten Maandag van Mei) te Bloemfontein vergaderen.
ART. XIV.* De voorzitter zal, naar-bevind van zaken, den Raad
extra kunnen bijeenroepen.
ART. XV.* De wetten, door den Volksraad gemaakt, zullen twee
raad, burghers must not have had any criminal sentence
passed on them, must have reached the age of at least 25 years,
and must possess unburdened fixed property to the value of
200.
ART. VIII. 1 The Landdrosts shall ex officio have seats in
the Volksraad, may take part in the deliberations, but shall
not have a vote.
ART. IX.* Members of the Volksraad shall be chosen for
four successive years and shall be re-eligible on vacating their
seats. Half the members shall vacate their seats every two
years, and the first half shall be regulated by lot.
ART. X.* The Volksraad shall annually choose a Chairman
from among its own members.
ART. XL* The Chairman of the Volksraad shall decide in
case of an equality of votes.
ART. XII.* Twelve members shall form a quorum.
ART. XIII.* The Volksraad shall make the laws, regulate
the government and finances of the country, and shall assemble
for that purpose at Bloemfontein once a year (viz. on the
first Monday in May).
ART. XIV.* The Chairman shall be able to summon the
Raad for a special session if circumstances arise to make this
necessary.
ART. XV.* The laws made by the Volksraad shall have
who has his fixed abode within the State, who has reached the age of at least
twenty-five years, and who possesses unencumbered fixed property to the
value of at least five hundred pounds sterling.”
i Deleted from the 1868 Constitution.
-1902] THE CONSTITUTION 289
maanden na de afkondiging kracht van Wet hebben, en door den
voorzitter of door den Staatspresident geteekend worden ; behoudens
net regt van den Raad om in bijzondere omstandigheden eene kortere
of langere tijdsbe paling vast te stellen ; zullende de Raadsleden elk
voor zich zoo veel mogelijk de gemaakte wetten aan hun eigen publiek
bekend en duidelijk maken.
ART. XVI.* In zaken van insolventie, of indien eenig lijf straff elijk
vonnis tegen den Staatspresident uitgesproken wordt, zal de Volksraad
hem dadelijk kunnen afzetten.
ART. XVII.* a. De Volksraad zal het recht hebben om den Staats-
president en andere publieke ambtenaren te oordeelen over lands-
verraad, omkooperij en andere hooge misdaden ;
b. De Staatspresident zal niet veroordeeld worden zonder de toe-
stemming van drie tegen een van de tegenwoordige leden ;
c. Hij zal niet veroordeeld worden zonder dat de voile Raad tegen-
woordig is, of ten minsten zonder dat behoorlijke bekendmaking gegeven
worde, om al de leden in de gelegenheid te stellen tegenwoordig te
zijn ;
d. Indien een quorum bijeengeroepen en eenpariglijk van opinie
is dat de Staatspresident aan een van bovengemelde misdaden schuldig
staat, zullen zij de magt bezitten om hem dadelijk te suspenderen, en
provisioned schikkingen te maken om de pligten van zijn ambt voort
te zetten. Maar in dit geval zullen zij verpligt zijn, zoo spoedig
mogelijk, den geheelen Raad bijeen te roepen om hem te oordeelen ;
force of law two months after their promulgation, and shall
be signed by the Chairman or by the President, saving always
the right of the Raad to fix a shorter or longer limit in special
circumstances ; and the members of the Raad shall each, as
much as possible, make known and explain to their own public,
the laws passed.
ART. XVI.* In case of insolvency, or if some sentence
involving punishment to the person of the State President is
passed, the Volksraad shall be empowered to dismiss him
immediately.
ART. XVII.* a. The Volksraad shall have the right to
pass judgment on the State President and other public officers
for treason, bribery, and other high misdemeanours ;
b. The State President shall not be condemned without
the consent of three to one of the members present ;
c. He shall not be condemned without the full Raad being
present, or at least without due notice being given, so as to
give all the members a chance to be present ;
d. If a quorum has been summoned and is unanimously of
opinion that the State President is guilty of any of the above-
mentioned crimes, they shall have the power to suspend him
immediately and to make provisional arrangements to continue
the duties of his office. But in that case they shall be obliged
to^call together the whole Raad as soon as possible to pass
sentence on him ;
2QO ORANGE FREE STATE [1854-
e. De leden van den Volksraad zullen hunnen eed afleggen bij den
aanvang van gemelde onderzoekingen ;
/. In het geval dat de Staatspresident zou komen te sterven, of
dat hij zijnen post zou bedanken, of daarvan ontslagen worden, of ter
verrigting van zijn ambt onbekwaam wordt, zal de Volksraad
gemagtigd zijn om een’ of meer personen aan te stellen om in zijne
plaats te ageren, totdat zulke onbekwaamheden niet meer bestaan,
of een ander Staatspresident gekozen worde ;
g. Het vonnis van den Volksraad in zulke gevallen zal zich niet
verder uitstrekken, dan tot afzetting van hun ambt, en tot onbekwaam
verklaring om eenigen post onder het Gouvernement ooit weder te
bekleeden. Maar de personen, zoo gevonnisd, zullen niettemin
blootstaan om volgens de wet geoordeeld te worden.
ART. XVIII.* De Volksraad behoudt het regt om de kieslijsten
van Leden voor den Volksraad zelf te onderzoeken, en te verklaren,
of de Leden behoorlijk en wettiglijk gekozen zijn geworden of niet.
ART. XIX.* De Volksraad zal geregelde Notulen zijner verrigtingen
doen houden, en van tijd tot tijd dezelve publiceren, uitgenomen
zoodanige artikelen, die naar hun oordeel moesten teruggehouden
worden.
ART. XX.* De toestemming en afkeuring der onderscheidene
Leden over eenige kwestie stemmende, moeten op verlangen van een
vijfde deel der tegenwoordige Leden in de Notulen opgeteekend worden.
ART. XXL* Het publiek zal toegelaten worden de raadplegingen
e. The members of the Volksraad shall take their oath at
the cofnmencement of the said examination ;
/. In case the State President should come to die, or should
resign his office, or should be dismissed from it, or should
become unfit to fulfil the duties of his office, the Volksraad
shall be empowered to appoint one or more persons to act in
his place, till such unfitness ceases or another State President
is chosen ;
g. The sentence of the Volksraad in such cases shall not
extend any further than to the discharge from office and
the declaration of unfitness ever again to fill a post under the
Government. But the persons so sentenced shall none the
less be liable to be judged according to law.
ART. XVIII.* The Volksraad reserves to itself the right to
examine the election lists for members of the Volksraad, and
to declare whether the members have been properly and law-
fully chosen or not.
ART. XIX.* The Volksraad shall cause regular minutes of
its transactions to be kept and to be published from time to
time, such articles excepted as ought in their opinion to be
kept back.
ART. XX.* The agreement or disapproval of the various
members voting on any question shall be noted down in the
minutes on the request of one-fifth of the members present. c ,i
ART. XXL* The public shall be allowed to attend the
-1902] THE CONSTITUTION 291
van den Volksraad bij te wonen, en Notulen der verrigtingen te nemen,
uitgenomen in bijzondere gevallen, waarbij het geheim noodzakelijk is.
ART. XXII.* De Volksraad zal geene wetten maken, het regt van
de inwoners belettende om zich vredig te vergaderen, en om het
Gouvernement te memoraliseren, om eene verhelping van bezwarenissen
of eenige verandering in eenige wetten te verkrijgen.
ART. XXIII.* De bevordering van Godsdienst en Onderwijs
is een onderwerp van zorg voor den Volksraad.
ART. XXIV. De Nederlandsch Hervormde Kerk ‘ zal door den
Volksraad bevorderd en ondersteund worden.
ART. XXV.* De Volksraad zal de magt hebben ter bescherming
en veiligheid van dit land, om een Burger of Kommandowet te
passeren.
ART. XXVI.* Nadat deze Constitutie finaal zal zijn vastgesteld,
zal er geene verandering in dezelve kunnen gemaakt worden buiten
de toestemming van drie vierden van den Volksraad ; en voor dat
eene zoodanige verandering zal kunnen gemaakt worden, zal er eene
meerderheid van drie vierden der stemmen v66r dezelve in twee
achtereenvolgende jaarlijksche zittingen moeten plaats hebben.
ART. XXVII.* De Volksraad zal de magt hebben om belastingen
op te leggen of te verminderen ; om de publieke schulden te betalen ;
en om voorzorg te maken, ter algemeene verdediging en generale
welvaart van den Staat ; desgelijks ook geld op het crediet van den
Staat op te nemen en over Gouvernements eigendom te disponeren.
deliberations of the Volksraad and to make notes of the trans-
actions, except in special cases when secrecy is necessary.
ART. XXII.* The Volksraad shall make no laws to pro-
hibit the inhabitants to assemble in a peaceful manner, or to
petition the Government to be relieved from difficulties, or to
obtain a change in any law.
ART. XXIII.* The furtherance of religion and education
shall be a subject for the care of the Volksraad.
ART. XXIV. The Dutch Reformed Church 1 shall be pro-
moted and supported by the Volksraad.
ART. XXV.* The Volksraad shall have the power to pass
a Burgher Law or Commando Law for the protection and safety
of this country.
ART. XXVI.* After this Constitution shall be finally con-
firmed, no change in the same shall be made without the agree-
ment of three-fourths of the Volksraad ; and before such
change can be made, a majority of three-fourths of the votes
in favour of it shall be necessary in two successive annual
sittings.
ART. XXVII.* The Volksraad shall have the powers to
impose taxes or diminish them, to pay the public debt, and to
make provision for the general defence and the general welfare
of the State, and likewise to take up money on the credit of
the State, and dispose of Government property.
1 Subsequently changed to ” De Nederduitsch Gereformeerde Kerk.”
292 ORANGE FREE STATE 11854-
PLIGTEN, MAGTEN, ENZ., VAN DEN PRESIDENT.
ART. XXVIII.* Daar zal een Staatspresident zijn.
ART. XXIX. De Staatspresident zal door het publiek l gekozen
worden ; echter zal de Volksraad een of meer personen tot die keuze
aanbevelen.
ART. XXX.* De Staatspresident zal voor vijf jaren aangesteld
worden, en zal bij aftreding weder verkiesbaar zijn.
ART. XXXI.* De Staatspresident zal het Hoofd van het Uitvoerend
Gezag zijn. Het toezigt van alle publieke departementen en de
uitvoering en regeling van alle zaken, in betrekking met publieke
diensten, zullen aan den President zijn toebetrouwd, die aan den
Volksraad verantwoordelijk zal zijn, en wiens handelingen of verrig-
tingen aan appel voor den Volksraad onderhevig zullen zijn.
ART. XXXII. De Staatspresident zal ten minste eenmaal in het
jaar 2 de dorpen bezoeken, den staat der kantoren en het gedrag der
ambtenaren gadeslaan, en de inwoners derzelver en des districts
gelegenheid geven hunne belangen op de dorpen voor te brengen.
ART. XXXIII.* De Staatspresident zal in de jaarlijksche Verga-
deringen van den Volksraad verslag doen van den staat des Lands en
der publieke dienst, zal denzelven met raad en advies dienen, en, indien
noodig, wetsontwerpen ter tafel leggen, zonder echter over dezelve
stem te mogen uitbrengen.
DUTIES, POWERS, ETC., OF THE PRESIDENT.
ART. XXVIII.* There shall be a State President.
ART. XXIX. The State President shall be chosen by the
public, 1 but the Volksraad shall recommend one or more pereons
for their choice.
ART. XXX.* The State President shall be appointed for
five years, and on vacating his office he shall be eligible for
re-election.
ART. XXXI.* The State President shall be the head of the
Executive Authority. The supervision of all public depart-
ments and the execution and management of all matters con-
nected with the public service, shall be entrusted to the Presi-
dent, who shall be responsible to the Volksraad, and whose
acts and deeds shall be subje’ct to appeal to the Volksraad.
ART. XXXII. The State President shall visit the towns at
least once a year, 2 shall observe the state of the offices and the
behaviour of the officials, and give an opportunity to the
inhabitants thereof and of the districts to lay their interests
before him in the towns.
ART. XXXIII.* The State President shall, in the annual
meetings of the Volksraad, report on the state of the country
and the public service, shall assist the same with counsel and
advice, and shall, if necessary, lay bills upon the table, without,
however, being allowed to vote on the same.
1 For this was substituted in 1868 : ” by the burghers possessing the
franchise.”
* The 1868 Constitution said : ” as often as possible.”
-1902] THE CONSTITUTION
ART. XXXIV.* De Staatspresident zal den Volksraad ook extra
kunnen bijeenroepen.
ART. XXXV.* De Staatspresident zal de magt hebben, om alle
ledige posten in de publieke, kantoren op te vullen, die open zullen
vallen tusschen de tijden der Vergaderingen van den Volksraad, onder-
worpen aan de bekrachtiging van dat ligchaam.
ART. XXXVI.* De Staatspresident zal het regt hebben, om
publieke ambtenaren te suspenderen.
ART. XXXVII.* De Staatspresident, met eene meerderheid van
den Uitvoerenden Raad, zal het regt van genade in alle crimineele
Vonnissen uitoefenen.
ART. XXXVIII. * De Staatspresident, met toestemming van den
Volksraad, verklaart oorlog en maakt vrede.
ART. XXXIX.* De Staatspresident zal conventien kunnen maken,
onderhevig aan de toestemming van den Volksraad.
ART. XL.* De Staatspresident zal geen traktaat kunnen maken,
zonder de toestemming van den Volksraad.
ART. XLL* De Staatspresident, of eenig Lid van den Uitvoerenden
Raad, zal te alien tijde het regt hebben, om den staat der finantien
als ook de boeken te inspecteren.
UlTVOERENDE RAAD.
ART. XLII.* Er zal een Uitvoerende Raad zijn, bestaande uit den
Landdrost van de hoofdstad, den Gouvernements Secretaris en drie
ART. XXXIV.* The State President shall further be at
liberty to summon an extraordinary session of the Volksraad.
ART. XXXV.* The State President shall have the power
to fill all vacant posts in the public offices which may become
vacant between the times of meeting of the Volksraad, but
subject to the ratification of that body.
ART. XXXVI.* The State President shall have the right to
suspend public officials.
ART. XXXVII.* The State President, with a majority of
the Executive Council, shall exercise the prerogative of mercy
in all criminal sentences.
ART. XXXVIII.* The State President, with the consent of
the Volksraad, declares war and concludes peace.
ART. XXXIX.* The State President shall have the power
to make conventions, subject to the consent of the Volksraad.
ART. XL.* The State President shall not have the power
to conclude any treaty without the consent of the Volksraad.
ART. XLL* The State President, or any member of the
Executive Council, shall have the right at all times to examine
the state of the finances as also the books.
EXECUTIVE COUNCIL.
ART. XLIL* There shall be an Executive Council consisting
of the Landdrost of the capital, the Government Secretary, and
294 ORANGE FREE STATE [1854-
Onofficieele Leden, gekozen door den Volksraad, om den President met
advies en assistentie te bedienen.
De President zal de voorzitter wezen, en eene beslissende stem
hebben.
ART. XLIIL* De Uitvoerende Raad zal op den tweeden Maandag
van elke tweede maand, en op zoodanige andere tijden als de President
mogt verlangen, in de hoofdplaats zitting houden.
ART. XLIV.* De Uitvoerende Raad zal jaarlijks aan den Volks-
raad verslag van zijne verrigtingen moeten doen.
ART. XLV.* Eene meerderheid van den Uitvoerenden Raad zal het
regt hebben om den Volksraad extra bijeen te roepen.
ART. XLVL* De President en Uitvoerende Raad zullen de magt
hebben om de Krijgswet te verklaren.
DE REGTERLIJKE MAGT.
ART. XL VII.* De Landdrost bekleedt de magt van Civielen Com-
missaris en Resident-Magistraat.
ART. XLVIIL* De Regterlijke magt wordt uitsluitend uitgeoefend
door de Geregtshoven, welke door de wet worden vastgesteld.
ART. XLIX.* De Wetgeving regelt insgelijks de crimineele regts-
pleging, alsmede die in Policiezaken, met dien verstande nogthans, dat
criminele zaken ter eerster instantie voor de Hoogere Hoven gebragt,
door eene Jury geoordeeld worden.
three Unofficial Members, chosen by the Volksraad to assist
the President with advice and assistance.
The President shall be the chairman and have a casting
vote.
ART. XLIIL* The Executive Council shall hold a session
in the capital on the second Monday of every second month,
and at such other times as the President may desire.
ART. XLIV.* It shall be the duty of the Executive Council
to make an annual report to the Volksraad of its transactions.
ART. XLV.* A majority of the Executive Council shall have
the right to summon the Volksraad for a special session.
ART. XLVL* The President and the Executive Council shall
have the power to declare martial law.
THE JUDICIAL POWER.
ART. XLVIL* The Landdrost shall hold the powers of Civil
Commissioner and Resident Magistrate.
ART. XLVIIL* The judicial power shall be exercised
exclusively by the courts of law which are established by law.
ART. XLIX.* Legislation shall also regulate the administra-
tion of criminal justice, as also that of police cases, provided
nevertheless, that criminal cases coming before the higher courts
in the first instance shall be judged by a jury.
-1902] THE CONSTITUTION 295
HEX KRIJGSSTELSEL.
ART. L. * De Veldkornetten zullen door en uit de burgers van hunne
wijken, bij meerderheid, gekozen worden.
ART. LI.* Een Veldkommandant zal voor elk district gekozen
worden door en uit deszelfs burgers.
ART. LIL* De gezamentlijke veldkommandanten en veldkornetten,
welke op een kommando vereenigd zijn, zullen kiezen uit hun midden,
ingeval van oorlog, hunnen eigenen Kommandant-Generaal, welke
generaal alsdan zijne instructien van den Staatspresident moet ont-
vangen. 1
ART. LIIL* Na den oorlog bestaat geen Kommandant-Generaal-
schap meer.
ART. LIV.* De veldkornetten moeten in hunne eigene wijken
woonachtig zijn en landeigendom daarin bezitten.
ART. LV.* De veldkommandanten moeten in hunne eigene dis-
tricten woonachtig zijn, vast eigendom ten bedrage van 200 Sterling
bezitten, en een jaar in net land gewoond hebben.
MENGEL ONDERWERPEN.
ART. LVL* Het Roomsch Hollandsch regt zal de Grondwet van
dezen Staat zijn, alwaar geene andere wet door den Volksraad gemaakt is.
ART. LVIL* De wet is voor alien gelijk ; met dien verstande, dat
THE MILITARY SYSTEM.
ART. L.* The Field-cornets shall be chosen by and from
among the burghers of their wards by majority of votes.
ART. LI.* A Field-commandant shall be chosen for each
district by and from among the burghers of the same.
ART. LIL* The Field -commandants and Field – cornets,
who are united on a commando, shall together, in case of war,
choose from their number their own Commandant-General,
which General shall thereupon receive his instructions from the
State President. 1
ART. LIIL* After the war the office of Commandant-General
shall no longer exist.
ART. LIV.* The Field-cornets shall be resident in their own
wards and be possessors of landed property therein.
ART. LV.* The Field-commandants shall be resident in
their own districts, possess immovable property to the value
of 200 sterling, and have resided in the country for a year.
MISCELLANEOUS SUBJECTS.
ART. LVL* The Roman-Dutch Law shall be the principal
law of this State, where no other law has been made by the
Volksraad.
ART. LVIL* The law is for all alike, always understanding
1 The 1868 Constitution added a provision, by which the Field -cornets
and Field-commandants could, on any just grounds, dismiss the Commandant-
General elected, and appoint another in his place.
296 ORANGE FREE STATE [1854
de regter alle wetten met onpartijdigheid zal uitoefenen, zonder
aanzien van personen.
ART. LVIII.* Elk inwoner is gehoorzaamheid aan de wet en de
overheid verschuldigd.
ART. LIX.* Het eigendomsregt wordt gewaarborgd.
ART. LX.* De persoonlijke vrijheid, mits blijvende binnen de
bepalingen der wet, wordt gewaarborgd.
ART. LXL* De vrijheid der drukpers wordt gewaarborgd, mits
blijvende binnen de wet.
De Voorzitter van den Volksraad,
H. O. DREYER.
De Secretaris,
H. SYBOUTS.
Verzamelingvan Besluiten . . . v.d. O.V.S. [1867 ?].
[This work has a separate pagination for each statute.]
No. 160. ORDONNANTIE. [15 Ap. 1854.]
No. 3, 1854.*
Ter bepaling en vaststelling van de Nederduitsche of Hollandsche
taal als de wettige hoofdtaal van den Oranjevrijstaat.
NADEMAAL het gemak en de geregeldheid der publieke bezigheid
vereischen ; dat in alle Geregtshoven en Kantoren in dezen Staat,
eene officieele taal bepaald en vastgesteld worde ; en aangezien de
groote meerderheid der inwoners van dit Land van Hollandsche
afkomst en weinig met andere talen bekend is, en dat het dus onge-
that the judge shall exercise all laws with impartiality and
without respect of persons.
ART. LVIII.* Every inhabitant owes obedience to the law
and to the authorities.
ART. LIX.* Right of property is guaranteed.
ART. LX.* Personal freedom, provided the provisions of the
law are not contravened, is guaranteed.
ART. LXL* The freedom of the press is guaranteed, pro-
vided the law is not contravened.
No. 160. ORDINANCE. [15 Ap. 1854.]
No. 3, 1854.!
For prescribing and establishing the Dutch language by law as
the chief language of the Orange Free State.
WHEREAS the comfort and the regularity of the public
service demand that in all Courts of Justice and in all Offices
in this State one official language shall be prescribed and
established ; and considering that the great majority of the
inhabitants of this country are of Dutch descent and are
but slightly familiar with other languages, and that it would
1 Finally repealed by Procl. No. 3 of 1902 (A).
1854] FIELD-CORNETS 297
legen zou zijn dat eenige andere dan de Hollandsche taal in regterlijke
verrigtingen, zoowel als in de civiele dienst gebezigd zoude worden.
Zij het derhalve verordend, dat van den eersten dag van Junij, aan-
staande af, de Hollandsche taal de hoofdtaal in alle Geregtshoven en
publieke Kantoren, door dezen Staat zijn zal ; en dat alle dagvaardingen.
vonnissen, uitspraken, orders, lastschriiten, instructien, ordonnantien,
proclamation, enz., in de Hollandsche taal geschreven, uitgevaardigd
en gepubliceerd zullen worden ; en verder dat alle brieven,
memories, of andere communicatien, aan dit Gouvernement gerigt,
indien niet in de Hollandsche taal opgesteld, met eene Hollandsche
vertaling zullen moeten vergezeld worden.
En zij het nader verordend, dat alle klerken in de Landdrosts en
andere publieke Kantoren beide met de Hollandsche en Engelsche talen
genoeg zullen moeten bekend zijn, om als tolkers in alle zaken te
kunnen ageren.
Gegeven te Bloemfontein, dezen 15 den dag van April 1854.
Uit last van den Volksraad.
J. P. HOFFMAN, Fung. President.
(Bij order) WILLIAM COLLINS, Fung. Secretaris.
Verz. van Besl. v. d. O.V.S. [1867 ?].
No. 161. INSTRUCTIE VOOR DE VELDCORNETTEN VAN DEN
ORANJEVRIJSTAAT. [16 Ap. 1854.]
ART. i. De Veldcornetten moeten ieder in zijne wijk worden
beschouwd als ondergeschikte magistraats-personen, en behooren als
zoodanig geeerbiedigd te worden.
ART. 2. Zij dienen niet uit het oog te verliezen, dat zij als over-
therefore be inconvenient to employ any other than the Dutch
language in judicial proceedings or in the civil service ;
Be it therefore ordained, that from the first day of June,
next, the Dutch language shall be the chief language in all
Courts of Justice and public Offices throughout this State ;
and that all summonses, judgments, sentences, orders, decrees,
instructions, ordinances, proclamations, etc., shall be written,
issued, and published in the Dutch language ; and further,
that all letters, memorials, or other communications, addressed
to this Government, if not drawn up in the Dutch language,
shall be accompanied by a Dutch translation.
And be it further ordained that all clerks in the Landdrosts’
and other public Offices shall have a sufficient knowledge of
both the Dutch and the English language to be able to act as
interpreters in all cases.
No. 161. INSTRUCTIONS TO THE FIELD-CORNETS OF
THE ORANGE FREE STATE. [16 Ap. 1854.]
ART. i. The Field-cornets must be regarded in their re-
spective wards as lesser magistrates, and ought to be respected
as such.
ART. 2. They should not lose sight of the fact that as
298 ORANGE FREE STATE [1854
heidspersonen de achting en toegenegenheid hunner burgers alleen
kunnen verwerven door hen met bescheidenheid te behandelen, en
een voorbeeld te geven van die pligten, welke zij van anderen vorderen.
ART. 3. Zij moeten trachten alle geschillen onder de bewoners
hunner wijken, waaruit processen of vijandschap kan outstaan, te
schikken of te bemiddelen ter vereeniging van parti j en.
ART. 4. [De Veldcornetten moeten zich immer stipt onpartijdig
gedragen.]
ART. 5. De Veldcornetten zijn gehouden te letten op de rust en
goede orde in hunnen omtrek, en niet te gedoogen dat dezelve door
iemand der bewoners, wie hij ook zij, worden gestoord.
ART. 6. Behalve de Algemeene Wetten, Proclamation, Ordonnantien
en andere Instruction van Gouvernementswege, ontvangen zij alle
orders door den Landdrost of den Staatspresident.
ART. 7. De Veldcornetten moeten alle gevangenen onder behoorlijke
bewaring aan den naastvolgenden Veldcornet zenden, die gehouden
is dezelven over te nemen, en op dezelfde wijze verder te doen bezorgen,
en zulks tot dat ter bestemder plaatse zullen zijn aangekomen.
ART. 8. De Veldcornetten geven van alle buitengewone gebeurte-
nissen, waaromtrent hierin niets is bepaald, kennis aan den Landdrost,
en daar alle voorvallen niet kunnen worden voorzien, blijft het aan de
voorzigtigheid van iederen Veldcornet aanbevolen, om, wanneer de
tijd, welke tot het doen van rapport en ontvangen van orders niet kan
persons in authority they can win the respect and goodwill
of their burghers only by acting towards them in a modest
manner and setting an example in the fulfilment of those duties
which they demand from others.
ART. 3. They shall try to settle amicably all disputes among
the inhabitants of their wards, out of which legal action or
enmity might arise, and to act as mediators in order to reconcile
parties.
ART. 4. [The Field-cornets shall at all times act with strict
impartiality.]
ART. 5. The Field-cornets are held to see to the peace and
good order of their neighbourhood, and not to permit the same
to be disturbed by any of the inhabitants whatever.
ART. 6. Besides the general laws, proclamations, ordinances,
and other instructions on the part of the Government, they
shall receive all commands through the Landdrost or the State
President.
ART. 7. The Field-cornets shall send all prisoners under a
proper guard to the next Field-cornet, who is obliged to take
them over and to send them farther on their way in the same
manner, and so on till they shall have arrived at their
destination.
ART. 8. The Field-cornets shall report to the Landdrost all
unusual occurrences about which no provision is made here,
and as all events can not be foreseen, it is recommended to
the vigilance of every Field-cornet, when the time needed for
reporting any matter and receiving commands thereon cannot
1854] FIELD-CORNETS 299
verloopen zonderjwezenlijk nadeel voor de belangen des Lands, of
eenige ingezetene, het kwaad dadelijk te stuiten, en des noods met
geweld tegen te gaan, om terstond daarvan rapport te maken aan
zijnen Landdrost.
ART. 9. [Zij moeten Gouvernements brieven, enz. met spoed
verzenden.]
ART. 10. [Voorziening als een Veldcornet zich buiten zijnen omtrek
begeeft.]
ART. ii. Alle assistent Veldcornetten, aangesteld onder de voor-
zieningen van den Landdrost, worden geautoriseerd en gerekwireerd
alle zoodanige zaken en dingen te doen en te verrigten als tot de pligten
van hun ambt behooren, en zij zullen, zoo lang als zij in officie blijven,
geregtigd zijn tot alle zoodanige voorregteh, welke door de Veldcornetten
genoten worden.
ART. 12. De Veldcornetten en assistent Veldcornetten zullen, zoo
lang zij in zoodanig ambt blijven, bevrijd zijn van de jaarlijksche
recognitie hunner woonplaatsen.
ART. 13. In alle gevallen van moord of misdaden, gepleegd door
middel van geweld, . . . zal de Veldcornet . . . zich dadelijk naar
de plaats moeten begeven/waar die misdaad gepleegd is, en nauwkeurig
alle sporen van geweld moeten onderzoeken. . . .
ART. 14. Indien de gewonde of beleedigde persoon in leven is,
wanneer de schouwing plaats heeft, zal de Veldcornet . . . onderzoek
moeten doen naar den aard en de oorzaken der wonden. . . .
ART. 15. leder Veldcornet wordt gelast om elk, die eenige misdaad
elapse without positive injury to the interests of the Country
or to any of the inhabitants, to check the evil immediately and,
if necessary, to oppose it by force, and to report thereon at once
to his Landdrost.
ART. 9. [They shall despatch Government letters, etc.
with speed.]
ART. 10. [Provision for carrying out the duties of any
Field-cornet who goes outside his ward.]
ART. ii. All Assistant Field-cornets, appointed under
directions from the Landdrost, are authorised and required
to do and perform all such matters and things as belong to the
duties of their office, and they shall, so long as they remain in
office, be entitled to all such privileges as are enjoyed by Field-
cornets.
ART. 12. The Field-cornets and Assistant Field-cornets,
as long as they hold these offices, shall be exempt from the
annual acknowledgment on their farms.
ART. 13. In all cases of murder or other crimes committed
by violent means . . . the Field-cornet . . . shall immedi-
ately betake himself to the spot where such crime has been
committed, and shall examine carefully all traces of
violence. . . .
ART. 14. If the wounded or insulted person is alive when
the examination takes place, the Field-cornet shall enquire
into the nature and the causes of the wounds. . . .
ART. 15. Every Field-cornet is instructed to arrest any
300 ORANGE FREE STATE [1654
of inbreuk op de publieke rust in zijne tegenwoordigheid zal plegen, te
arresteren, alsmede cen ieder dien hij op goede gronden zal vermoeden
te hebben gepleegd eenigen moordschuldigen doodslag, verkrachting,
diefstal, of aanranding met voornemen eenige misdaad te plegen, of
waarin eene gevaarlijke wond is toegebragt, enz.
ART. 1 6. Het staat iederen Veldcornet vrij, die hierbij geautoriseerd
en gelast is, eenig persoon te arresteren, die men weet of vermoedt, dat
eenige misdaad of overtreding heeft gepleegd ; tot dat einde de deuren
van ieder huis, waarin men weet of verondersteld, dat zoodanig persoon
zich bevindt, open te breken en dezelve te doorzoeken, mits zoodanig
Veldcornet of privaat persoon geenen toegang zal hebben kunnen
bekomen, na dezelve overluid te hebben gevraagd, en kennis te hebben
gegeven van het einde waarom hij in zoodanig huis verlangt te worden
toegelaten.
ART. 17. Een ieder mannelijk onderdaan tusschen de 16 en 60 jaren
oud, die daartoe geroepen wordt, wordt hierdoor gerequireerd eenige
speciale Magistraatspersoon, Veldcornet, Assistent Veldcornet of
Constabel, te helpen in het ten uitvoer leggen hunner pligten.
ART. 1 8. Alle Veldcornetten zullen, wanneer zij tot dat einde worden
opgeroepen, alle hulp en bijstand moeten verleenen aan alle speciale
Magistraatspersonen, in het bedwingen van alle oproer, openbare orde
en rustverstoring. . . .
ART. 19. Ieder Veldcornet en Assistent Veldcornet is geautoriseerd
en wordt mits dezen gelast den wagen of de voertuigen van elk hande-
laar te doorzoeken, welke zij verdacht houden vuurwapenen of
one who commits any crime or breach of the public peace in
his presence, as also every one whom he shall suspect on good
grounds of having committed culpable homicide, rape, theft,
or assault with the intention to perpetrate any crime, or by
which a serious wound was inflicted, etc.
ART. 16. Every Field-cornet is entitled, as he is hereby
authorised and required, to arrest any person who is known
or suspected of having committed any crime or contravention ;
to force open, with that object, the doors of any house in which
it is known or supposed that such person is, and to search
the same, but only when such Field-cornet or private person
shall not have been able to gain admittance after having
demanded it aloud and stated the object for which he wishes
to be admitted to such house.
ART. 17. Every male subject between the ages of 16 and
60 years, who may be called upon, is hereby required to assist
any special Magistrate, Field-cornet, Assistant Field-cornet
or Constable, in the execution of their duties.
ART. 18. All Field-cornets shall, when they are called
upon to do so, give every help and assistance to all special
Magistrates in quelling riots and disturbances of the public
peace. . . .
ART. 19. Every Field-cornet and Assistant Field-cornet
is authorised and is hereby required to search the wagon or
other vehicle of every trader, when they suspect that the snme
contains fire-arms or ammunition not mentioned in the certifi-
1856] ELECTIONS 301
ammunitie tc bevatten, niet vermeld in het certificaat, dezelve in beslag
te nemen en aan den Landdrost dadelijk kennis te geven en op te
zenden.
ART. 20. Alle Veldcornetten of provisionele Veldcornetten worden
met dezen gelast op licenties van de handelwagens, die hunne wijken
passeren, aan de keerzijde hunne namen te schrijven.
ART. 21. Alle Veldcornetten zullen verpligt zijn de namen van alle
dienstdoende burgers op te geven aan het kantoor van den Landdrost
van hun district.
J. P. HOFFMAN, Fung. Staatspresident.
(Bij order) J. GROENENDAAL, Staatssecretaris.
BLOEMFONTEIN, 16 April 1854.
Verz. van Besl. v. d. O.V.S. [1867 ?].
No. 162. ORDONNANTIE. 1 [12 Feb. 1856.]
No. i, 1856.
Tot regeling der verkiezing van den Staatspresident en andere
ambtenaren, en andere noodige bepalingen omtrent bijzonderheden
in de Constitutie vervat, die niet voldoende zijn omschreven, of
waaromtrent geene voorzieningen zijn gemaakt, vastgesteld
door den HEd. Volksraad, in zijne Vergadering, gehouden te
Bloemfontein, in den Oranjevrijstaat, op den i2den dag der
maand Februarij, in het jaar 1856.
NADEMAAL er bij de Constitutie van den Staat, gedateerd den 10 den
April 1854, eenige bepalingen gemaakt zijn, zonder de wijze van
cate, to take possession of the same, and to send the same and
to give immediate information to the Landdrost.
ART. 20. All Field-cornets and Provisional Field-cornets
are hereby instructed to sign their names on the back of the
licenses of trading-wagons which pass through their wards.
ART. 21. All Field-cornets shall be obliged to hand in at
the Landdrost’s office of their district the names of all burghers
who render service.
No. 162. ORDINANCE. 1 [12 Feb. 1856.]
No. i, 1856.
To regulate the election of the State President and other
officials ; and other necessary regulations regarding par-
ticular points in the Constitution which have not been
properly denned, or with regard to which the necessary
provision has not been made, confirmed by the Volksraad
in its session held at Bloemfontein in the Orange Free
State, on the I2th day of the month of February, in the
year 1856.
WHEREAS in the Constitution of the State, dated loth
April 1854, some regulations have been made without defining
1 Repealed by Procl. No. 3 of 1902 (A).
302 ORANGE FREE STATE [1856
uitvoering, of het in werking brengen van zoodanige bepalingen, te
regelen of te omschrijven :
Zoo is het, dat de Raad, om alle twijfelingen en verschil van gevoelen,
dat daardoor zou kunnen ontstaan, te vermijden en voor te komen,
heeft goedgevonden vast te stellen en te bepalen :
BETREKKELIJK DE WIJZE WAAROP DE VERKIEZING VAN EENEN
PRESIDENT, LID DES RAADS, VELDKOMMANDANT OF VELDKORNET
ZAL GEREGELD WORDEN.
i . [Kennisgeving van een te houden kiezing van een Staatspresident
geschiedt in de Gazette of Courant.]
2-13. [De wijze waarop gestemd moet worden en waarop klachten
in verband met de kiezing gemaakt en gehoord moeten worden.J
14. Geene stemmen zullen voor eenen Staatspresident of lid van
den Volksraad worden aangenomen, tenzij de persoon, voor wien
gestemd zal worden, vooraf eene geschrevene uitnoodiging zal hebben
bekomen ; voor eenen President geteekend, namens den Volksraad,
door den voorzitter van den Raad, of anders door ten minste 25
stemgeregtigden, en voor een raadslid door ten minste 10 stemgereg-
tigden ; zullende zoodanige uitnoodiging met de namen der onder-
teekenaren en het toestemmend antwoord in de Courant moeten worden
gepubliceerd, ten minste 28 dagen voor dat eenige kiezing zal mogen
plaats vinden.
or providing for the manner of executing or bringing into
operation such regulations :
Now therefore the Raad, in order to avoid and prevent all
doubts or differences of opinion, which might arise therefrom,
has thought fit to affirm and declare :
WITH REGARD TO THE MANNER IN WHICH THE ELECTION OF
A STATE PRESIDENT, MEMBER OF THE RAAD, FIELD-
COMMANDANT OR FlELD-CORNET SHALL BE REGULATED.
I. [Notice shall be given in the Gazette or Courant of any
election for a State President about to be held.]
2-13. [The manner of voting and of making and hearing
complaints in connection with the election.]
14. No votes for a State President or member of the
Volksraad shall be accepted, unless the person for whom the
votes are recorded shall have received beforehand a written
invitation, signed in the case of the President, by the chair-
man of the Volksraad in the name of that body, or by at least
25 persons possessing the franchise, and in the case of a member
of the Raad by at least 10 persons possessing the franchise ;
and such invitation, with the names of the signatories and the
reply accepting nomination, shall be published in the Courant
at*least 20 days before any such election shall be allowed to
take place.
1856] PREROGATIVE OF MERCY 303
15. [Hoe de stemmen geteld moeten worden.]
1 6. [De gekozen Staatspresident verschijnt voor den Raad en legt de
ambtseed af .]
17. De lijsten tot kiezing van een raadslid zullen bij den Raad
worden ingeleverd. . . .
1 8. De lijsten tot kiezing van eenen veldkommandant of veldkornet
zullen . . . aan den Gouvernementssecretaris worden ingezonden. . . .
[Schedules A en B volgen hier.]
BETREKKELIJK DE UITOEFENING VAN HET REGT VAN GENADE.
Daar omtrent dit punt in . . . de Constitutie zeer onbepaald
gesproken wordt, wordt het bij dezen vastgesteld en verklaard :
i. Dat door crimineele vonnissen, waarover de Staatspresident met
den Uitvoerenden Raad het regt van genade heeft, dat is, van vrij-
schelding of vermindering van straf, zullen worden verstaan, vonnissen
op de grovere misdaden van moord, manslag, brandstichting, huis-
braak, dieverijen en dergelijke, voor de Hoogere of Rondgaande Geregts-
hoven geprosequeerd, doch dat de President alleen geregtigd zijn zal,
om vrijlating of vermindering van straf of boeten te authoriseren, op
vonnissen door de mindere Geregtshoven van de Landdrosten of Land-
drost en Heemraden uitgesproken, of van boeten, verbeurd wegens het
niet tijdig betalen van Heerenregten, of onder postcontracten en
dergelijke overtredingen.
15. [How the votes shall be counted.]
16. [The State President elected shall appear before the
Raad and take the oath of office.]
17. The lists for the election of a member of the Raad shall
be sent in to that body. . . .
18. The lists for the election of a Field-commandant or
Field-cornet shall be sent … to the Government Secre-
tary. . . .
[Schedules A and B follow here.]
REGARDING THE EXERCISE OF THE RIGHT OF MERCY.
As mention is made of this point in a very indefinite manner
in … the Constitution, it is hereby affirmed and declared :
i. That by criminal sentences in which the State President
with the Executive Council has the right of mercy, that is, of
remitting or mitigating punishments, shall be understood,
sentences for the more serious crimes of murder, manslaughter,
arson, burglary, theft and similar offences prosecuted before
the Higher or Circuit Courts ; but that the President by himself
shall be empowered to authorise a remittance or mitigation of
punishments or fines in sentences pronounced by the lower
Courts of Landdrost^orLanddrost andlHeemraden, or of sums
forfeited on account of not paying any|Heerenrechten in time,
or under postal contracts or similar offences.
304 ORANGE FREE STATE [1856
BETREKKELIJK DE VERKLARING VAN OORLOG, OF HET MAKEN
VAN VREDE.
Zij het mits dezen vastgesteld en bepaald :
i. Dat onder art. 36 van de Constitutie ‘ niet zal worden verstaan,
dat de Staatspresident, zonder vooraf bekomene goedkeuring van den
Volksraad, het regt niet hebben zal om te handelen met of zonder advies
van den Uitvoerenden Raad ; maar dat hij gehouden zal zijn om in
elk der hieronder vermelde gevallen, of die van dien aard zijn, dadelijk
maatregelen te nemen om, indien vereischt, door geweld van wapenen
de regten van dezen Staat te doen gelden of verdedigen, en het leven, de
goederen en regten van de ingezetenen van den Staat te beschermen, als :
” In geval van vijandelijke invallen in den Staat, of bedreigde
aanvallen van buiten, of van molesten of bezitneming van eenige
private of publieke goederen of eigendommen, ongeoorloofde of gevaar-
lijke zamenrottingen, veedieverijen, landlooperijen, publieke aanran-
dingen of geweld, door enkele personen of benden, van eenige volken
van binnen of buiten de bewoonde of verklaarde grenzen van dezen
Staat, zal de Staatspresident gehouden en geregtigd zijn om onverwijld
de noodige stappen te nemen, om de geweldenaars te stuiten, te verdrij-
ven, gewapend aan te vallen, gevangen te nemen, en te achtervolgen
over en buiten de grenzen van dezen Staat, wanneer zulks vereischt
mogt worden, ofschoon daardoor een’ oorlog zoude kunnen outstaan ;
mits van alle zulke handelingen aan den Volksraad verslag doende.”
REGARDING THE DECLARATION OF WAR AND THE MAKING
OF PEACE.
Be it hereby affirmed and laid down :
i. That by art. 36 of the Constitution 1 it shall not be under-
stood that the State President, without having first obtained
the approval of the Volksraad, shall not have the right to act
with or without the advice of the Executive Council ; but that
he shall be held, in every case mentioned below or, of a like
nature, to take measures immediately, by force of arms if
necessary, in order to maintain or defend the rights of this
State, and to protect the lives, the property and the rights of
the inhabitants :
” In the event of hostile invasions of the State, or
threatened attacks from outside, or meddling with or taking
possession of any private or public property, unauthorised
or dangerous conspiracies, thefts of cattle, vagrancies, public
assaults or violence, by individual persons or bands of persons
from within or without the inhabited or declared limits of this
State, the State President shall be required and authorised
to take the necessary measures immediately to repulse, expel,
attack with arms, take captive or follow, the perpetrators across
and beyond the limits of this State, whenever it shall be
necessary, even though a war could be caused thereby ; pro-
vided that he shall give an account of all such actions to the
Volksraad.”
1 i.e. the Constitution of 1854. See art. xxxviii., p. 293.
1856] THE EXECUTIVE 305
2. Dat door art. 38 J van de Constitutie niet moet worden verstaan,
dat de Staatspresident niet zal vermogen eenig verdrag of overeen-
komst met eenige natie, volkstam, of Gouvernement aan te gaan,
zonder vooraf de toestemming van den Volksraad te hebben bekomen ;
maar dat zoodanige overeenkomst of vejdrag alleen van kracht zal
zijn, tot dat door den Volksraad zal worden beslist of dezelve zal worden
veranderd, verbeterd, of geheel vernietigd.
MET BETREKKING TOT DEN UlTVOERENDEN RAAD.
Daar in de Constitutie geene voorzieningen zijn gemaakt met
betrekking tot de regeling der handelingen van den Uitvoerenden
Raad, zoo wordt mits dezen vastgesteld en bepaald :
1. Dat de officieele leden zullen beschouwd worden te bestaan uit
den Landdrost van de hoofdplaats, en den Gouvernementssecretaris,
of den persoon of personen die bij hunne afwezigheid als anderszins
in hunne betrekkingen zijn geplaatst, en als zoodanig aan de hoofd-
plaats ageren.
2. Dat drie der leden van den Uitvoerenden Raad een quorum zullen
uitmaken.
3. Dat geen lid van den Uitvoerenden Raad stemmen zal in eenige
zaak of kwestie waarin als belanghebbende of wegens familiebetrekking,
of uit eenige andere oorzaak, een regter onbevoegd zou zijn te stemmen
of te handelen.
4. Dat in gevallen van noodzakelijkheid, of in geschillen tusschen
private personen, wanneer partijen daartoe consenteren, en er geen
2. That art. 38* of the Constitution must not be under-
stood to mean that the State President shall not be able to
conclude any treaty or agreement with any nation, tribe or
government without having first obtained the consent of the
Volksraad ; but that such agreement or treaty shall be of force
only until the Volksraad shall decide whether the same shall
be amended, improved or completely nullified.
REGARDING THE EXECUTIVE COUNCIL.
Whereas in the Constitution no provision has been made
as regards the regulation of the activities of the Executive
Council, therefore it is hereby affirmed and laid down :
1. That the official members shall be regarded as consisting
of the Landdrost of the capital and the Government Secretary,
or of the person or persons who in their absence or otherwise
are placed in their offices and who act as such in the capital.
2. That three members of the Executive Council shall
form a quorum.
3. That no member of the Executive Council shall vote
on any matter or question wherein, as an interested party or
on account of family relationship or for any other reason, a
judge would be incompetent to vote or to act.
4. That in all cases of necessity, or in differences between
private persons, when the parties shall agree thereto and no
1 See art. xl., p. 293.
20
306 ORANGE FREE STATE [1856
quorum in den Raad kan worden bekomen, de Staatspresident zal
mogen beslissen, of op eigene verantwoording handelen.
5. Dat met ultimo Januarij in elk jaar de oudste der onomcieele
leden van den Uitvoerenden Raad zal uit dienst treden, en een ander
gekozen worden ; doch hij zal weder kunnen worden ingeroepen.
6. Een onomcieel lid resignerende, stervende, of zijne woonplaats
verlatende, en zich ter woon begevende op eenen afstand van meer
dan 30 Engelsche mijlen van de hoofdplaats, of op eene andere wijze
zijne plaats in den Raad ontruimende, zal de President net regt hebben
eenen anderen te benoemen en aan te stellen, onder nadere approbatie
van den Volksraad.
7. Door een onomcieel lid zal worden verstaan iemand, die in geene
publieke betrekking is, waarvoor hij salaris uit de algemeene landskas
geniet.
8. De Uitvoerende Raad zal zijne eigene Regulation, betrekkelijk
zijne eigene handelingen, of betrekkelijk zaken die voor denzelve, als
Uitvoerend Gezag, of als Hof van Appel * gebragt worden, mogen
vervaardigen en doen observeren, onderworpen aan de goed of afkeu-
ring van den Volksraad.
9. Wanneer de Landdrost van de hoofdplaats in eenige zaak die voor
den Uitvoerenden Raad gebragt wordt, ambtshalve zal zijn betrokken
geweest, zal de President een ander in zijne plaats mogen aanstellen. 2
quorum of the Council can be got together, the State President
shall be allowed to decide or act on his own responsibility.
5. That on the last day of January in each year the oldest
of the unofficial members of the Executive Council shall vacate
his office and another be chosen ; but that he shall be re-
eligible.
6. An unofficial member resigning, dying, or leaving his
place of residence and going to reside at a distance of more
than 30 English miles from the capital, or in any other way
vacating his seat in the Council, the President shall have
the right to nominate and appoint another, subject to the
approval of the Volksraad.
7. By an unofficial member shall be meant one who does
not hold any public office for which he receives a salary from
the public treasury.
8. The Executive Council shall be at liberty to draw up and
cause to be observed its own regulations regarding its activities,
or regarding matters which are before it in its capacity as
the executive authority or as a Court of Appeal, 1 subject to
the approval or disallowance of the Volksraad.
9. When the Landdrost of the capital has been concerned,
in his capacity as such, in any matter which is brought before
the Executive Council, the President shall be authorised to
appoint another person in his place. 2
1 The words in italics do not appear in the law as published in the 1892
compilation. The High Court set up in 1875 became the Court of Appeal.
2 The 1892 compilation has a further article, by which the payment of
unofficial members of the Executive was provided for.
1856] THE JUDICIARY 307
BETREFFENDE DE REGTERLIJKE MAGT.
Wordt bij dezen vastgesteld en bepaald :
1. Het Rondgaande Hof van Landdrosten heeft jurisdictie in alle
civiele zaken, tot eenig bedrag, en van welken aard ook, in net Hof
bepaald, voor elk district of afdeeling, en daar zitting houdende ; en in
zoodanige zaken als van het Rondgaande Hof van eene andere plaats,
op verzoek van partijen, of om andere redenen, naar zoodanig Hof
mogten zijn gerefereerd geworden, doch zal in alle civiele actien van het
Rondgaande Hof appel zijn naar den Uitvoerenden Raad, en de notulen
van het proces door den Registrateur van het Hof moeten worden
gehouden en gecertificeerd.
2. Elke Landdrost zal geregtigd zijn tusschen de zittingen van het
Rondgaande Geregtshof, in zijn district, te fungeren als gecommitteerd
lid van het gemelde Hof, en als zoodanig mogen handelen in naam van
het Hof voormeld, in het beleggen van eenig interdict of beslag op vaste
en losse eigendommen, of arrest op personen, of het cntheffen, van
zoodanig interdict, beslag of arrest, na verhoor van de partijen. . . .
3. Het Rondgaande Hof van Landdrosten heeft jurisdictie in alle
crimineele zaken, voor eenige misdaad of overtreding hoegenaamd,
begaan of gepleegd in het district of afdeeling waar het hof zal zitting
houden ; doch zal geen vonnis tegen eenig persoon door dat Hof
mogen worden uitgebragt, dan nadat eene uitspraak van schuldig door
eene jury of raad van gezworenen, bestaande uit zes of negen personen,
tegen den beschuldigde zal zijn ingebragt. Doch zal het Hof op daartoe
REGARDING THE JUDICIAL POWER.
It is hereby affirmed and laid down :
1. The Circuit Court of Landdrosts shall have jurisdiction
hi all civil cases, to any amount and of whatever nature,
laid down in Court, for every district or division and holding a
session there ; and in such cases as may have been referred
to it from the Circuit Court of any other place at the request
of the parties, or for any other reason ; but in all civil actions
of the Circuit Court there shall be an appeal to the Executive
Council, and the minutes of the process shall be kept and
certified by the Registrar of the Court.
2. Every Landdrost shall be entitled, between the sittings
of the Circuit Court in his district, to act as a commissioned
member of the said Court, and shall, as such, act in the name
of the said Court in drawing up any interdict or attachment
of immovable or movable property, or in arresting persons or
raising such interdict, attachment or arrest, after hearing
the parties. . . .
3. The Circuit Court of Landdrosts has jurisdiction hi all
criminal cases over any offence or contravention of the law
whatsoever, committed or done in the district or division where
the Court shall hold its sitting ; but no sentence against any
person shall be pronounced by the said Court, until after a
verdict of guilty shall have been brought against the accused
by a jury or council of jurors consisting of six or nine persons.
308 ORANGE FREE STATE [1856
bestaande gegronde redenen, de teregtstelling van eenige zaak naar
het Rondgaande Geregtshof, op eene andere plaats zitting houdende,
mogen verwijzen, en in zulk ander geval zal zulk ander Hof competent
zijn.
4. Onder reeds vastgestelde bepalingen, of wanneer de Staats-
president redenen daartoe zal zien, zal een Rondgaand Geregtshof, op
eene plaats zitting houdende, jurisdictie hebben in, en geregtigd zijn
om zaken, zoowel civiel als crimineel, van een ander district of afdeeling
voor zich te doen teregt stellen, en daarop vonnis uitspreken ; doch
zal in zulk geval tijdige kennis moeten worden gegeven, opdat partijen
en getuigen in tijds kunnen worden geciteerd.
5. Er zal een Hof van appel zijn in alle zaken, die voor de mindere
Geregtshoven van Landdrosten of Landdrosten en Heemraden gediend
hebben naar het Rondgaande Geregtshof.
6. Totdat anders daaromtrent zal zijn voorzien, zal de Uitvoerende
Raad het Hof van appel zijn in alle civiele zaken, die gediend hebben
voor het Rondgaande Hof, hetzij in appel of ter eerster instantie. 1
7. In crimineele zaken bestaat geen appel, doch beroep bij rekwest
op den Uitvoerenden Raad, ingeval van eenige klagte tegen het Hof
waarvoor de zaak gediend heeft, wegens ongeregeldheid, parti jdigheid,
of verkeerde toepassing van de wet, of weigering om de geoffereerde
getuigen of bewijzen aan te nemen of het aannemen van getuigen en
bewijzen, die volgens de wet niet competent zijn, enz. In welke gevallen
de Staatspresident de uitoefening der straf zal mogen opschorten, en de
But the Court shall be able to refer for trial any case to any
Circuit Court sitting at another place, for any good reason
for such transference, and in such case such other Court shall
be competent.
4. According to regulations already laid down, or when
the State President shall see cause for it, any Circuit Court
sitting at any place shall have jurisdiction and shall be entitled
to have civil and criminal cases brought for trial before it from
any other district or division, and to pronounce judgment
therein ; but in such case sufficient notice shall be given so
that parties and witnesses may be summoned in time.
5. There shall be a Court of Appeal to the Circuit Court in
all cases which have come before the lower Courts of Land-
dro ts or Landdrosts and Heemraden.
6. Till other provision shall be made therein, the Executive
Council shall be the Court of Appeal in all civil cases, which
have come before the Circuit Court, whether on appeal or in
the first instance. 1
7. In criminal cases there shall be no appeal, but only a
reference by petition to the Executive Council, in case of any
complaint against the Court before which the case has been
tried, on account of irregularity, partiality or a wrong applica-
tion of the law, or refusal to accept the witnesses called or the
evidence produced, or acceptance of witnesses and evidence
which are not competent according to law, etc. In which
1 Cf . the law relating to the higher courts, p. 326.
1856] THE JUDICIARY 309
zaak voor den Uitvoerenden Raad in revisie (review) doen komen en
omtrent de punten in geschil uitspraak doen, en zoodanige bevelen
geven als de Raad mogt goedvinden.
8. De Staatspresident zal den tijd wanneer, en de plaats waar de
Rondgaande Geregtshoven zullen sessie houden, bepalen. . . .
9. Wanneer door ziekte of andere onvermijdelijke toevallen, of
wegens persoonlijk belang of familie-betrekking, in eene civiele zaak
voor het Rondgaande Geregtshof een of meer der Landdrosten ver-
hinderd zullen worden te zitten, zal het Hof, op verzoek van partijen,
de zaak naar eene andere plaats mogen verwijzen, of anders een of meer
Heemraden, Vrederegters of Procureurs mogen aanstellen, om met ten
minste een der Landdrosten in de plaats van den afwezigen of
onbevoegden Landdrost te zitten.
10. In crimineele zaken zal de Landdrost van het district, waar de
zaak dient, of de Landdrost die door het Hof daartoe gekozen wordt,
voorzitten. . . .
IT. Het vonnis zal bij meerderheid van stemmen door het Hof
worden iiitgesproken.
12. Geen vonnis waardoor de doodstraf is uitgesproken, zal ten
uitvoer worden gebragt, dan nabekomen/mf van den Staatspresident. . . .
13. Bij het overzenden der stukken zullen de Landdrosten een . . .
rapport aan den President toezenden. . . .
cases the State President shall be able to suspend the execution
of the sentence and to bring the case in review before the
Executive Council and pronounce judgment concerning the
points at issue and give such orders as the Raad may deem
fit.
8. The State President shall fix the time and place for the
sessions of the Circuit Court. . . .
9. When on account of sickness or other unavoidable
occurrences, or by reason of personal interest or family re-
lationship, in any civil case before the Circuit Court, one or
more of the Landdrosts shall be prevented from sitting, the
Court shall, at the request of the parties, be able to refer
the case to another place, or shall appoint one or more Heem-
raden, Justices of the Peace or Attorneys, to take session with
at least one of the Landdrosts, in the place of the absent or
incompetent Landdrost.
10. In criminal cases the Landdrost of the district where
the case comes up, or a Landdrost appointed for the purpose
by the Court, shall preside. . . .
11. Sentence shall be pronounced by the Court by majority
of votes.
12. No judgment by which the sentence of death is pro-
nounced, shall be carried out except on receipt of the fiat of the
State President. . . .
13. In transmitting the papers the Landdrosts shall send
a … report to the President. . . .
3io ORANGE FREE STATE [1856
14. Een Landdrost kan civiel en crimineel geprosequeerd worden,
en mag zelve prosequeren voor de Lagere Hoven, mits in het Hof,
waar Hij zelve Voorzitter is, een ander tot dien einde door den President
worde aangesteld.
MENGELONDERWERPEN.
En wordt verder vastgesteld :
1. Dat het Romeinsch Hollandsch Regt als de Grondwet van dezen
Staat aangenomen is, zal moeten worden verstaan te bedoelen, in
zooverre als hetzelve in de Kaapkolonie in werking werd gevonden,
tijdens de aanstelling van Englsche regters (judges) in de plaats van
den voorheen bestaanden Raad van Justitie, en niet in te sluiten eenige
nieuwe wetten en inrigtingen, plaatselijk of algemeen, die in Holland
mogten zijn ingevoerd geworden, en niet gegrond zijn op, of tegen-
strijdig met het Oud Romeinsch Hollandsch Regt : zooals in de tekst-
boeken verklaard van Voet, Van Leeuwen, Grotius, de Papegaaij,
Merila, Lijbrecht, Van der Linden, Van der Reese, en authoriteiten
door hen aangehaald.
2. [Tegenstrijdige raadsbesluiten herroepen.]
3. Deze Ordonnantie zal in werking komen en kracht van wet
hebben, van af den 1 5 den dag van April eerstkomende.
Gegeven te Bloemfontein, den 12 den dag van Februarij 1856.
J. N. BOSHOF, Staatspresident.
(Bij order) J. W. SPRUIJT, Fung. Gouv. Seer.
Verz. van Besl. v. d. O.V.S. [1867 ?].
14. Any Landdrost can be prosecuted civilly or criminally
and may himself prosecute before the Lower Courts, provided
that in the Court where he himself is chairman, another shall
be appointed to that dignity by the President.
MISCELLANEOUS SUBJECTS.
And be it further laid down :
1. That the Roman-Dutch Law is adopted as the chief law
of this State, shall be taken to mean, in so far as the same was
found in operation in the Cape Colony at the time of the appoint-
ment of English judges in the place of the previously existing
Court of Justice, and not to include any new laws or institu-
tions, whether local or general, which may have been intro-
duced in Holland and which are not based on, or are in conflict
with the old Roman-Dutch Law as explained in the text-books
of Voet, Van Leeuwen, Grotius, de Papegaaij, Merila, Lijbrecht,
Van der Linden, Van der Reese, and the authorities quoted
by them.
2. [Conflicting resolutions of the Raad are repealed.]
3. This Ordinance shall come into operation and have
force of law from the I5th day of April next.
1856] MUNICIPALITIES 311
No. 163. ORDONNANTIE. 1 [15 Feb. 1856.]
No. 8, 1856.
Voor de oprigting van Municipale Collegien in de steden en dorpen
van den Oranjevrijstaat, vastgesteld en bepaald door den HEd.
Volksraad van den Oranjevrijstaat, in deszelfs vergadering.
gehouden te Bloemfontein, op den 15 den dag van Februarij
[De Kaapsche Municipale Ordonnantie werd zeer nauw gevolgd,
maar de kwalificaties van stemgerechtigden en leden werden aangegeven
als volgt :]
12. Niemand zal als Commissaris van de Municipaliteit mogen
gekozen worden, tenzij hij bezitter is van vast eigendom, tot de waarde
van niet minder dan ^200, binnen gemelde Municipaliteit gelegen, en
zelf binnen de Municipaliteit woont.
* * *
42. leder manspersoon die bewoner is van eenig huis, winkel, of
kantoor, hetzij als eigenaar of huurder, van eene jaarlijksche waarde
van 5 * of daarboven, zal beschouwd worden een residerende huis-
houder te zijn, naar de meening van deze Ordonnantie, en zal bij elke
bijeenkomst, als hij persoonlijk tegenwoordig is, een stem hebben, en
niet meer, en in geval van eenige kwestie over het regt van stemmen bij
eenige publieke bijeenkomst, zal de Voorzitter daarin beslissen.
Verz. van Besl v. d. O.V.S. [1867 ?].
No. 163. ORDINANCE. 1 [15 Feb. 1856.]
No. 8, 1856.
For erecting Municipal Boards in the cities and towns of the
Orange Free State, affirmed and laid down by the Volks-
raad of the Orange Free State in its meeting held at
Bloemfontein on the i5th day of February 1856.
[The Cape Municipal Ordinance was very closely followed,
but the qualifications of electors and Commissioners were given
as follows :]
12. No person shall be eligible for election as a Commis-
sioner of any Municipality, unless he be a possessor of fixed
property to the value of not less than 200, within the said
Municipality, and resides within the Municipality.
* * *
42. Every male person who occupies any house, shop or office,
whether as owner or tenant, of a yearly value of 5 2 or more,
shall be considered to be a resident householder, within the
meaning of this Ordinance, and shall, at each meeting, if he is
present in person, have one vote, and no more, and in case of
any dispute over the right of voting at any public meeting,
the Chairman shall decide.
1 This ordinance appears in a modified form in the 1892 compilation of
laws. Its provisions were repealed by Ord. No. 6 of 1904, ” The Municipal
Corporations Ordinance.” It should be compared with No. 55 and No. 132.
‘ Subsequently changed to ^40.
312 ORANGE FREE STATE [1857
No. 164. ORDONNANTIE. [13 Feb. 1857.]
No. 2, 1857.
Regulerende de kwalificatie en pligten van Jurymannen.
NADEMAAL het door Artikel No. 50 van de Constitutie, 1 en Artikel
No. 2 * afdeeling ” Belangende de regterlijke magt ” van Ordonnantie
No. i, 1856, is bepaald, dat in de teregtstelling van crimineele zaken
voor het Rondgaande Geregtshof van vereenigde Landdrosten, er eene
Jury of Raad van gezworene mannen wezen zal, en er geene genoeg-
zame wetsbepalingen zijn gemaakt omtrent de wijze of manier van
procederen of behan deling van zoodanige crimineele zaken, en voor-
namelijk met betrekking tot de kwalificatie, pligten en regten van Jury-
mannen, zoo is het, dat de Raad bij dezen vastgesteld heeft, als volgt :
1. Dat, uitgezonderd de bepalingen in Artikel 2 en 3, hieronder
volgende, ieder persoon boven den ouderdom van een en twintig, en
onder den ouderdom van zestig jaren, en de wettige eigenaar zijnde
van vaste eigendommen in het district alwaar hij zich met der woon
bevindt, van de onbelaste waarde van Een Honderd Pond Sterling, of
de huurder zijnde van eenig vast eigendom in het district voormeld
gelegen, van eene jaarlijksche huur of waarde van twintig ponden
sterling, en zijnde lidmaat van eenige erkende Christelijke kerk, ge-
kwalificeerd en verpligt zijn zal als een juryman te dienen binnen de
limieten van zoodanig district.
2. Dat de volgende personen verschoond zullen zijn van de
jurydienst, namentlijk :
No. 164. ORDINANCE. [13 Feb. 1857.]
No. 2, 1857.
Regulating the qualifications and duties of Jurors.
WHEREAS it has been laid down by Article No. 50 of the
Constitution l and Article No. 2 2 of the subdivision, entitled
” Regarding the judicial power ” of Ordinance No. i, 1856,
that in the trial of criminal cases before the Circuit Court of
united Landdrosts, there shall be a Jury or Council of Jurors ;
and whereas no sufficient legal provisions have been made
regarding the manner or form of procedure, or the treatment
of such criminal cases, and especially with respect to the
qualification, duties and privileges of Jurymen ; therefore
the Raad has hereby enacted as follows :
1. That, except as provided below in Articles 2 and 3,
every person above the age of twenty-one and below the age
of sixty years, being the lawful owner of immovable property
in the district where he resides of the unencumbered value of
One Hundred Pounds Sterling, or the hirer of any immovable
property situate in the said district of the yearly rent or value
of Twenty Pounds Sterling, and being a member of any
recognised Christian church, shall be qualified and required
to act as juror within the limits of such district.
2. That the following persons shall be exempt from serving
as jurors, viz. :
1 i.e. the Constitution of 1854. Cf. No. 79.
3 This should be Art. 3. See p. 307.
i857] JURIES 313
A. De leden van den HEd. Volksraad, de leden van den Uitvoe-
renden Raad, en de Heemraden.
B. Alle personen in de civiele dienst van dezen Staat, insluitende
de veldcommandanten en veldcornetten.
C. Alle geregts beambten, alsmede alle advocaten en procureurs
van de rondgaande geregtshoven ; en alle cipiers en bewaarders van
gevangenhuizen.
D. Alle doctors, chirurgijns, en apothekers, die in praktijk zijn ;
en alle predikanten of leeraars van eenig godsdienstig genootschap.
3. Geen persoon, die na eene behoorlijke teregtstelling schuldig
gevonden en gevonnisd zal zijn, tot net ondergaan van eenige straffe,
waarmede eerloosheid gepaard is ; of die door het vonnis van eenig
competent geregtshof eerloos verklaard zal zijn, en welk vonnis niet
zal zijn veranderd of vernietigd of een pardon verleend geworden, zal
immer weder bevoegd zijn op eene teregtstelling als een jury te dienen.
[Zoo ook niet alle personen die zich aan omkooperij of onbehoor-
lijke beinvloeding hebben schuldig gemaakt.]
4. [Eenig juryman die schuldig is aan eenige der misdrijven in het
laatste artikel voorschreven, zal onderworpen zijn aan zulke straffe
als hem door het Geregtshof zal opgelegd worden.]
5. [Strafbepaling voor eenig persoon die een juryman omkoopt of
tracht om te koopen.]
6. Aangaande het opmaken der jurylijsten, het dagvaarden van
jurymannen, en andere punten van praktijk, enz. zal worden gehandeld
A. The members of the Volksraad, the members of the
Executive Council, and the Heemraden.
B. All persons in the civil service of this State, including
the Field-Commandants and the Field-Cornets.
C. All officers of justice, as also all advocates and attorneys
of the circuit courts, and all jailers and warders of prison-
houses.
D. All doctors, surgeons, and apothecaries in practice, and
all ministers or pastors of any religious body.
3. No person, who after due trial shall have been found
guilty and sentenced to undergo any punishment involving
loss of honour ; or who by the sentence of any competent
court shall have been declared infamous, which sentence shall
not have been changed or nullified, or a pardon not having been
granted, shall ever again be competent to serve as a juror in any
trial. [Nor any person who has been guilty of bribery, or has
been unduly influenced in any other way.]
4. [Any juryman who is guilty of any of the offences de-
scribed in the last preceding article, shall be subject to such
punishment as the Court may impose upon him.]
5. [Punishment prescribed for any person who bribes or
attempts to bribe any juryman.]
6. Regarding the making up of jury lists, the summoning
of jurymen, and other points of practice, etc., the procedure
314 ORANGE FREE STATE [1866
volgens de regulatien die daaromtrent door de bevoegde authoriteiten
reeds zijn of nog zullen worden vastgesteld.
7. Deze Ordonnantie zal in werking komen en kracht van wet
hebben van af den datum der publicatie.
Gegeven te Bloemfontein op den 13 den dag van Februarij 1857.
J. N. BOSHOF, Staatspresident.
(Bij order) J. W. SPRUIJT, Gouv. Seer.
GOUVERNEMENTSKANTOOR,
BLOEMFONTEIN, 31 Maart 1857.
Verz. van Besl. v. d. O.V.S. [1867 ?].
No. 165. DE OCCUPATIEWET.
ORD. No. 2, I866. 1
De Volksraad,
Overwegende, dat het raadzaam is zonder verzuim voorloopige
en tijdelijke voorzieningen te maken met betrekking tot het op de
Basutos veroverde grondgebied, hetwelk aan den Oranjevrijstaat is
gehecht bij proclamatie van den Kommandantgeneraal J. J. J. Pick,
welke proclamatie door ZHEd. den Staatspresident met advies en
consent van den Uitvoerenden Raad op 23 October 1865, en door den
Volksraad op 7 Februarij 1866, is bekrachtigd,
Heeft besloten, gelijk hij besluit bij dozen :
ART. i. Er worden langs de geheele nieuwe grensscheiding tus-
schen den Oranjevrijstaat en Basutoland, behoudens het bepaalde bij
art. 8 en 9, voorloopig drie rijen plaatsen gei’nspecteerd.
shall be according to the regulations already made or still to
be made by the competent authorities.
7. This Ordinance shall come into operation and have
force of law from the date of publication thereof.
No. 165. THE OCCUPATION LAW.
ORD. No. 2, I866. 1
The Volksraad,
Considering that it is advisable to make provisional and
temporary arrangements without delay with regard to the
territory conquered from the Basutos, which was joined to
the Orange Free State by a proclamation of the Commandant
General J. J. J. Fick, which proclamation was confirmed by
the State President with the advice and consent of the Executive
Council on 23rd October 1865, and by the Volksraad on jih
February 1866,
Has resolved, as it hereby resolves :
ART. i. There shall be inspected provisionally three rows
of farms along the whole of the new boundary between the
Orange Free State and Basutoland, saving always the pro-
visions laid down in arts. 8 and 9.
1 Finally repealed by Procl. No. 3 of 1902 (A).
1866] CONQUERED TERRITORY 315
ART. 2. De in art. i bedoelde plaatsen worden geinspecteerd op eene
gemiddelde grootte van 1 500 morgen.
ART. 3. A an die plaatsen, voor zoo ver zij grenzen aan de Oranje-
rivier, de Kornetspruit, de Caledonrivier of de Putisani, wordt langs
deze rivieren geene meerdere breedte gegeven dan voor hare bestaan-
baarheid noodig is.
ART. 4. Tot de inspectie dier plaatsen worden door den Staats-
president twee commissies benoemd, waarvan de eene hare werkzaam-
heden aanvagt aan Bamboesplaats en de andere aan het andere einde
der nieuwe grensscheiding.
ART. 5. Elke commissie bestaat uit drie ledem, onder welke een
Gouvernements-landmeter is, die tevens voorzitter is der commissie,
bij welke hij wordt benoemd.
ART. 6. [Belooning van voorzitters en leden der commissies.]
ART. 7. De Staatspresident verleent aan elke commissie zoodanige
bescherming, als noodig geoordeeld wordt om haar in staat te stellen
hare werkzaamheden ongestoord te verrigten.
ART. 8. Tusschen Bamboesplaats, de Oranjerivier en de Kornet-
spruit, alsmede aan of nabij de bron der Putisani, wordt door de in art. 4
vermelde commissies een stuk grond geinspecteerd tot woonplaatsen
voor kleurlingen, die bondgenooten van den Oranjevrij staat zijn of
zich onder het gezag van den Oranjevrij staat verlangen te stellen.
ART. 2. The farms mentioned in art. i shall be inspected
so as to be of an average size of 1500 morgen.
ART. 3. To those farms, in as far as they border on the
Orange River, the Cornetspruit, the Caledon River or the
Putisani, no greater breadth shall be allowed along these
rivers than is necessary for the purposes of the said farms.
ART. 4. For inspecting those farms two commissioners shall
be appointed by the State President, of which the one shall
commence its duties at Bamboesplaats and the other at the
other end of the new boimdary.
ART. 5. Every commission shall consist of three members,
of whom a Government land-surveyor shall be one, and he
shall be chairman of the commission to which he shall be
appointed.
ART. 6. [Payment of the chairman and members of each
commission.]
ART. 7. The State President extends to each commission
such protection as is deemed necessary, in order to enable it
to perform its duties undisturbed.
ART. 8. Between Bamboesplaats, the Orange River and
the Cornetspruit, as also at or near the source of the Putisani,
there shall be inspected by the commission mentioned in art. 4
a piece of land as the dwelling-place of the coloured people who
are allies of the Orange Free State, or who desire to place them-
selves under the authority of the Orange Free State,
316 ORANGE FREE STATE [1866
ART. 9. [De commissies zonderen stukken grond af voor het aan-
leggen van dorpen.]
ART. 10. [De Commissies richten bakens op tot aanwijzing der
scheidslijnen.]
ART. ii. [De voorzitter van elke commissie maakt schetsen en
inspectie-rapporten.]
ART. 12. De voorzitter van elke commissie zendt de door hem
gemaakte schetsen en inspectie-rapporten zoo spoedig mogelijk in aan
den Gouvernementssecretaris, die daarbij op de gewone wijze grond-
brieven doet uitvaardigen.
ART. 13. De in art i. bedoelde plaatsen worden om niet uitgegeven
onder de hierna te vermelden voorwaarden.
ART. 14-20. [Aan wien plaatsen toegekend zullen worden en de
wijze van toekenning.]
ART. 2 1 . Elke plaats moet door dengene, aan wien dezelve toegekend
wordt, in persoon worden bewoond.
ART. 22. De bewoning vangt aan op eenen door den Staatspresident
te bepalen dag, welke tijdig en zoo algemeen mogelijk wordt bekend
gemaakt.
ART. 23. Hij, die verhinderd wordt om op den door den Staats-
president bepaalden dag met de bewoning eenen aanvang te maken,
moet van dezen verlof verkrijgen om zulks later te doen.
ART. 24. leder, aan wien eene plaats wordt toegekend, moet daarop
te alien tijde voorzien zijn van een rijpaard, zadel, toom, geweer, 200
kogels, 5 pond kruid en 500 dopjes of 12 vuursteenen.
ART. 9. [The commissions shall reserve tracts of land for
laying out towns.]
ART. 10. [The commissions shall erect beacons to indicate
the boundaries.]
ART. ii. [The chairman of each commission shall make
maps and frame inspection reports.]
ART. 12. The chairman of each commission shall send the
maps and the inspection-reports drawn up by him as soon as
possible to the Government Secretary, who shall therefrom
cause land deeds to be issued in the usual manner.
ART. 13. The farms mentioned in art. i shall be issued
gratis on the conditions to be mentioned hereafter.
ART. 14-20. [To whom farms shall be granted and the
manner of granting.]
ART. 21. Every farm must be occupied by the individual
in person to whom the same is granted.
ART. 22. The occupation shall begin on a day to be fixed
by the State President, which day shall be notified in time
and as publicly as possible.
ART. 23. Any person who is prevented from beginning
to occupy his farm on the day fixed by the State President
must receive his permission to do so at a later date.
ART. 24. Every person to whom a farm is granted shall
be provided on it at all times with a riding-horse, a saddle,
bridle, rifle, 200 bullets, 5 pounds of gunpowder, and 500 caps
or 12 flints.
iS66] CONQUERED TERRITORY 317
ART. 25. ledere eigenaar van eene plaats moet te alien tijde,
voorzien van de toerusting, in art. 24 vermeld, gereed zijn om zoodanige
burger en kommandodienst te doen, als zijn veldkornet van hem
vordert, of daartoe eenen aldus toegerusten bekwamen en door den
veldkornet goedgekeurden blanken persoon als zijnen plaats vervanger
stellen.
ART. 26. Op dezelfde wijze is iedere eigenaar gehouden mede te
werken aan de oprigting der in art. 42 vermelde forten.
ART. 27. ledere eigenaar moet binnen zes maanden na den aanvang
van de bewoning zijner plaats daarop een huis bouwen en voltooijen
van minstens 20 voet lang en 10 voet breed.
ART. 28. ledere eigenaar betaalt jaarlijks eene recognitie van 2 s.
voor elke 100 morgen of eenig gedeelte daarvan.
ART. 29. [ledere eigenaar betaalt 4 voor zijn grondbrief.]
ART. 30-31. [Over het transporteren der plaatsen.]
ART. 32-33. [Bij het niet nakomen van deze voorwaarden kan de
Uitvoerende Raad de eigenaar zijn regt van eigendom ontnemen, doch
eerst na hem over de zaak gehoord te hebben.]
ART. 34. [Zulk een plaats wordt dan opnieuw uitgegeven.]
ART. 35. [Omtrent betaling voor aangebragte verbeteringen op zulk
een plaats.]
ART. 36. De eigenaren van gemiddeld elke 30 aan elkander gren-
zende plaatsen, door den Staatspresident aan te wijzen, kiezen op eenen
door hem te bepalen dag uit hun midden eenen veldcornet.
ART. 25. Every owner of a farm shall at all times, provided
with the equipment mentioned in art. 24, be ready to render
such burgher and commando service as his Field-cornet
may demand of him ; or he shall give as his substitute for
that purpose an able white person equipped as mentioned above
and approved of by the Field-cornet.
ART. 26. In the same way every owner shall be obliged
to co-operate in erecting the forts mentioned in art. 42.
ART. 27. Every owner shall, within six months after he
commences to occupy his farm, build or complete thereon a
house of at least 20 feet long and 10 feet broad.
ART. 28. Every owner shall pay annually an acknowledg-
ment of 2 sh. for every 100 morgen or any part thereof.
ART. 29. [Every owner shall pay 4 for his land deed.]
ART. 30-31. [About the transfer of farms.]
ART. 32-33. [When these conditions are not fulfilled, the
Executive Council may take away the owner’s right to the
property, but only after having heard him on the matter.]
ART. 34. [Such farm shall then be given out anew.]
ART. 35. [About payment for improvements made on such
farm.]
ART. 36. The owners on an average of every 30 farms
adjoining each other, as shall be indicated by the State Presi-
dent, shall elect, on a day to be fixed by him, a Field-cornet
from their midst.
318 ORANGE FREE STATE [1866
ART/ 37. Op gelijke wijze kiezen de eigenaren der plaatsen, in 3
aan elkander grenzende veldkornetschappen gelegen eenen komman-
dant.
ART. 38. De gezamenlijke kommandanten en veldkornetten kiezen
uit de eigenaren der in art. i vermelde plaatsen eenen kommandant-
generaal, die zijne instructies van den Staatspresident ontvangt.
ART. 39. ledere officier is stipte gehoorzaamheid verschuldigd aan
degenen, die boven hem geplaatst zijn.
ART. 40. De kommandant-generaal en onder hem de kommandanten
en veldkornetten zijn belast met de zorg voor de bescherming en veilig-
heid der grenslijn en der grensbewoners en geven de daartoe noodige
bevelen.
ART. 41. De veldkornetten zijn gehouden elke maand eenmaal de
eigenaren der plaatsen in hunne veldkornetschappen te inspecteren en
zich te overtuigen, dat zij voorzien zijn van de uitrusting in art. 24
vermeld.
ART. 42. In elk veldkornetschap wordt door den kommandant
in overleg met den veldkornet eene plek aangewezen, waar een fort
wordt gebouwd, ten einde in tijden van gevaar te dienen tot beveiliging
van leven en eigendom der grensbewoners.
ART. 43. De Uitvoerende Raad bepaalt, welke kleurlingen toegelaten
worden hunne woonplaats te vestigen in de gronden, vermeld in art. 8.
ART. 44. De Uitvoerende Raad bepaalt, onder welke hoofden de in
art. 43 vermelde kleurlingen geplaatst worden.
ART. 37. In a similar manner the owners of farms situated
in three adjoining field-cornetcies shall elect a Commandant.
ART. 38. The Commandants and Field-cornets shall together
elect, from amongst the owners of the farms mentioned in
art. i, a Commandant-General, who shall receive his instruc-
tions from the State President.
ART. 39. Every officer owes strict obedience to those
placed above him.
ART. 40. The Commandant-General, and under him the
Commandants and Field-cornets, are entrusted with the task
of protecting and safeguarding the frontier and the people
living on the frontier, and shall issue the commands necessary
thereto.
ART. 41. The Field-cornets shall be obliged to inspect
the owners of the farms in their field-cornetcies once every
month, and to satisfy themselves that they are provided with
the equipment mentioned in art. 24.
ART. 42. In every field-cornetcy a place shall be pointed
out by the Commandant, advised by the Field-cornet, where
a fort shall be built, to serve in times of danger as a protection
of the lives and property of the inhabitants of the frontier.
ART. 43. The Executive Council shall decide which coloured
persons shall be permitted to take up their abode on the lands
mentioned in art. 8.
ART. 44. The Executive Council shall decide under which
captains the coloured persons mentioned in art. 43 shall be
placed.
1866] ^CONQUERED TERRITORY 319
ART. 45. Over al de kleurlingen in elk der in art. 8 vermelde stukken
grond wordt door den Staatspresident een blanke persoon tot komman-
dant benoemd.
ART. 46. De kommandanten over de kleurlingen genieten een jaar-
lijksch inkomen, waarvan bet bedrag door den Uitvoerenden Raad
vastgesteld en uit eene op de kleurlingen te leggen jaarlijksche belasting
gevonden wordt.
ART. 47. De hoegrootheid dier belasting wordt door den Uitvoeren-
den Raad bepaald.
ART. 48. De kleurlingen zijn aan de bevelen van den over hen
gestelden kommandant stipte gehoorzaamheid verschuldigd.
ART. 49. De kleurlingen moeten te alien tijde gereed zijn om bij
oproeping van hunne hoofden of van hunnen kommandant de grenzen
tegen invallen of andere vijandelijke handelingen te verdedigen.
ART. 50. De Uitvoerende Raad heeft de magt kleurlingen, die niet
voldoen aan de bij deze wet op hen gelegde verpligtingen, uit de in
art. 8 vermelde stukken grond te doen verwijderen of te doen verdrij ven.
ART. 51. De Uitvoerende Raad bepaalt, onder de jurisdictie der
geregtshoven van welke districten de bewoners der in art. i en 8 ver-
melde plaatsen en gronden voorloopig beschouwd worden te behooren.
ART. 52. De bepalingen der algemeene wetten betreffende de ad-
ministratie zijn op de bewoners der in art. i en 8 vermelde plaatsen en
gronden niet toepasselijk, dan voor zoo ver de Uitvoerende Raad het
noodig oordeelt dezelve op hen toepasselijk te verklaren.
ART. 45. Over all the coloured people in each of the pieces
of country mentioned in art. 8 a white man shall be appointed
as Commandant by the State President.
ART. 46. The Commandants placed over the coloured
people shall receive an annual income, the amount of which
shall be fixed by the Executive Council, and shall be paid from
annual taxes to be levied on the coloured people.
ART. 47. The amount of such taxes shall be fixed by the
Executive Council.
ART. 48. The coloured people owe strict obedience to the
commands of the Commandant placed over them.
ART. 49. The coloured people shall be ready at all times,
if they are called upon by their chiefs or by their Commandant,
to defend the frontiers against invasion or other hostile action.
ART. 50. The Executive Council shall have the power to
cause to be removed or expelled from the pieces of country
mentioned in art. 8 any coloured persons who do not fulfil
the obligations laid upon them by this law.
ART. 51. The Executive Council shall declare under which
district courts of justice the occupants of the farms and lands
mentioned in arts, i and 8 shall be considered to fall for the
present.
ART. 52. The provisions of the general laws regarding
the administration are not applicable to the occupants of
the farms and lands mentioned in arts, i and 8, except in so
far as the Executive Council shall deem it necessary to declare
the same to be applicable.
320 ORANGE FREE STATE [1866
ART. 53. De Uitvoerende Raad is belast met het vaststellen der
instructies en het maken der Regulaties, welke noodig zijn tot de
behoorlijke uitvoering van deze wet.
ART. 54. Deze wet wordt in de Gouvernements Courant afgekondigd
en treedt acht dagen na die afkondiging in werking.
H. O. DREYER, Voorzitter van den Volksraad.
H. Si j BOUTS, Secretaris.
Verz. van Besl. v. d. O.V.S. [1867 ?J.
No. 166. ORDONNANTIE. [23Meii866.]
No. 3, 1866.
Bepalende volgens welke wetten en op welke wijze Molappo l en zijn
volk als onderdanen van den Oranjevrijstaat voortaan zullen
bestuurd worden.
ART. i. Kapitein Molappo met zijn volk met inbegrip der onder-
hoorige Kapiteins, als genoemd bij art. 4 van het Vredestractaat, gesloten
op 26 Maart 1866, zijn onderdanen van den Oranjevrijstaat.
ART. 2. De ambtenaar, welke onder het volk van Molappo in dat
gedeelte der veroverde gronden, in art. 7 vermeld, zal worden geplaatst,
zal den titel van Kommandant dragen en met de magt van Landdrost
bekleed zijn, uitgezonderd waar ten aanzien van die magt bijzondere
voorzieningen worden gemaakt.
ART. 3. De crimineele wetten van den Oranjevrijstaat zullen op hen
ART. 53. The Executive Council is charged to draw up
instructions and frame regulations which may be necessary
for the proper carrying into effect of this law.
ART. 54. This law shall be published in the Government
Gazette, and shall take effect eight days after such publication.
No. 166. ORDINANCE. [23 May 1866.]
No. 3, 1866.
To regulate according to which laws and in what manner
Molappo 1 and his people shall henceforth be governed as
subjects of the Orange Free State.
ART. i. Captain Molappo and his people, including the
subordinate Captains, as mentioned in art. 4 of the Treaty of
Peace, concluded on 26th March 1866, are subjects of the
Orange Free State.
ART. 2. The official to be placed among the people of
Molappo in the part of the conquered territories mentioned
in art. 7, shall bear the title of Commandant and shall be
invested with the authority of a Landdrost, except where, with
regard to that authority, special provisions are made.
ART. 3. The criminal laws of the Orange Free State shall
1 The second son of Moshesh. In 1866, in the course of a war between his
father and the Free State, he offered to surrender cattle and to become a Free
State subject. In 1869 his reserve became British territory. See art. 6, p. 337.
i866] NATIVE RESERVES 321
van toepassing zijn, voor zoo ver de strafbepalingen daarin zijn opge-
geven en overeenkomstig het gebruik kunnen worden ten uitvoer
gebragt. In misdaden, welke volgens de wetten van den Staat met den
dood strafbaar zijn, en ten aanzien van welke de toepassing dier straf
niet in onbruik is geraakt, wordt een voorloopig onderzoek gehouden en
aan den Staatsprocureur opgezonden, wanneer zijne instruction daarom-
trent zullen moeten worden opgevolgd. De Kapitein Molappo zal
echter verpligt zijn, om, wanneer door den Kommandant daartoe
bevolen, de beschuldigden en de getuigen voor de beschuldiging en
verdediging in eenige zaak, voor het Hof te doen verschijnen in plaats
van door dagvaardingen daartoe verpligt te worden.
ART. 4. Kwestien van civielen aard kunnen in de eerste instantie
voor Molappo en zijn Raad worden gebragt, die dan daaromtrent
beslissen zullen; partijen, die met hunne uitspraak ontevreden zijn,
zullen het regt hebben zich daarover bij den Kommandant te beklagen,
die alsdan de zaak op nieuw zal hooren, en dan als een Hof van billijk-
heid daarover zal beslissen, met dien verstande nogthans, dat Molappo
en Raad in geen geval lijfstraffelijke uitspraken van toepassing zullen
mogen maken.
ART. 5. Kapitein Molappo zal ter eeniger tijd verpligt zijn, wanneer
daartoe aangevraagd door het Gouvernement, zoo vele manschappen
te leveren als mogten worden vereischt, ten einde kommando-diensten of
anderzins te doen.
ART. 6. Geen ondergeschikte van Kapitein Molappo zal het
geoorloofd zijn, de gronden, aan hem ter woning toegekend, te mogen
be applicable to them in so far as the punishments are pre-
scribed therein and can be carried out in accordance with
general custom. In the case of crimes which according to the
laws of the State are punishable with death and with regard to
which the execution of such punishment has not fallen into
disuse, a preliminary examination shall be held and sent up
to the State Attorney, whose instructions in the matter shall be
complied with. Captain Molappo shall, however, be obliged,
when commanded by the Commandant, to cause the accused
persons and the witnesses for the prosecution and for the
defence in a case to appear before the Court, instead of making
it necessary to summon them.
ART. 4. Disputes of a civil nature may in the first instance
be brought before Molappo and his Council, who shall then
decide thereon ; parties who are not satisfied with their judg-
ment, shall have the right to make complaints thereon to the
Commandant, who shall then hear the case anew and shall
decide thereon as a Court of equity ; provided, however, that
Molappo and his Council shall not carry out sentences affecting
the persons of individuals.
ART. 5. Captain Molappo shall at any time be obliged, on
a request of the Government being made to him, to supply
so many men as may be needed to render commando or other
service.
ART. 6. No person subordinate to Captain Molappo shall
be allowed to leave the lands assigned to him to live on,
21
322 ORANGE FREE STATE [1866
verlaten, zonder voorzien te zijn van een gedrukte pas en door den
ambtenaar, aldaar geplaatst zijnde, te zijn onderteekend ; zullende
voor elke pas een sixpence moeten worden betaald, en de overtreder
dezer bepaling moge worden gestraft met niet meer dan 25 slagen
of gevangenisstraf met harden arbeid, niet te bovengaande drie
maanden.
ART. 7. Kapitein Molappo noch een zijner onderhoorige Kapiteins,
noch anderen van zijn volk, zal het geoorloofd zijn eenigen Raad of
vergadering van andere naburige stammen te mogen bijwonen, of
toelaten, dat bij eenige Raadsvergadering van hen vreemde Kapiteins
of anderen daarbij zullen mogen tegenwoordig zijn, zonder schriftelijk
verlof van den Kommandant of ZHEd. den Staatspresident, op verbeurte
eener boete van niet minder dan 5 en niet meer dan 10 beesten.
ART. 8. Ten einde Gouvernements onkosten te bestrijken, wordt
bepaald en vastgesteld, dat op iedere hut, die bewoond wordt, door den
eigenaar daarvan zal worden betaald 10 shillings per jaar, welke betaling
zal moeten geschieden binnen eene maand van af primo Januarij 1867.
Kapitein Molappo en de andere onderhoorige Kapiteinen zullen van
deze oplaag uitgesloten zijn, doch zij zullen alle mogelijke hulp en bij-
stand verleenen voor de invordering van de hutbelasting, verschuldigd
door hunne onderhoorigen, en indien zij in die hulp en bij stand nalatig
blijven, of de orders, nun door den Kommandant te dien aanzien
gegeven, niet opvolgen, zullen zij verantwoordelijk kunnen gemaakt
worden voor de voldoening van het niet betaalde gedeelte van
zoodanige belasting.
ART. 9. De Kommandant zal verpligt zijn een register te houden
without being provided with a printed pass signed by the
official stationed there, a sixpence being charged for every
pass ; and any one not complying with this provision may
be punished with not more than 25 lashes or imprisonment
with hard labour not exceeding three months.
ART. 7. It shall not be permitted to Molappo or any of his
subordinate Captains, or any others of his people, to attend
any Council or meeting of other neighbouring tribes ; nor shall
they allow strange Captains or others to be present at any of
their Council meetings, without the written permission of the
Commandant or the State President, on pain of forfeiting as a
fine a sum of not less than 5 and not more than 10 oxen.
ART. 8. In order to defray Government expenses, it is
affirmed and laid down, that on every hut occupied 10 shillings
per year shall be paid by the owner thereof, which payment
shall be made within one month from the ist of January 1867.
Captain Molappo and the other subordinate Captains shall be
exempt from this contribution, but they shall render all
possible help and assistance for the collection of the hut tax
owing by their subordinates, and if they are negligent in
rendering such help and assistance, or do not comply with the
commands given by the Commandant in that respect, they
shall be liable to be held responsible for the payment of such
portion of the said tax as may remain unpaid.
ART. 9. The Commandant shall be obliged to keep a
1866] NATIVE RESERVES 323
van alle manspersonen, wonende in die gronden, alsmede van het getal
der bewoonde hutten, en onder welke Kapiteins dezelve geplaatst zijn.
ART. 10. Geen blanke personen zullen zonder verlof van den Pre-
sident en Uitvoerenden Raad zich binnen de gronden, aan Molappo
ter woning afgestaan, mogen vestigen, zullende zij na verkregen verlof
dezulken, welke aldaar handel mogten willen drijven, eene behoorlijke
licentie moeten betalen, gelijk staande met de bestaande wetten van net
Land. Echter zullen geene dranklicentien kunnen worden uitgegeven.
ART. 1 1 . Molappo noch eenige der onderhoorige Kapiteins of onder-
danen, zal het veroorloofd zijn, om eenige kleurling of blanke persoon,
van buiten inkomende, aan te nemen, of meer dan 24 uren te herbergen
zonder verlof van den Kommandant, en zij zullen gehouden zijn kennis
te geven aan den Kommandant van de aankomst van eenigen vreemde-
ling, binnen den bepaalden tijd van 24 uren, onder verbeurte bij
nalatigheid van niet minder dan 2 en niet meer dan 10 beesten.
ART. 12. De Kommandant zal een dagboek houden van gelden door
hem ontvangen en uitbetaald.
ART. 13. De Kommandant zal een Notulenboek houden van zaken,
die voor hem zullen worden gebragt, met aanteekening zijner uitspraken.
ART. 14. De Kommandant zal verpligt zijn maandelijks aan ZHEd.
den Staatspresident een schriftelijk rapport in te zenden van den
toestand van zaken binnen zijne jurisdictie.
ART. 15. Molappo zal verpligt zijn, om alle gevraagde assistentie
register of all male persons residing on those lands, as also of
the number of huts occupied, specifying under which of the
Captains the same are placed.
ART. 10. No white persons shall, without the permission
of the President and the Executive Council, settle within the
territory given to Molappo to reside in ; and those who may
wish to carry on trade there, shall, after having received per-
mission, pay for a proper license, a sum equal to that which
is prescribed by the existing laws. No liquor licenses shall,
however, be issued.
ART. ii. It shall not be permitted to Molappo or any of the
subordinate Captains or subjects, to take in or accommodate
for more than 24 hours any coloured or white person coming
from elsewhere, without the permission of the Commandant,
and they shall be obliged to give notice to the Commandant
of the arrival of any stranger within the defined period of
24 hours, on pain of forfeiting, in case of negligence, not
less than 2 or more than 10 oxen.
ART. 12. The Commandant shall keep a daily list of moneys
received and paid out by him.
ART. 13. The Commandant shall keep a minute-book of
cases which may be brought before him, showing the judg-
ments pronounced by him.
ART. 14. It shall be the duty of the Commandant to send
in once a month in writing a report to the State President on
the state of affairs within the limits of his jurisdiction.
ART. 15. Molappo shall be obliged to render any assistance
324 ORANGE FREE STATE [1866
aan den Kommandant te verleenen tot het bewaren van rust en vrede
binnen het grondgebied.
ART. 1 6. De Kommandant zal het regt hebben, om kleurling-
kinderen, binnen de gronden behoorende, in te boeken tothunne mondige
jaren aan burgers van den staat wanneer daartoe door de ouders of
naaste familie betrekkingen bij hem aanzoek wordt gedaan. Voor
zulke inboeking zal door de parti j en ten wiens voordeel dit geschiedt
10 schillings per hoofd voor Leges moeten worden betaald.
Van welke inboeking een behoorlijk register zal moeten worden
gehouden en in elk geval eene copij aan den Landdrost van het district
alwaar de dienstheer woonachtig is zal moeten worden opgezonden.
ART. 17. Aan de Nederduitsche Gereformeerde kerk alhier gevestigd
zal het geoorloofd zijn eenen zendeling tot dat kerkgenootschap
behoorende onder het volk van Molappo te plaatsen, zullende hetzelve
echter verpligt zijn om alles wat tot het onderhoud van zulken leeraar
behoort te moeten bekostigen, en wanneer bij het Gouvernement
behoorlijk aanzoek tot dat einde zal worden gemaakt zal het Gouverne-
ment zich gehouden achten een goed stuk gronds tot het oprigten van
gebouwen en tuin zoowel als zaaigrond daartoe af te zonderen ten
gebruike van het reeds genoemde einde.
ART. 1 8. De President met ad vies van den Uitvoerenden Raad
zal het regt hebben van tijd tot tijd zulke regulatien te maken voor den
Kommandant als naar omstandigheden mogten noodig bevonden
worden.
required of him by the Commandant for preserving quiet and
peace within the territory.
ART. 16. The Commandant shall have the right to book-in
(apprentice) coloured children belonging to the territory,
till they shall become of age, with burghers of the State, when
their parents or nearest relatives may request him to do so.
For such booking-in a fee of 10 shillings per head shall be paid
by the parties for whose benefit it is done.
Of such booking-in a proper register shall be kept, and in
every case a copy shall be sent to the Landdrost of the district
where the master resides.
ART. 17. The Dutch Reformed Church established here
shall be permitted to send among the people of Molappo a
missionary belonging to that Church, which Church shall,
however, be obliged to finance everything pertaining to the
support of such minister ; and, if proper application be made to
the Government for such grant, the Government shall consider
itself authorised to reserve a good piece of land for erecting
buildings and making gardens as well as for sowing-lands, to
the purpose above-mentioned.
ART. 18. The President, with the advice of the Executive
Council, shall have the right to make, from time to time, such
regulations for the Commandant as may be found necessary
according to circumstances.
1867] NATIVE RESERVES 325
ART. 19. Deze ordonnantie zal kracht van wet hebben acht dagen
na de publicatie in de Gouvernements Courant.
Aldus vastgesteld in de zitting van den HEd. Volksraad op 23 Mei
1866.
De Voorzitter van den Volksraad,
G. J. Du TOIT.
De Secretaris,
H. SIJBOUTS.
Verz. van Besl. v. d. O.V.S. [1867 ?].
No. 167. DE WET OVER HEX VOLK VAN PAULUS MOPELI. 1
[1867.]
1. Kapitein Paulus Mopeli met zijn volk, met inbegrip der onder-
hoorige kapiteins, zijn onderdanen van den Oranjevrijstaat.
2. De ambtenaar, welke onder net volk van Paulus Mopeli in net
grondgebied van Witzieshoek, als aan dezen afgegeven, ter bewoning
door hem en zijn volk, wordt geplaatst, zal den titel van commandant
dragen en met de macht van landdrost bekleed zijn, uitgezonderd
waar ten aanzien van die macht bijzondere voorzieningen worden
gemaakt ; en hij zal verplicht zijn binnen dat grondgebied te wonen.
3-18. [De bepalingen voor Paulus Mopeli en zijn volk zijn precies
zooals die voor Molappo bij artt. 3 tot 18 van Ord. No. 3, 1866.]
O.V.S. Wefboek, 1854-91, p. 270.
ART. 19. This ordinance shall have the force of law eight
days after publication in the Government Gazette.
No. 167. THE LAW RELATING TO THE PEOPLE
OF PAULUS MOPELI. 1 [1867.]
1. Captain Paulus Mopeli and his people, including the
subordinate Captains, are subjects of the Orange Free State.
2. The official who is being placed among the people of
Paulus Mopeli in the territory of Witzieshoek, granted to the
said Paulus Mopeli to be occupied by him and his people,
shall bear the title of Commandant and shall be invested with
the authority of a Landdrost, except where, with respect to
that authority, special provisions are made ; and it shall be
his duty to reside within that territory.
3-18. [The provisions with regard to Paulus Mopeli and
his people are exactly like those made with regard to Molappo
in arts. 3 to 18 of Ord. No. 3, 1866.]
1 Mopeli was a brother of Moshesh. In 1866 he agreed to be taken over
with his clan as subjects of the Free State. Unlike Molappo, he remained true
to his promises, and received lands in the beautiful and fertile tract called
Witzieshoek.
326 ORANGE FREE STATE [1867
No. 168. DE WET BETREKKELIJK DE HOOGERE
GERECHTSHOVEN. l
AFDEELING I. SAMENSTELLING DER HOOGERE GERECHTSHOVEN.
1. De Hoogere Gerechtshoven van den Oranjevrijstaat zijn :
(A) Het Hoog Gerechtshof ,
(B) De Rondgaande Gerechtshoven ;
Blijvende de gerechtshoven onder die namen bestaande ten tijde van
net inwerkingtreden der bepalingen dezer wet voortbestaan, onderwor-
pen aan deze bepalingen.
2. Er zullen drie leden van het Hoog Gerechtshof zijn, te weten:
Een hoof drechter en twee andere rechters.
3. De leden der rechterli jke macht kunnen niet tevens de betrekking
van advokaat, procureur of notaris bekleeden, of eenig ander beroep
uitoefenen.
4-
5-
6.
Leden moeten niet verwant zijn zonder dispensatie.]
Kwalificaties van rechters.]
Aanstelling van eenen rechter om tijdelijk te ageeren.]
7. Rechters van het Hoog Gerechtshof bekleeden hunne betrekking
gedurende goed gedrag, kunnende zij enkel afgezet worden door den
Volksraad, na gedaan onderzoek, op aanklachte van het Uitvoerend
Gezag, doch de Staatspresident zal het recht hebben om eenen rechter
No. 168. THE LAW RELATING TO THE HIGHER
COURTS OF JUSTICE. 1
DIVISION I. CONSTITUTION OF THE HIGHER COURTS
OF JUSTICE.
1. The Higher Courts of Justice of the Orange Free State
are :
(A) The High Court of Justice ;
(B) The Circuit Courts ;
And the Courts existing under those names at the time of
the taking effect of the provisions of this law shall be continued,
subject to the following regulations :
2. There shall be three members of the High Court, viz. :
one chief justice and two other judges.
3. The members of the judicial authority can not at the
same time practise as advocates, attorneys or notaries, or
exercise any other profession.
4. [Members shall not be related to each other unless they
receive a special dispensation.]
5. [Qualifications of judges.]
6. [Appointment of a judge to act temporarily.]
7. Judges of the High Court of Justice shall retain their
offices during good behaviour, and they can be dismissed only
by the Volksraad, after examination, on being accused by the
Executive Power ; but the State President shall have the
1 Repealed by Procl. No. 3 of 1902 (A). The High Court and the Circuit
Court of judges were first set up by Ord. No. 2, 1876.
-1902] THE HIGHER COURTS 327
wegens wangedrag tijdelijk te suspendeeren, onderworpen aan de
beslissing van den Volksraad.
8. [Eed der rechters.]
9. [Samenstelling van het Hoog Gerechtshof : te bestaan uit al de
leden, behalve dat in geval van rivisie van de beslissing van een der
rechters, het Hof bestan kan uit de twee overige leden, en dat in geval
van afwezigheid enz. van een der rechters, de andere rechters een
volledig Hof kunnen uitmaken.]
10. Het Rondgaande Gerechtshof bestaat uit een lid der rechter-
lijke macht.
AFDEELING II. JURISDICTIE.
1 1 . Het Hoog Gerechtshof is gevestigd te Bloemf ontein, en deszelfs
jurisdictie strekt zich uit over den geheelen Staat.
12. Het Hoog Gerechtshof is, als opperste rechtbank belast met
het toezicht op de bedeeling van het recht in den geheelen staat, en met
de zorg dat die bedeeling behoorlijk en onvertogen volgens wet plaats
vinde.
13. Voor het Hoog Gerechtshof kunnen gebracht worden :
(A) [Alle applicaties voor arresten, injunctien, enz.]
(B) Alle civiele zaken hoegenaamd in de eerste instantie, waar de
verweerder in het district Bloemfontein woont of schrifte-
lijk zijne toestemming gegeven heeft dat de zaak voor het
Hoog Gerechtshof kan worden gebracht ; en totdat de
Volksraad daaromtrent andere bepalingen wenschelijk en
right to suspend any judge temporarily for bad behaviour,
subject to the decision of the Volksraad.
8. [Oath of judges.]
9. [Composition of the High Court : to consist of all the
members, except that in the case of a review of the judgment
of one of the judges the Court shall consist of the other two
members, and that in case of the absence, etc. of one of the
judges, the others shall constitute a full court.]
10. The Circuit Court shall consist of one member of the
judicial power.
DIVISION II. JURISDICTION.
11. The High Court is established at Bloemfontein, and its
jurisdiction shall extend over the whole State.
12. The High Court, being the supreme tribunal, is entrusted
with the supervision of the administration of justice in the
whole State, and with the care that that administration shall
be carried out properly, fairly, and according to law.
13. Before the High Court can be brought :
(A) [All applications for arrest, injunctions, etc.]
(B) All civil cases whatever in the first instance, in
which the defendant resides in the district of
Bloemfontein, or has given his consent in writing
to bring the case before the High Court ; and,
until the Volksraad shall deem other provisions
therefor desirable and necessary, all cases origin-
328 ORANGE FREE STATE [1867-
noodzakelijk zal vinden, alle zaken ontstaande in het
district Moroka die boven de jurisdictie van het hof van
den landdrost of van landdrost en heemraden zijn ;
(C) Alle illiquide zaken waar er twee of meer verweerders in
verschillende districten woonachtig zijn ; doch op aanzoek
daartoe zal het Hoog Gerechtshof de zaak kunnen ver-
wijzen naar het Rondgaand Gerechtshof betwelk, volgens
het oordeel van het Hof, het meest geschikt voor de
behandeling der zaak is ;
(D) Alle provisioneele zaken ; doch waar de verweerder woon-
achtig is in een district, niet zijnde het district van
Bloemfontein, zal het hof op aanzoek daartoe de zaak
kunnen 6f uitstellen 6f verwijzen naar het Rondgaand
Gerechtshof van het district waar de verweerder woont,
mits hij aantoont door beeedigde verklaringen dat hij
waarschijnlijk een goede defensie zal hebben ;
(E) Alle provisioneele zaken waar er twee of meer verweerders
in verschillende districten woonachtig zijn ; doch op
aanzoek daartoe zal het Hoog Gerechtshof de zaak
kunnen verwijzen naar het Rondgaand Gerechtshof,
hetwelk volgens het oordeel van het hof het meest geschikt
voor de behandeling der zaak is ;
(F) Zaken waarin eenig debiteur bij eene acte van schepen-
ating in the district of Moroka, which are beyond
the jurisdiction of the Landrost’s Court or the
Court of Landdrost and Heemraden.
(C) All illiquid cases in which there are two or more
defendants who reside in different districts ; but
on application being made the High Court shall
be empowered to refer any such case to such
Circuit Court as, in the opinion of the Court, is
best suited to deal with the case.
(D) All provisional cases ; but when the defendant
resides in any district, not being the district of
Bloemfontein, the Court shall, on application
being made, be empowered either to postpone
the case, or to refer it to the Circuit Court of
the district where the defendant resides, provided
that he shall have indicated, by means of a
deposition on oath, that he is likely to have a
good defence.
(E) All provisional cases in which two or more defendants
reside in different districts ; but, on application
being made, the High Court shall be empowered
to refer the case to such Circuit Court as, in the
opinion of the Court, is best suited to deal with
the case.
(F) Cases in which any debtor by a deed of mortgage
-1902] THE HIGHER COURTS 329
kennis of ander liquid document vastgoed gelegen in
verschillende districten zal hebben verbonden ;
(G) Alle rivisien en appellen in civiele zaken van de Rond-
gaande en de Lagere Gerechtshoven ;
(H) Alle rivisien in crimineele zaken in de eerste instantie of in
appel of revisie gediend hebbende vopr de Rondgaande
Gerechtshoven, en alle appellen en revisien in zaken in de
eerste instantie gediend hebbende voor de Lagere
Gerechtshoven ;
(I) Alle zaken of rechterlijke procedures welke verwezen mochten
worden naar het Hoog Gerechtshof door een Rondgaand
Gerechtshof of rechter in kamers.
14. [Order over proceskosten, enz., waar een geringe zaak voor dat
Hof wordt gebracht.]
15. [Applicaties in crimineele zaken.]
1 6. [Het Hof kan zekere zaken verwijzen van het eene district
naar het andere.]
17. [Uitgestrektheid van de jurisdictie van Rondgaande Gerechts-
hoven.]
1 8. Voor het Rondgaand Gerechtshof kunnen gebracht worden alle
civiele en crimineele zaken . . . hetzij in de eerste instantie of in
rivisie of appel van een lager gerechtshof, of van eenen commissaris van
het Hoog Gerechtshof. [Crimineele zaken komen voor een rechter en
een jury. Enz.]
19. [Verwijzing van crimineele zaken door het Rondgaand Gerechts-
hof naar een ander district.]
or other liquid document shall have bound fixed
property situated in various districts.
(G) All reviews and appeals in civil cases from the
Circuit Court and the Lower Courts.
(H) All reviews of criminal cases which have come, in
the first instance, or on appeal, or for review,
before the Circuit Courts, and all appeals and
reviews of cases which have come in the first
instance before the Lower Courts.
(I) All cases and all points of judicial procedure which
may be referred to the High Court by any Circuit
Court or by a judge in chambers.
14. [Order for costs, etc. when a case of slight importance
is brought before the High Court.]
15. [Applications in criminal cases.]
16. [The Court can refer certain cases from one district
to another.]
17. [Area in which Circuit Courts may exercise jurisdiction.]
18. Before the Circuit Court may be brought all civil and
criminal cases . . . whether in the first instance, or for re-
view, or on appeal from a lower Court or from a Commissioner
of the High Court. [Criminal cases shall be brought before a
judge and a jury, etc.]
19. [A Circuit Court may refer criminal cases to another
district.]
330 ORANGE FREE STATE [1867-
20. [Application voor het Hof .]
AFDEELING III. COMMISSARISSEN VAN HET HOOG GERECHTSHOF.
2 1 . [Commissarissen kunnen applicaties behandelen.]
22. [Appdltegen, en terzijdestelling van, orders van een commissaris.]
AFDEELING IV. ZITTINGEN.
23-27. [Tijd, plaats en aantal der zittingen, enz.]
AFDEELING V. OFFICIEREN EN HUNNE PLICHTEN.
28-47. [Plichten, enz. van registrateur, klerken, tolk, baljuw, enz.]
AFDEELING VI. SLOTBEPALINGEN.
48. [Regulaties, en hoe zij worden vervaardigd.]
O.V.S. Wetboek, 1854-91, p. 21.
No. 169. DE WET BETREKKELIJK DE LAGERE
GERECHTSHO VEN.
AFDEELING I. UITLEGGENDE BEPALINGEN.
i. Onder de lagere gerechtshoven worden voor de doeleinden
dezer wet begrepen :
(A) De hoven van den landdrost ;
(B) De hoven van den landdrost en heemraden ;
20. [Applications before the Court.]
DIVISION III. COMMISSIONERS OF THE HIGH COURT.
21. [Commissioners may deal with applications.]
22. [Appeals against an order of any Commissioner, and
setting aside the same.]
DIVISION IV. SESSIONS.
23-27. [The time, place and number of sessions, etc.]
DIVISION V. OFFICERS AND THEIR DUTIES.
28-47. [Duties, etc. of the registrar, clerks, interpreter,
sheriff, etc.]
DIVISION VI. FINAL REGULATIONS.
48. [Rules of Court, how to be framed.]
No. 169. THE LAW RELATING TO THE LOWER
COURTS OF JUSTICE. 1
DIVISION I. EXPLANATORY REGULATIONS.
I. Under the Lower Courts shall be included for the pur-
poses of this law :
(A) The Landdrost’ s Courts ;
(B) The Courts of Landdrost and Heemraden ;
1 Superseded by Ord. No. 7, 1902, “The Magistrates’ Courts Ordinance.”
Cf. Ord. No. 5, 1877, not printed.
-1902] THE LOWER COURTS 331
(C) De hoven van den assistent-landdrost, en het hof van
assistent-landdrost en heemraden ;
(D) De periodieke hoven van den landdrost.
2. De lagere gerechtshoven welke v66r het vaststellen van deze
wet, onder de in het vorig artikel gemelde benamingen in bestaan
waren, blijven voortbestaan, tenzij door den Volksraad daaromtrent
anders wordt bepaald, onderworpen aan de bepalingen van deze wet.
3. [Als beambten worden ook beschouwd tijdelijke plaatsver-
vangers.]
4. [Zondagen en feestdagen worden niet begrepen als dagen.]
AFDEELING II. HEX LANDDROSTHOF.
5. In het landdrosthof neemt de landdrost alleen zitting.
6. [Zittingen van dit hof nemen plaats op de hoofdplaats van een
district, en wel twee malen per week voor civiele zaken, en dagelijks
voor crimineele zaken.]
7. [In geval van onbevoegdheid of afwezigheid van den landdrost,
neemt de landdrostklerk diens plichten tijdelijk waar.]
8. [Of de Staatspresident kan iemand anders tijdelijk aanstellen.j
9. [Aanstelling per telegram zal wettig zijn.]
10. [Ambtseed of belofte.]
11. [Borgstelling van landdrosten.]
12. Behoudens eenige verdere macht aan den landdrost door deze
of eenige andere wetsbepaling verleend of te worden verleend, en
behoudens eenige beperking zijner macht daargesteld door wetsbepaling
(C) The Assistant Landdrost’s Courts, and the Court
of Assistant Landdrost and Heemraden ;
(D) The Periodical Courts of the Landdrost.
2. The Lower Courts, which before the passing of this law
were in existence under the names given in the last preceding
article, shall be continued, unless the Volksraad shall decide
otherwise, subject to the provisions of this law.
3. [Temporary substitutes shall also be regarded as officials.]
4. [Sundays and holidays are not regarded as days.]
DIVISION II. THE LANDDROST’S COURT.
5. In the Landdrost’s Court the Landdrost shall sit alone.
6. [Sessions of this Court shall take place in the chief town
of a district, viz., twice a week for civil cases, and daily for
criminal cases.]
7. [In case of incompetence or absence of the Landdrost,
the Landdrost’s Clerk shall fulfil his duties temporarily.]
8. [Or the State President may appoint another person
temporarily.]
9. [Appointment by telegram shall be lawful.]
10. [Oath of office or promise.]
11. [Landdrosts to give security.]
12. Saving any further power given to the Landdrost by
this or any other law or to be given hereafter, and saving any
limitation of his power made by any law now existing or here-
332 ORANGE FREE STATE [1867-
thans bestaande of later te worden vastgesteld, oefent het landdrosthof
burgerlijke rechtsspraak uit in civiele zaken in :
(A) Alle zaken niet van een liquiden aard waarin betrokken
is een bedrag of waarde geen zeven-en-dertig pond en
tien shillings sterling te boven gaande ;
(B) Alle zaken van liquiden aard, waarin betrokken is een
bedrag geen vijftig ponden sterling te boven gaande ;
(C) Alle zaken om iemand tot het doen van iets te verplichten,
in geval het niet doen daarvan door den eischer in zijne
dagvaarding geschat wordt op een bedrag als alternatief
niet te boven gaande zeven-en-dertig ponden en tien
shillings sterling ;
(D) Alle zaken tot ontruiming van eenig gebouw of grond
ingesteld door den geregistreerden eigenaar daarvan of
diens rechtverkrijgende, tegen eenig iemand die in het
bezit is daarvan, of ingesteld door den verhuurder, mits
de maandelijksche huur of huurwaarde van zoodanig
gebouw of grond niet te boven gaat een bedrag van zeven
pond en tien shillings sterling ;
(E) Alle zaken van gijzeling ingevolge vonnis van het land-
drosthof voor een tijdperk van een tot drie maanden.
13. [Bijzondere rechtspraak bij toestemming van partijen in zaken
niet boven de jurisdictie van het hof van landdrost en heemraden.]
after to be enacted, the Landdrost’ s Court shall pronounce
judgment in civil cases, as follows :
(A) In all cases of an illiquid nature, in which is involved
a sum or value not exceeding thirty-seven pounds
ten shillings sterling.
(B) In all cases of a liquid nature, in which is involved
a sum not exceeding fifty pounds sterling.
(C) In all cases which aim at compelling a person to
do something, in case non-compliance is esti-
mated by the plaintiff in his summons to give
him a claim to a sum not exceeding thirty-seven
pounds ten shillings sterling.
(D) In all cases for evicting any one from any building
or land, commenced by the registered owner
thereof, or by his attorney, against any person
who is in occupation thereof, or commenced by
the renter, provided that the monthly rent of
such building or land be not higher than the
sum of seven pounds ten shillings sterling.
(E) In all cases of imprisonment for debt, in terms of a
sentence of the Landdrost’ s Court, for a period
of from one to three months.
13. [Special jurisdiction, by agreement of parties, in cases
not beyond the jurisdiction of the court of Landdrost and
Heemraden.]
-1902] THE LOWER COURTS 333
14. [Verwijzing naar het hof van landdrost en heemraden van
zaken aldaar thuis hoorende.]
15. [Behoudens eenige verdere macht die den landdrost mag ver-
leend worden, zal hij in crimineele zaken als straf kunnen opleggen :]
(A) Eene geldboete niet te boven gaande tien pond sterling ;
of bij gebreke van betaling gevangenzetting niet te boven
gaande drie maanden.
(B) Gevangenzetting voor een tijd van niet langer dan drie
maanden, met of zonder dwangarbeid, met of zonder
schrale voeding, met of zonder slagen met een roede (lat)
of geesel (kats) geen vijf-en-twintig te boven gaande,
en met of zonder opsluiting in het blok of in boeien.
In geen geval zullen de lagere hoven rechtspraak kunnen uitoefenen
in de grovere misdaden, zooals bijvoorbeeld : Meineed, Hoogverraad,
Valsche Munt, Brandstichting, misdaden tegen het leven, Roof, Lands-
die verij, . . . enzoovoorts.
1 6. [Bijzondere jurisdictie van het landdrosthof in crimineele
zaken in geval van diefstal van groot of kleinvee.]
17. [Borgtocht tot bewaring van vrede kan door de landdrost
geeischt worden.]
1 8. [Ambtseed of belofte van de landdrost.]
19. [Borgstelling van de landdrostklerk.]
14. [Reference to the Court of Landdrost and Heemraden
of cases falling more properly within their jurisdiction.]
15. [Saving any further power which may be extended to
the Landdrost, he shall be entitled to inflict the following
.penalties in criminal cases :]
(A) A fine not exceeding ten pounds sterling ; or, in
default of payment, imprisonment for a period
not exceeding three months.
(B) Imprisonment for a period not longer than three
months, with or without hard labour, with or
without low diet, with or without lashes with a
cane or scourge, not exceeding twenty-five in
number, and with or without confinement in
stocks or in fetters. ^
In no case shall the Lower Courts be empowered to pro-
nounce judgment for the more serious crimes, as for example :
Perjury, High treason, Counterfeiting of coins, Arson, crimes
against life, Plundering, Embezzlement, . . . and so forth.
16. [Special jurisdiction of the Landdrost’ s Court in cases
of theft of cattle and the smaller kinds of stock.]
17. [Security for keeping the peace may be demanded by
the Landdrost.]
18. [The Landdrost’s oath of office or promise.]
19. [Security to be given by the Landdrost’s Clerk.]
334 ORANGE FREE STATE [1867-
20. [De landdrostklerk is registrateur ; hij moet ontvangsten verant-
woorden.]
21. [Fungeerende landdrostklerk.]
AFDEELING III. HEX HOF VAN LANDDROST EN HEEMRADEN.
22. In het hof van landdrost en heemraden nemen zitting de land-
drost, als voorzitter, en twee heemraden ; hebbende elk der drie leden van
het hof gelijke stem.
23. [Het hof neemt zitting op de hoofdplaats van het district
eenmaal in de maand.]
24. Zes heemraden voor elk district worden door den Volksraad
gekozen, ieder voor den tijd van twee achtereenvolgende jaren ; [doch
opengevallen plaatsen kunnen door de Staatspresident tijdelijk gevuld
worden.]
25. [Kennisgeving van aanstellingen in de Gouvernements Courant.]
De heemraden nemen zitting beurtelings in zoodanige orde als zij te
samen met den landdrost na hunne aanstelling mochten overeenkomen.
26. [Heemraden die zitting moeten nemen worden door den regi-
strateur aangeschreven.]
27. [Procedures bij afwezigheid van aangeschreven heemraden.]
28. [Afzetting door den Staatspresident van heemraden voor her-
haald verzuim van tegenwoordigheid. Toelage.]
29. [Ambtseed of belofte van heemraden.]
30. De rechtspraak van het hof van landdrost en heemraden in
20. [The Landdrost’s Clerk shall be registrar of the Court.
He must account for all receipts of money.]
21. [Acting Landdrost’s Clerk.]
DIVISION III. THE COURT OF LANDDROST AND HEEMRADEN.
22. In the Court of Landdrost and Heemraden shall take
session the Landdrost, as chairman, and two Heemraden, each
of the three members of the Court having an equal vote.
23. [The Court shall hold a session in the chief town of the
district once a month.]
24. Six Heemraden for each district shall be chosen by the
Volksraad, each for the period of two successive years ; [but
vacancies may be filled temporarily by the State President.]
25. [Notification of appointments in the Government
Gazette.] The Heemraden shall take session in turn in such
order as they shall agree upon with the Landdrost after their
appointment.
26. [Heemraden who are to take session shall be notified by
the registrar.]
27. [Procedure in the case of any Heemraad being absent
after having been notified.]
28. [Dismissal by the State President of any Heemraad who
repeatedly fails to attend. Payment of Heemraden.]
29. [Oath of office or promise of Heemraden.]
30. The jurisdiction of the Court of Landdrost and Heem-
-1902] THE LOWER COURTS 335
civiele zaken is zooals bepaald door het twaalfde artikel dezer wet,
gewijzigd door in plaats van de geldsbedragen daarin genoemd te lezen
het dubbele van die bedragen, zullende dit hof geen jurisdictie hebben
in zaken bij het landdrosthof te huis behoorende.
31. De rechtspraak van het hof van landdrost en heemraden in
crimineele zaken is zooals bepaald door de vijftiende en zeventiende
artikelen dezer wet, gewijzigd door in plaats van eenig getal daarin
genoemd, het dubbele van het getal te lezen, uitgezonderd,dat dit hof,
wat het toedienen van slagen betreft, geene meerdere jurisdictie dan
het landdrosthof hebben zal.
32. [Verwijzing van zaken naar het landdrosthof.]
33. [Verdaging, doch geen uitstel, van crimineele zaken in dit hof
toegelaten.]
34. [Landdrostklerk zal registrateur zijn.]
AFDEELING IV. HEX HOF VAN DEN ASSISTENT-LANDDROST EN VAN
ASSISTENT-LANDDROST EN HEEMRADEN.
35-41. [Het hof van den assistent-landdrost heeft gelijke juris-
dictie met het landdrosthof, en het hof van assistent-landdrost en
2 heemraden heeft gelijke jurisdictie met het hof van landdrost en
heemraden ; maar zij oefenen hun functie uit alleen in de wijk waarin
het dorp gelegen is alwaar de assistent-landdrost zitting houdt.]
raden in civil cases shall be, as is laid down in the twelfth article
of this law, modified by reading, instead of the sums of money
mentioned therein, twice the amount of those sums ; and this
Court shall have no jurisdiction in cases falling within the juris-
diction of the Landdrost’s Court.
31. The jurisdiction of the Court of Landdrost and Heem-
raden in criminal cases shall be as is laid down in the fifteenth
and seventeenth articles of this law, modified by reading, in-
stead of any number mentioned therein, twice the amount
of that number, with the exception that this Court shall, as
regards the imposing of lashes, have no higher jurisdiction
than the Landdrost’s Court.
32. [Cases properly belonging to the Court of the Landdrost
shall be referred to him.]
33. [Adjournment, but no postponement of criminal cases,
shall be permitted in this Court.]
34. [The Landdrost’s Clerk shall be registrar.]
DIVISION IV. THE COURTS OF THE ASSISTANT LANDDROST
AND OF ASSISTANT LANDDROST AND HEEMRADEN.
35-41. [The Court of the Assistant Landdrost shall have
equal jurisdiction with the Landdrost’s Court, and the Court
of Assistant Landdrost and 2 Heemraden shall have equal
jurisdiction with the Court of Landdrost and Heemraden ; but
each of these Courts shall exercise its functions only in the
ward in which is situated the village where the Assistant
Landdrost holds his sessions.]
336 ORANGE FREE STATE [1869
AFDEELING V. HET PERIODIEK HOP.
42-48. [Te worden gehouden door den landdrost van het district,
of door iemand anders door den President benoemd, en wel vier keeren
in het jaar op elk der dorpen, Lindley , Brandfort, Dewetsdorp, Redders-
burg, Edenburg, Frankfort, Vredefort, Zastron, Senekal, Ventcrsburg,
Bultfontein en Parijs.]
[Enz.j
O.V.S. Wetboek, 1854-91, p. 59.
DIVISION V. THE PERIODICAL COURT.
42-48. [To be held by the Landdrost of the district, or by
some other person appointed by the President, four times a
year, at each of the villages of Lindley, Brandfort, Dewets-
clorp, Reddersburg, Edenburg, Frankfort, Vredefort, Zastron,
Senekal, Ventersburg, Bultfontein, and Parijs.]
[Etc.]
No. 170. THE CONVENTION OF ALIWAL NORTH.
[12 Feb. 1869.]
[In 1867 during a war between the Free State and the Basutos,
Moshesh, who had been driven from one stronghold after another and
whose power was on the point of being finally broken, sent urgent
entreaties to the High Commissioner requesting to be taken over with
his people as British subjects. Basutoland was consequently declared
British territory, and this document was drawn up to establish the
boundaries and to agree on other points. Cf. C. of G. Hope Act No. 12
of 1871, p. 61.]
His Excellency Sir PHILIP EDMOND WODEHOUSE, . . . Governor
of the Colony of the Cape of Good Hope, Her Britannic
Majesty’s High Commissioner for the Affairs of South
Africa, etc. etc. etc., acting on behalf, and in the name, of
the Government of Her Britannic Majesty, on the one
part ;
And JOHANNES HENDRICUS BRAND, Esq., President of the
Orange Free State, HENDRIK ANTONIE LODEWYK HAMEL-
BERG, Esq., CORNELIUS JANSE DE VILLIERS, Esq., JACOBUS
JOHANNES VENTER, Esq., and ANDRIES JACOBUS BESTER,
Esq., Members of the Volksraad of the Orange Free State,
appointed as Commissioners by, and acting on behalf,
and in the name of, the Government of the Orange Free
State, on the other part ;
Having met at Aliwal North, in the Colony of the Cape of
Good Hope, in South Africa, for the purpose of negotiating
about all pending questions with regard to the Basuto affairs,
have agreed, as they hereby agree :
ART. i. The boundary line between Basutoland, forming
part of the British Empire by virtue of the proclamation of
his Excellency the High Commissioner of Her Britannic
1869] CONVENTION OF ALIWAL 337
Majesty, dated I2th March 1868, and the Orange Free State,
shall, subject to the provisions contained in the 6th Article
hereof, be as follows : From the junction of the Cornetspruit
with the Orange River, along the centre of the former to the
point nearest to Olifantsbeen ; from that point to Olifants-
been ; from Olifantsbeen to the southern point of Langberg ;
along the top of Langberg to its north-western extremity ;
from thence to the eastern point of Jammerberg : along the
top of Jammerberg to its north-western extremity ; from
thence, by a prolongation of the same, to the Caledon River ;
along the centre of the Caledon River to where the Putisani
falls into it ; along the centre of the Putisani to its source in
the Drakensberg ; from thence along the Drakensberg.
ART. 2. The boundary line mentioned in Art. i shall be
marked off, and proper beacons shall be erected along the
same without delay as far as may be deemed necessary, by
two or more Commissioners, to be appointed respectively by
his Excellency the High Commissioner and the President of
the Orange Free State, in the presence of two land surveyors,
who shall be appointed in the same manner, and who shall
frame two similar sketches of the said boundary line or such
part of the same as shall be marked off, to be signed by them
and by the Commissioners aforesaid, one to be transmitted
to his Excellency the High Commissioner, and one to the
President of the Orange Free State.
ART. 3. The Government of the Orange Free State hereby
acknowledges the Basutos domiciled on the eastern side of
the boundary line mentioned in Art. i to be British subjects.
ART. 4. All natives who have been allowed or permitted
by the Government of the Orange Free State to establish
themselves on the Free State side of the boundary line men-
tioned in Art. i are hereby acknowledged to be subjects of the
Orange Free State.
ART. 5. Such Basutos, not falling within the terms of Art. 4
or Art. 7, as at present live on the western side of the boundary
line mentioned in Art. i, shall be allowed to remain on the said
side until the 3ist day of July 1869, in order to enable them to
reap and remove their crops ; and after the said day, unless
specially permitted by the Government of the Orange Free
State to remain, shall be obliged to quit the territory of the
said State. Such of them as may fail to comply herewith
may be expelled by such means as the Government of the
Orange Free State may think fit to adopt for that purpose.
ART. 6. Upon the written request of the Chief Molapo to
the Volksraad of the Orange Free State for himself and his
people to be relieved from their subjection to that State, and
to become British subjects, the Volksraad shall grant the said
22
338 ORANGE FREE STATE [1869
request ; whereupon the land between the Putisani, the
Caledon River, and the Drakensberg shall cease to form part
of the territory of the Orange Free State ; and the boundary
line mentioned in Art. i, instead of running along the centre
of the Caledon River to where the Putisani falls into it, along
the centre of the Putisani to its source in the Drakensberg,
and from thence along the Drakensberg, shall thereafter be
taken to run along the centre of the Caledon River to its source
in the Drakensberg.
ART. 7. The French missionary establishments, Mequatling
and Mabolele, shall be maintained for the reasonable purposes
of the mission, and the missionaries and natives residing on
them shall be subject to such regulations as shall from time to
time be made by the Government of the Orange Free State
for the proper management of the same ; and 1,500 morgen
of land, or such addition of ground as the Volksraad of the
said State may consider necessary and practicable, shall be
assigned to each of the said establishments. The French
Missionary Society, however, or their representatives, shall
be entitled at any time to give them up as such, and to
dispose of the same should they consider it advisable to do so.
ART. 8. There shall be free intercourse, personal and com-
mercial, between the white inhabitants residing in the Orange
Free State on the one side, and Basutoland on the other side,
subject to such laws and regulations now in force or to become
in force in the two countries respectively.
ART. 9. No natives residing in Basutoland shall be allowed
to enter or pass through the territory of the Orange Free State,
and no natives residing in the Orange Free State shall be
allowed to enter or pass through Basutoland, otherwise than
in conformity with such conditions and regulations as are
now in force or may hereafter be enacted by the Volksraad
of the Orange Free State, and by or in the name of the British
Government respectively.
ART. 10. It is stipulated between the two contracting
parties that from both sides criminals shall be delivered, upon
the terms which shall be agreed upon hereafter, between the
Government of Her Britannic Majesty on the one part, and
the Government of the Orange Free State on the other part,
and which shall constitute the subject of a special convention,
as soon as the Government of Basutoland shall have been
constituted.
ART. ii. It is stipulated between the two contracting
parties that the manner in which thefts of cattle and other
property are to be proved, the manner in which the spoor of
stolen cattle is to be traced, the manner in which compensation
for thefts is to be claimed and to be obtained, and all other
1669] CONVENTION OF ALlWAL 339
matters connected therewith, shall form the subject of a
separate agreement, to be entered into from time to time
between the Government of Her Britannic Majesty and the
Government of the Orange Free State, or such Commissioners
as may be appointed by them for the said purpose.
ART. 12. His Excellency the High Commissioner agrees to
submit to arbitration the claim of the Orange Free State to
compensation for thefts committed and other damage done
by the Basutos to the inhabitants of the Orange Free State,
and the claim of the Basutos to like compensation since the
date of the proclamation of his Excellency the High Commis-
sioner, by which the Basutos have become British subjects,
should the Volksraad of the Orange Free State desire such
arbitration.
ART. 13. In the same manner his Excellency the High
Commissioner agrees to arbitration with regard to the claim
of the Orange Free State to compensation for the abandonment
of the land situate between the boundary line mentioned in
Art. i of the Treaty of Peace between the Orange Free State
and the Chief Moshesh, dated 3rd April 1866, and that men-
tioned in Art. i of the present Convention, and in the case
provided for by Art. 6 for the abandonment of the land situate
between the Putisani, the Caledon River, and the Drakensberg.
ART. 14. Nothing herein contained shall be construed
to set aside or invalidate the Convention entered into on the
23rd February 1854, between Sir George Russel Clerk, Her
Britannic Majesty’s Special Commissioner, and the repre-
sentatives delegated by the inhabitants of the Orange River
Territory, nor any part of the same, nor shall the Proclamation
of his Excellency the High Commissioner, dated I2th March
1868, be held to have been a violation of said Convention.
ART. 15. Nothing in the preceding Articles contained shall
be held to prevent the acceptance by the Volksraad of the
Orange Free State of the proposals made to the Commissioners
of the said State by his Excellency the High Commissioner
on the 5th day of February 1869, as the same are set forth in
the schedule hereto annexed. And if such proposals shall be
accepted by the said Volksraad, then the ist, 2nd, 3rd, 4th,
5th, 6th, 7th, and I3th of the preceding Articles shall be
deemed to have been cancelled, and the several Articles con-
tained in the said proposals shall be taken to be Articles of
this Convention.
ART. 16. The present Convention, subject to the con-
firmation and ratification of the Government of Her Britannic
Majesty on the one part, and of the Government of the Orange
Free State on the other part, shall be carried immediately
into execution, without waiting for the exchange of ratifications
340 ORANGE FREE STATE [1869
which shall take place in Cape Town, in the Colony of the
Cape of Good Hope, within six months from this date.
Thus done and signed at Aliwal North, in the Colony of
the Cape of Good Hope, this I2th day of February, in the year
of our Lord One Thousand Eight Hundred and Sixty-nine.
(Signed) P. E. WODEHOUSE.
J. H. BRAND.
H. A. L. HAMELBERG.
C. J. A. DE VILLIERS.
J. J. VENTER.
A. J. BESTER.
SCHEDULE.
1. The border between the Free State and Basutoland shall
be that recognised before the war of 1865.
2. All persons to whom the Government of the Free State
shall, before the ist day of April 1868, have sold or granted
farms lying between the line in the preceding article mentioned,
and the line described in a letter from the High Commissioner
to the President, of the I4th April 1868, and who shall have
complied with the conditions of the sale or grant, shall, subject
to the stipulations herein-after contained, receive titles for
the same from the British Government. All instalments
remaining under the conditions of sale shall be paid to the
Free State.
3. It shall be open to the British Government in any case
in which special circumstances may render it necessary to do
so, to withhold the title and resume the possession of any
such farm, on condition of granting to the purchaser or grantee
a farm of equal value or compensation in money.
4. All the said farms that have become forfeited for non-
fulfilment of the conditions of sale or grant shall revert to the
British Government, and any such forfeited farms shall be
available for the purpose of the preceding Article ; and such
of the said farms as shall not be applied to such purposes shall
be sold, and of the proceeds of sale two-thirds shall be paid
to the Government of the Free State.
5. The obligation of personal residence on the part of the
purchaser or grantee or his substitute shall be abolished, and
the quitrent payable for every such farm shall be at the rate
of five pounds per annum for each thousand morgen.
6. The British Government shall, in consideration of the
above-stated arrangement, pay to the Government of the
Free State, over and above all sums accruing under the pre-
ceding Articles, the sum of fifty thousand pounds sterling on
or before the day of next ; and in
default of such payment, and until the same shall be made,
1876] LOSS OF DIAMOND FIELDS 341
pay annually the sum of three thousand pounds, commencing
from the day on which the first payment of quitrent shall
become due under the preceding Article.
(Signed) P. E. WODEHOUSE.
5th February 1869.
Subject to the regulations to be hereafter made, it is agreed :
1. Whenever the spoor of stolen cattle or horses is traced
across the boundary line to Basutoland, the officer of the
British Government stationed nearest to the place where
the theft was committed, shall, upon receiving report thereof,
be bound to aid the owner of the stolen property, or the person
acting on his behalf, in tracing the spoor until the stolen
cattle or horses are discovered in Basutoland, or until the spoor
is lost, and further to give every aid and assistance which
may Jead to the discovery and punishment of the thief, and
the recovery and restitution of the stolen property. Informa-
tion shall be given by the Agent of the High Commissioner
from time to time to the authorities of the Orange Free State
of the names and place of residence of the officers on the border.
2. If the spoor of any stolen cattle or horses shall be traced
across the boundary line to the Orange Free State, it shall be
reported to the nearest field-cornet of the Orange Free State,
who shall be bound to afford every assistance in tracing the
spoor and discovering and apprehending the thief, in order
that he may be dealt with according to law, and that the stolen
property may be recovered and restored.
(Signed) P. E. WODEHOUSE.
J. H. BRAND.
H. A. L. HAMELBERG.
C. J. DE VILLIERS.
J. J. VENTER.
A. J. BESTER.
ALIWAL NORTH, izth February 1869.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 96.
No. 171. SETTLEMENT OF THE DIAMOND FIELDS
DISPUTE.
[In 1866 and the years following, diamonds were discovered by
Europeans along the banks of the Orange River, the Modder, and the
Vaal, not far from the points where these rivers meet. Some of the
land on which digging was soon commenced fell within Free State
territory, but parts were also claimed by the South African Republic.
A third claimant was Waterboer, a Griqua chief. The claims were
submitted to arbitration. The Orange Free State declined to present
its case before the court, holding that its claim was incontestable, as
the territory fell within boundaries previously agreed upon by the
342 ORANGE FREE STATE [1876
British authorities. The case of the other Republic was badly pre-
sented, and the result was that the claims of Waterboer were estab-
lished. He was immediately taken over with his people as British
subjects, his territory becoming a Crown colony under the name of
Griqualand West. A few years later actions were brought before court
by two sets of claimants to certain farms in Griqualand. One set based
their claims on grants made by Waterboer, another set on grants made
by the Orange Free State. The judge rejected Waterboer’s grants ;
whereupon the President of the Free State went to England to renew
the claims of his country. The present document shows the agree-
ment arrived at.]
LONDON, July 13, 1876.
Memorandum of Agreement between the Right Honourable
the EARL OF CARNARVON, Her Majesty’s Secretary of
State for the Colonies, representing Her Majesty’s Govern-
ment, and his Honour PRESIDENT BRAND, for the Orange
Free State, who, having met and fully communicated
with each other for the purpose of arriving at an under-
standing with regard to the Frontier Line between the
British and the Orange Free State Territories, and as to
the sum to be paid by Her Majesty’s Government to the
Orange Free State in full settlement of all claims with
respect to the Diamond Fields and the question of Sover-
eignty over the lands hitherto in dispute, hereby agree
as follows :
1. The frontier shall be known and recognised hereafter
(subject to the provisions in paragraph No. 2) by a line drawn
from Rama (Fountain), passing through David’s Graf (close
above the junction of the Riet and Modder rivers) to the
beacon standing on Tartantal Kop (and marked by De Villiers
on the map referred to hereafter), thence by a straight line
at right angles to the line from David’s Graf to the summit of
Platberg, and from the point where the two lines join, thence
to the summit of Platberg, thence in a straight line to the
point marked G on the said map, on the River Vaal, including
the whole of the places known as the Diamond Fields.
2. The boundary line given shall be drawn so as to leave
within the Free State territory the farm belonging to Gideon
Joubert, and the four farms occupied by Commandant Dolf
Erasmus, according to the boundaries of the said farms as
registered in the Registry of Deeds Office at Bloemfontein,
on the 27th October 1871, but verified and certified by ex-
amination, and by marking of beacons, to be made on the
spot by two experts, approved by the Right Honourable the
Earl of Carnarvon and his Honour President Brand.
3. The map now in the hands of the Right Honourable
the Earl of Carnarvon, drawn by Mr. Jonas de Villiers, of the
Free State, and signed in duplicate by the Right Honourable
1876] LOSS OF DIAMOND FIELDS 343
the Earl of Carnarvon and his Honour President Brand, shows
the line of boundary as herein set forth. But it is admitted
that this map is to be verified and approved on the spot by
the experts herein referred to, who will mark out the line of
boundary by beacons, and make out two copies of the chart,
and sign the same, which is to be completed within six months,
unless prevented by unforeseen circumstances, or sooner if
possible.
4. The amount to be paid by Her Majesty’s Government on
the due fulfilment and carrying out of the details of this agree-
ment is hereby fixed at the sum of 90,000^. sterling, payable
as follows : 2o,ooo/. payable at Bloemfontein on the com-
pletion of the surveys and settlement of the boundaries by
beacons in bills drawn by the Treasurer-General of the Orange
Free State upon Her Majesty’s Government in London at sixty
days after sight, and the remainder (7o,ooo/. sterling) by bills
equal to cash in London on the completion of the documents
exchanged there.
5. The Right Honourable the Earl of Carnarvon and his
Honour President Brand hereby express their cordial satisfac-
tion with the foregoing arrangement as a just and fair settle-
ment in full of the question referred to herein and heretofore
in dispute ; and all grounds for controversy now being removed,
the Right Honourable the Earl of Carnarvon and his Honour
President Brand, for themselves and for Her Majesty’s Govern-
ment and for the Orange Free State, agree to seek, by friendly
co-operation hereafter, all that can advance the common
interests of their respective countries.
(Signed) CARNARVON.
J. H. BRAND.
In the presence of
(Signed) DONALD CURRIE.
DONOUGHMORE.
LONDON, July 13, 1876.
Further Memorandum of Agreement between the Right Honour-
able the EARL OF CARNARVON, for Her Majesty’s Govern-
ment, and PRESIDENT BRAND, on behalf of the Orange
Free State respectively :
The questions at issue between Her Majesty’s Government
and the Orange Free State having been arranged this day,
as set forth in the Memorandum of Agreement to which this
is attached,
The Right Honourable the Earl of Carnarvon has proposed
to President Brand, as an additional proof of his good feeling
towards the Orange Free State, and of his desire for its material
344 ORANGE FREE STATE [1900
prosperity, that if, within five years from this date, the Orange
Free State shall establish a line of railway to connect with the
Natal Railway, or any line of railway which the Cape Colcny
may make, then and in such case Her Majesty’s Government
will pay to the Orange Free State the sum of I5,ooo/. sterling,
without any further condition than that this amount so payable
is to be employed in the construction of the line of railway
referred to within the territory of the Orange Free State ;
And President Brand, fully recognising in this offer the
friendly disposition of Her Majesty’s Government towards the
Orange Free State, but not feeling himself authorised to decide
in this matter, seeing that the subject of railways rests entirely
with the Volksraad of the Orange Free State, accepts the same
in the spirit in which the Right Honourable the Earl of Car-
narvon has made it, subject to the approval of the Volksraad,
to whom the President will submit the proposal, and obtain
their decision, within three months after his arrival at Bloem-
fontein, and communicate the same to the Right Honourable
the Earl of Carnarvon without delay.
(Signed) CARNARVON.
J. H. BRAND.
In the presence of
(Signed) DONALD CURRIE.
DONOUGHMORE.
Parl Papers, S. Africa, C.O. (42), 1884, p. 108.
No. 172. ANNEXATION OF THE ORANGE FREE
STATE. [24 May 1900.]
PROCLAMATION.
WHEREAS certain territories in South Africa heretofore
known as the Orange Free State, have been conquered by Her
Majesty’s Forces, and it has seemed expedient to Her Majesty
that the said territories should be annexed to, and should
henceforth form part of ‘Her Majesty’s dominions, and that I
should provisionally, and until Her Majesty’s pleasure is more
fully known, be appointed Administrator of the said territories
with power to take all such measures and to make and enforce
such laws as I may deem necessary for the peace, order and
good government of the said territories ;
Now, Therefore,
I, Frederick Sleigh, Baron Roberts of Kandahar, K.P. [etc.],
by Her Majesty’s command, and in virtue of the power and
authority conferred upon me in that behalf by Her Majesty’s
Royal Commission, dated the 2ist day of May 1900, and in
accordance with Her Majesty’s instructions thereby and other-
1902] ANNEXATION 345
wise signified to me, do proclaim and make known that, from
and after the publication hereof, the territories known as the
Orange Free State are annexed to and form part of Her Majesty’s
dominions, and that, provisionally and until Her Majesty’s
pleasure is fully declared, the said territories will be administered
by me with such powers as aforesaid.
Her Majesty is pleased to direct that the new territories
shall henceforth be known as the Orange River Colony.
GOD SAVE THE QUEEN.
Given under my hand and seal at the Headquarters of the
Army in South Africa, Camp South of the Vaal River in the
said territories, this 24th day of May in the year of our Lord
1900.
ROBERTS, Field-Marshal, Commanding-
in-Chief Her Majesty’s Forces in
South Africa.
Laws of the O.R.C., 1900-6, p. 291.
No. 173. THE VEREENIGING PEACE TREATY.
[31 May 1902.]
General LORD KITCHENER of Khartoum, Commanding-in-
Chief, and His Excellency Lord MILNER, High Com-
missioner, on behalf of the British Government,
AND
Messrs. S. W. BURGER, F. W. REITZ, Louis BOTHA, J. H. DE
LA REY, L. J. MEYER, and J. C. KROGH, acting as the
Government of the South African Republic,
AND
Messrs. W. J. C. BREBNER, C. R. DE WET, J. B. M. HERTZOG,
and C. H. OLIVIER, acting as the Government of the
Orange Free State,
On behalf of their respective Burghers,
Desirous to terminate the present hostilities, agree on the
following Articles :
1. The Burgher Forces in the field will forthwith lay down
their arms, handing over all guns, rifles, and munitions of war,
in their possession or under their control, and desist from
any further resistance to the authority of His Majesty King
Edward vn., whom they recognise as their lawful Sovereign.
The manner and details of this surrender will be arranged
between Lord Kitchener and Commandant-General Botha,
Assistant Commandant-General De La Rey, and Chief Com-
mandant De Wet.
2. Burghers in the field outside the limits of the Transvaal
346 ORANGE FREE STATE [1902
and Orange River Colony, and all prisoners of war at present
outside South Africa, who are burghers, will, on duly declaring
their acceptance of the position of subjects of His Majesty King
Edward vn., be gradually brought back to their homes as soon
as transport can be provided and their means of subsistence
ensured.
3. The burghers so surrendering or so returning will not be
deprived of their personal liberty, or their property.
4. No proceedings, civil or criminal, will be taken against
any of the burghers so surrendering or so returning for any
acts in connection with the prosecution of the war. The
benefit of this clause will not extend to certain acts contrary
to the usage of war which have been notified by the Com-
mander-in-Chief to the Boer Generals, and which shall be
tried by Court-Martial immediately after the close of hostilities.
5. The Dutch language will be taught in public schools
in the Transvaal and the Orange River Colony where the
parents of the children desire it, and will be allowed in Courts
of Law when necessary for the better and more effectual
administration of justice.
6. The possession of rifles will be allowed in the Transvaal
and Orange River Colony to persons requiring them for their
protection on taking out a licence according to law.
7. Military administration in the Transvaal and Orange
River Colony will at the earliest possible date be succeeded by
civil government, and, as soon as circumstances permit, repre-
sentative institutions, leading up to self-government, will be
introduced.
8. The question of granting the franchise to natives will
not be decided until after the introduction of self-government.
9. No special tax will be imposed on landed property in
the Transvaal and Orange River Colony to defray the expenses
of the war.
10. As soon as conditions permit, a Commission, on which
the local inhabitants will be represented, will be appointed
in each district of the Transvaal and Orange River Colony
under the presidency of a magistrate or other official, for the
purpose of assisting the restoration of the people to their homes
and supplying those who, owing to war losses, are unable to
provide for themselves, with food, shelter, and the necessary
amount of seed, stock, implements, etc., indispensable to the
resumption of their normal occupations.
His Majesty’s Government will place at the disposal of
these Commissions a sum of three million pounds sterling for
the above purposes, and will allow all notes, issued under
Law No. i of 1900 of the Government of the South African
Republic, and all receipts given by the officers in the field of
1902] VEREENIGING TREATY 347
the late Republics or under their orders, to be presented to a
Judicial Commission, which will be appointed by the Govern-
ment, and if such notes and receipts are found by this Com-
mission to have been duly issued in return for valuable
consideration they will be received by the first-named Com-
missions as evidence of war losses suffered by the persons to
whom they were originally given. In addition to the above-
named free grant of three million pounds, His Majesty’s
Government will be prepared to make advances as loans for the
same purposes, free of interest for two years, and afterwards
repayable over a period of years with 3 per cent interest.
No foreigner or rebel will be entitled to the benefit of this
clause.
Signed at Pretoria this thirty-first day of May in the Year
of Our Lord One Thousand Nine hundred and Two.
(Signed)
KITCHENER OF KHARTOUM. S. W. BURGER.
MILNER. F. W. REITZ.
Louis BOTHA.
J. H. DE LA REY.
L. J. MEYER.
J. C. KROGH.
C. R. DE WET.
J. B. M. HERTZOG.
W. C. J. BREBNER.
C. H. OLIVIER.
Statute Law of the Transvaal, 1900-6, ii. 445.
ORANGE RIVER COLONY : ADMINISTRATION OF
JUSTICE, 1902-1910.
[With regard to the administration of justice in the lower courts,
Ord. No. 7 of 1902 (7 Aug.) swept away the district courts of Landdrosts,
of Assistant Landdrosts, of Landdrosts and Heemraden, and of Assistant
Landdrosts and Heemraden. Courts of Resident Magistrates were
set up, and to these officials fell the jurisdiction, powers and duties of
the old Landdrosts and their Courts. The Cape model set up in 1828
was followed ; consequently, by Ord. No. 8 of 1902, the new Resident
Magistrates were also empowered to exercise in their respective districts
the powers and functions of Civil Commissioners. The provisions of
Ord. No. 7 of 1902 were repeatedly modified, as e.g. by the Petty Debts
Recovery Ordinance, No. 2 of 1906 ; but the general plan was main-
tained.
A High Court of Justice for the Orange River Colony was set up at
Bloemfontein by Ord. No. 4 of 1902 (16 July). There were to be two
judges, which number was changed to three by Ord. No. 13 of 1904.
The judges held office during good behaviour. Criminal cases were to
be tried by one judge and a jury of nine. By the former of these
ordinances appeals in criminal cases from the Superior Courts of the
348 ORANGE RIVER COLONY
O.R.C. were to be made to the Supreme Court of the Transvaal, but in
1904 the High Court was substituted for the Transvaal Court as a Court
of Appeal. Circuit Courts were continued by both ordinances.]
ORANGE RIVER COLONY : MUNICIPAL GOVERN-
MENT, 1902-1910.
[By Ord. No. 6 of 1904 Municipal Councils in the various towns
were provided for, consisting of from five to ten members elected by
resident house-holders whose rates were paid. The Councillors could
elect one of their number as Mayor. Special provisions were made in
the case of Bloemfontein and Jagersfontein.
By Ord. No. 12 of 1904 Boards of Management could be elected
for the villages of the O.R. Colony.
Both sets of bodies were empowered to frame regulations for their
respective localities, which were to be submitted to the voters for their
approval before they could be enforced. The local bodies could im-
pose and collect certain local rates.]
THE INTER-COLONIAL COUNCIL.
[See p. 516.]
CHAPTER IV.
THE SOUTH AFRICAN REPUBLIC.
No. 174. THE THIRTY-THREE ARTICLES.
[During the years 1836 to 1844, the period intervening between the
commencement of the Great Trek and the date of this document, there
were three main groups of emigrants who settled round the spots where
now stand the towns of Pietermaritzburg in Natal, Winburg in the
Orange Free State and Potchefstroom in the Transvaal, though there
were several minor posts. The Natal group was the first to establish
a settled form of government which had begun to pass legislative
enactments about the middle of 1839. The following year they were
joined in a sort of union by the people residing at the other two places.
It was probably on this occasion that an Adjunct Raad was set up
at Potchefstroom, with a vague authority also over the people in the
neighbourhood of Winburg. The body had to report any resolutions
that it might pass, and was in other respects subject to the Volksraad
at Pietermaritzburg, though in minor matters it was regarded as
independent of the older legislature. It is not known whether the
people of Potchefstroom took any action or passed any resolution with
regard to the capitulation of the Natal Volksraad to the British in 1843,
but obviously they did not regard themselves as affected thereby.
The law given here was probably passed by the old Adjunct Raad, but
portions of it remained in force for many years.]
DE DRIE EN DERTIG ARTIKELEN. 1 [9 April 1844.]
ZIJNDE ALGEMEENE BEPALINGEN EN WETTEN VOOR DE
TEREGTZITTINGEN.
ART. i. Alle teregtzittingen zullen in net openbaar gehouden
worden.
2. De toehoorders zullen de teregtzittingen met ongedekte hoofden
bijwonen en voorts een betamelijk ontzag en stilzwijgen bewaren. Al
wat de President tot handhaving der goede orde beveelt, zal stiptelijk
ten uitvoer gebragt worden.
THE THIRTY-THREE ARTICLES. 1 [9 April 1844.]
BEING GENERAL REGULATIONS AND LAWS FOR THE
LAW SESSIONS.
ART. i. All law sessions shall be open to the public.
2. The audience shall uncover their heads while attending
the law sessions and shall further maintain a decorous and
respectful silence. Whatever the President orders for the
maintenance of good order shall be strictly carried out.
1 Formally repealed by Procl. No. 34 of 1901.
349
350 SOUTH AFRICAN REPUBLIC [1844
Ingeval dat een of meet der personen, gedurende de openbare
teregtzitting de stilte storen, en teekens van goed-of afkeuring geven,
hetzij bij het verdedigen der parti j,hetzij bij aanmaning of waarschuwing
van den voorzitter of bij het uitspreken van vonnissen en bevelschriften,
of op welke wijze ook geraas maken, of bewegingen verwekken ; en
zij op die waarschuwing van den bode zich niet dadelijk stil houden,
dan zal hun gelast worden te vertrekken ; en die zich daartegen verzet,
zal terstond in een huis van burger arrest gezet worden, voor den tijd
van 24 uren of langer naar den aard der zaak. Wanneer de President
het zal noodig achten, zoo zal hij door de toehoorders geadsisteerd
worden zoodanige ongehoorzame personen in hechtenis te brengen.
4. Indien zoodanige personen weigerachtig zijn om den President
te adsisteren, zullen zij in regten kunnen worden vervolgd.
5. Indien eenig regterlijk persoon of personen, in de uitoefening
hunner pligten, door beleedigingen of dreigementen zal gehinderd
worden door eenig persoon of personen, zal de zoodanigen, na behoor-
lijk onderzoek en getuigenis, gestraft worden met eene geldboete of
gevangenisstraf naar den aard der zaak ; maar de beledigde regter
zal in zoodanig geval niet als regter mogen fungeren.
6. Elk lid van den Burgerraad dezer maatschappij kan zoowel door
den beklaagden als beschuldiger, als ook door de andere leden van den
Raad kunnen afgekeurd worden. Geene Bastaarden zullen in onze
vergaderingen als lid of regter mogen zitten tot het tiende gelid. Ten
iste, wanneer de beklaagde of beschuldigde in bloedverwantschap of
3. In case one or more of the persons should cause a dis-
turbance during the public session and should show signs of
approval or disapproval, whether during the defence of the
party, or during the admonition or warning of the chairman,
or while sentences are being passed or decrees issued, or in
any way make a noise or create commotion ; and if they
should not immediately keep silence when warned by the
messenger, then they shall be ordered to depart ; and he
who opposes such order shall at once be placed under civil
arrest for the period of 24 hours or longer, according to the
nature of the case. When the President may deem it necessary,
he shall be assisted by the audience in taking in charge such
disobedient persons.
4. If such persons should be unwilling to assist the President,
they shall be liable to be prosecuted according to law.
5. If any judicial person or persons should, in the execution
of their duties, be hindered by any person or persons through
insults or threats, then such persons, after proper examina-
tion and evidence, shall be punished with a fine or imprison-
ment according to the nature of the case ; but the insulted
judge shall in that case not be allowed to act as judge.
6. Every member of the Burgerraad of this communit} 7
may be objected to by the defendant as well as the accuser,
as also by the other members of the Raad. No half-castes,
down to the tenth degree, shall be entitled to sit in our meet-
ings as a member or judge. [Nor shall a man act as judge :]
1844] THIRTY-THREE ARTICLES 351
zwagerschap bestaat, tot in den^derden graad ingeslpten ; 2de, indien
hij persoonlijk belang in de zaak heeft ; 3de, indien hij eenige
schriftelijke raadslagen in de zaak gegeven heeft ; 4de, indien hij
gedurende het proces geschenken van iemand, die bij de zaak belang
heeft, ontvangen heeft, of dezelve aan hem beloofd zijn ; 5de, indien
de regter, voogd of toeziende voogd, redderaar of vermoedelijke
erfgenaam, of begiftigde van een der partijen is ; 6de, indien er eenige
hooge graad van vijandschap tusschen den regter en den beklaagde
of beschuldigde plaats vindt of bestaat ; /de, indien er tusschen den
regter en den beklaagde of beschuldigde, sedert den aanleg van het
proces, of binnen den tijd van zes maanden hebben plaats gehad
beleedigingen of dreigementen.
7. De afkeuring moet mondelings of bij geschrifte worden voorge-
dragen, zoodra de teregtzitting hare aanvang neemt ; maar in den loop
des onderzoeks is men daartoe niet meer geregtigd.
8. leder Commandant, onder-Commandant, Veldcornet of assistent
Veldcornet, van de gewapende magt dezer maatschappij, die na wettige
oproeping van den Raad of burger lijk gezag zal weigeren de magt die
onder zijn bevel staat, in het werk te stellen, zal gestraft worden met
geldboeten van 50 tot 100 Rijks. of gevangenis naar den aard der zaak.
9. Al diegenen die met buitenlandsche Mogendheden, of hunne
Gouverneurs of Ambtenaren aanslagen of verstandhoudingen zullen
gevormd hebben, ten einde dezelve tot het plegen van vijandschappen,
of het ondernemen van oorlogen tegen deze Republiek over te halen,
istly, if the plaintiff or the defendant stands [to him] in rela-
tionship by blood or marriage to the third degree inclusive ;
2ndly, if he has a personal interest in the case ; 3rdly, if he
has given any written advice in the case ; 4thly, if during the
action he has received gifts from anyone interested in the
case, or if such gifts have been promised him ; 5thly, if the
judge is the guardian or acting guardian, agent or probable
heir or the beneficiary of either of the parties ; 6thly, if enmity
to any great extent between the judge and the plaintiff or
the defendant is aroused or exists ; 7thly, if since the com-
mencement of the action or within six months insults or
threats have been employed between the judge and the plaintiff
or the defendant.
7. The challenge must be brought forward verbally or in
writing as soon as the sitting begins ; but in the course of the
examination no person shall be further entitled thereto.
8. Every Commandant, sub-Commandant, Field-cornet or
assistant Field-cornet of the armed force of this community
who, on being lawfully called up by the Raad or by the burgher
authority, refuses to set in motion the force under his command,
shall be punished with a fine of 50 to 100 Rix-dollars or with
imprisonment according to the nature of the case.
9. All those who shall have formed plans or come to an
understanding with foreign powers or their governors or
officials with a view to inducing them to perform acts of
hostility or to undertake the waging of war, or with a view to
352 SOUTH AFRICAN REPUBLIC [1844
of hun de middelen daartoe te verschaffen, of pogingen aanwenden om
verraad te plegen, die zal gestraft worden met eene geldboete van
Rijks. 500, en uit onze maatschappij verbannen worden ; en indien
hij wederkeerd, zal hij vogelvrij verklaard worden.
10. En al degenen die zich voor dato dezer hebben schuldig gemaakt
aan bovenstaand artikel, zal indien hij een ambtenaar mogt zijn, van
zijnen post worden ontzet ; en indien hij een privaat persoon is nimmer
eene post krijgen, en in onze maatschappij geen ambt bekleeden.
n. Al diegenen welke kennis dragen van eene zamenspanning of
verraad, ofschoon zelfs vrij aan het verraad, en hetzelve niet binnen den
tijd van acht dagen aan het hoogere gezag bekend maken,zal gestraft
worden met eene geldboete van Rijks. 25, of een burger arrest naar
den aard der zaak, en van ontzetting van het regt tot stemming voor
den tijd van twee jaren.
12. Wanneer een of meer burgers door middel van zamenrotting,
dadelijkheden of dreigementen, verhinderd zullen worden hunne
maatschappelijke regten uit te oefenen, zoo zal ieder der schuldigen
gestraft worden met eene geldboete van Rijks. 25, of een burger arrest
naar den aard der zaak, en met ontzegging van het regt tot stemming
voor den tijd van twee jaren.
1 3. Ieder ambtenaar of bekleeder van openbare bedieningen, die in
de teregtzittingen tot zijnen post behoorende, een valschheid begaan
zal hebben, hetzij door verandering van geschriften, hetzij door onder-
schrijving van valsche personen, hetzij door bij of tusschenschrijvingen
te doen op registers of openbare acten, nadat zij opgemaakt en gesloten
supplying them with the means necessary thereto, and those
who attempt to commit treason, shall be punished with a fine
of 500 Rix-dollars and shall be expelled from our community,
and on returning shall be declared outlawed.
10. And any person who previous to this date shall have
been guilty in terms of the above article shall, if he be an
official, be dismissed from his post, and if he be a private person,
he shall never obtain a post or fill any office in our community.
11. All those who are aware of a plot or of any treason,
although themselves not guilty of treason, and who do not
report the matter within eight days to the higher authority,
shall be punished with a fine of 25 Rix-dollars or with civil
arrest according to the nature of the case, and with disfran-
chisement for a period of two years.
12. If one or more burghers shall be prevented by a con-
spiracy, by actual deeds or by threats from exercising their
social rights, then every one of those who are guilty shall be
punished with a fine of 25 Rix-dollars or with civil arrest
according to the nature of the case, and with disfranchisement
for a period of two years.
13. Every official, or one holding a public office, who in the
sessions belonging to his office shall have committed fraud,
either by altering documents or by subscribing false names of
persons or by adding to or inserting anything into registers or
public deeds after they have been made up and closed, shall
1844] THIRTY-THREE ARTICLES 353
zijn, zal gestraft worden met Rijks. 300 boete en ontzetting van zijnen
post.
14. leder doctor, genees of heelmeester of soortgelijke ambtenaar,
die, om iemand te bevoordeelen, valsche getuigschriften geeft van
ziekten of ongemakken geschikt om van den openbaren dienst bevrijd
te worden, zal gestraft worden met eene geldboete van Rds. 150, of
gevangezitting naar den aard der zaak. leder doctor zal door den
Raad goedgekeurd worden en certificaten verleenen.
15. Geen Raadslid zal mogen pleiten dan voor zichzelven, en ook
geen raadgeven dan in de openbare zitting, en zoo ook geen scheidsman
zijn.
1 6. Elk persoon kan zijne eigene zaak bepleiten ; maar hij heeft
ook het regt iemand in zijn plaats te qualificeren om in zijne plaats
voor de Regtbank te fungeren.
17. Allen die schuldig zijn aan valsche getuigenis, zal dezelfde straf
of boete moeten ondergaan als de veroordeelden zouden moeten onder-
gaan of geleden hebben.
1 8. Alle wie iemand stooten of slagen heeft toegebragt, zal met
boete gestraft worden, naar den aard der zaak, van Rijks. 5 tot Rijks.
100, en alle kosten betalen, als hij te bed valt, ook zijn verzuimden
tijd, pijn en smarten ; en in geval van on ver mogen zal hij in arrest
worden geplaatst.
19. Schuldig aan wanbedrijf, van lastering en eerschennis aan
be punished with a fine of 300 Rix-dollars and dismissal from
his post.
14. Every doctor, physician, surgeon, or similar official,
who, in order to benefit any one, shall give false certificates of
diseases or ailments calculated to exempt from the public
service, shall be punished with a fine of 150 Rix-dollars, or
with imprisonment, according to the nature of the case. Every
doctor shall be approved of by the Raad and be entitled to
issue certificates.
15. No member of the Raad shall be allowed to plead
except for himself ; nor shall he give any advice except in
public session ; nor shall he act as umpire.
16. Every person shall be at liberty to plead his own cause ;
but he shall also have the right to instruct another to act in his
place before the Bench.
17. All those who are guilty of perjury shall suffer the same
punishment or pay the same fine as the persons convicted
would have had to suffer or pay.
18. All those who have pushed or struck another shall be
punished with a fine, according to the nature of the case, from
5 Rix-dollars to 100 Rix-dollars, and shall pay all costs if he
should be laid up in bed ; they shall further make good the
time lost, the pain and the sufferings of such man ; and in case
they do not possess the necessary means, they shall be im-
prisoned.
19. Any person guilty of crime in consequence of slander
23
354 SOUTH AFRICAN REPUBLIC [1844
iemand toegevoegd, hetzij in het beleedigen van privaten in tegen-
woordigheid van getuigen, die zal gestraft worden met een geldboete
van Rijks. 5 tot Rijks. 100, naar den aard der zaak, ten voordele van ‘s
lands kas. 1
20. Al wie schuldig is aan moord, vader-moord, kinder-moord en
vergiftiging, zal met den dood gestraft worden.
21. Al wie eenig goed dat hem niet toekomt arglistig wegneemt,
maakt zich schuldig aan dieverij, en in alle gevallen van dieverij zal de
Hollandsche Wet tot basis genomen worden.
22. Alle verbindtenissen van kwaaddoeners tegen personen en
hunne goederen, is een misdaad tegen openbare rust ; deze misdaad
bestaat, wanneer er eenige scheiding of beraming onder hun en hunne
hoofden plaats vindt, of wanneer er eene overeenkomst bestaat om den
buit te deelen wanneer zulks plaats grijpt ; en zoo deze misdaad van
geene andere vergezeld mogt wezen, zoo zullen de aanleggers daarvan
met dwang worden gestraft naar bevinding der Regters en naar den aard
der zaak.
23. Al diegenenen die na wettelijke oproeping van het hoogere
gezag, en zonder gegronde reden, weigerachtig zijn commandos of iets
daarop betrekking hebbende te doen, zullen voor de eerste maal gestraft
worden met eene boete van Rijks. 20 ; voor de tweede maal met Rijks.
30 ; en ten derde maal Rijks. 50, ten voordele van ‘s lands kas.
24. Een ieder die het regt schendt met brieven te openen zal in eene
or defamation of any one’s character, by insulting private
persons in the presence of witnesses, shall be fined from 5 to 100
Rix-dollars, according to the nature of the case, for the benefit
of the public treasury. 1
20. All those guilty of murder, patricide, infanticide, and
poisoning shall be punished with death.
21. All those who take away clandestinely goods not
belonging to them are guilty of theft, and in all cases of theft
the Dutch Law shall be taken as basis.
22. All alliances of evil-doers against persons and their
property constitute a crime against the public peace ; this
crime exists when any agreement or plot is made among them or
their chiefs, or when there is an agreement to divide the booty
when it shall be acquired ; and when this crime is not accom-
panied by any other, the instigators shall be punished according
to the finding of the Judges and according to the nature of the
case.
23. All those who, after being lawfully summoned by
a superior authority, and without just cause, refuse to go on
commando or to do anything connected therewith, shall be
punished for the first offence with a fine of 20 Rix-dollars, for
the second with 30 Rix-dollars and for the third with 50 Rix-
dollars, for the benefit of the public treasury.
24. Any one infringing the law by opening letters shall be
1 Repealed and re-enacted in a modified form in December 1871. Locale.
Wetten der Z.A.Rep. I. 455.
1844] THIRTY-THREE ARTICLES 355
boete vervallen van Rijks. 50 ; maar ingeval er eenige suspicie van
verraad mogt plaats vinden, zoo zullen zoodanige brieven na den eersten
Commandant, onder-Commandant of Veldcornet verzonden worden,
die net regt zal hebben dezelve te openen. In zulke gevallen, doch
daarin geen nadeel vindende voor de maatschappij, zal hij dezelve met
den meeste spoed onder het adres verzenden.
25. Elk burger dezer maatschappij zal verpligt zijn, wanneer hij
uit de eene wijk vertrekt, den Veldkornet daarvan kennis te geven, en
zich daar, waar hij zijn verblijf neemt, weder te melden binnen 14
dagen ; en ingeval van nalatigheid, zal hij in eene boete vervallen
van Rijks. 5, ten voordeele van ‘s lands kas.
26. Elk burger die, na vooraf gewaarschuwd te zijn, te na aan
iemands eigendom bouwt of aanleg maakt en die zoo handelt tegen
beter weten, zal geen aanspraak op zijn handwerk kunnen maken ; het
geschil kan door twee arbiters (de Commandant en Veldcornet) geschikt
worden. Maar als het geschil hooger loopt, zal het voor Landdrost
en Commissarissen van Landerijen worden gebracht, die hierover
kunnen beslissen.
27. Al wie een openbare schending van eerbaarheid begaat, oi
beleedigingen, of lastertaal tegen de vrouwelijke sexse begaan zal
hebben, waardoor nadeel of inbreuk op het karakter zulker personen
door ontstaan kunnen, zal gestraft worden met eene boete van Rds.
50 tot 100, naar de aard der zaak. 1
28. Geen persoon of personen zullen het regt hebben nabij eenige
fined 50 Rix-dollars ; but if there is any suspicion of treason
such letters shall be sent to the nearest Commandant, sub-
Commandant or Field-cornet, who shall have the right to
open the same. In such cases, when finding therein nothing
detrimental to the community, he shall send the same to the
correct address with the utmost speed.
25. Every burgher of this community, when he moves from
a ward, shall be bound to inform the Field-cornet thereof, and
where he takes up his residence he shall again give notice
thereof within 14 days ; and in case of negligence he shall
be fined 5 Rix-dollars for the benefit of the public treasury.
26. Any burgher who, after having been warned before-
hand, builds too near another’s property or erects any structure,
and who acts thus contrary to his better judgment, shall not be
entitled to claim the benefit of his handiwork ; the dispute
may be settled by two arbitrators (the Commandant and the
Field-cornet). But if the dispute is not settled it shall be
brought before the Landdrost and Commissioners of Lands, who
have authority to decide thereon.
27. All those who shall publicly slander the honour of any
female or who shall have employed slanderous or insulting
language whereby harm or the defamation of the character of
such person might be caused, shall be punished with a fine
of 50 to 100 Rix-dollars according to the nature of the case. 1
28. No person or persons shall have the right to go near the
1 This provision was repealed and re-enacted in a modified form in December
1871. Locale Wetten der Z.A. Rep. I. 455.
356 SOUTH AFRICAN REPUBLIC [1844
Naturellen hunne verblijfplaatsen te gaan om kinderen op eene on-
wettige wijze te ontnemen, zoodanige overtreders zullen gestraft worden
met eene boete van Rds. 500, of gevangenzitting voor zes maanden,
en de ontnomene kinderen aan hunne ouders teruggeven worden.
29. Dat geene der naturellen zal toegelaten worden nabij eenige
dorpsgronden, tot benadeeling der dorpelingen, hunne woningen te
nemen, dan met toestemming van de voile Raad.
30. Alle jaren zal eene nieuwe electie plaats hebben, ten einde leden
van den Volksraad te kiezen, en alle kieslijsten verzegeld en verzonden
worden.
31. In alle gevallen waarin deze wetten tekort mogten komen zal de
Hollandsche wet tot basis verstrekken, doch op eene gematigde stijl-
vorm en overeenkomstig van het costuum van Zuid Afrika en tot nut
en welvaart van de maatschappij.
32. ledere Veldcornet zal verpligt zijn alle onwilligers in zijn wijk
te bezorgen aan het kantoor van den Landdrost.
33. In geval van dienstheer en dienstboden zal ieder dienstheer het
regt hebben eene behoorlijke tucht onder dienstboden te houden.
Maar geen mishandeling, indien zulks geschied, zal de dienaar aan
wien de mishandeling geschiedt is, ontnomen worden en de dienstheer
gestraft worden naar den aard der zaak.
Uit last van den voile Raad,
A Is Voorzitter, J. D. VAN COLLER.
PIETER DIETRICKSEN, Lid en Secretaris.
POTCHEFSTROOM, den 9 April 1844.
Locale Wetten der Z.A. Rep. I. i.
abodes of natives with the object of taking away the children
illegally ; such offenders shall be punished with a fine of
500 Rix-dollars or with imprisonment for six months, and
shall return to their parents the children removed.
29. That no natives shall be permitted to take up their
residence near any town-lands to the detriment of the in-
habitants of the town, except with the consent of the full
Raad.
30. Every year there shall be a new election in order
to choose members of the Volksraad, and all voters’ lists
shall be sealed and despatched.
31. In all cases in which these laws may prove insufficient
the Dutch Law shall serve as basis, but only in a moderate
way and according to the customs of South Africa and for the
prosperity and welfare of the community.
32. Every Field-cornet shall be obliged to deliver all
undesirables [or, all persons unwilling to serve,] at the office of
the Landdrost.
33. In the matter of master and servants, every master
shall have the right to maintain discipline properly among
his servants. But there shall be no ill-treatment; if that
does take place, the servant ill-treated shall be taken away
and the master shall be punished according to the nature of
the case.
[9 Ap. 1844.]
1852] SAND RIVER CONVENTION 357
No. 175. VOLKSRAADSBESLUIT, 23 MEI 1849.
ART. 4. 1 ” Voorgelegd aan den Raad de 33 Artikelen welke zijn
vervaardigd te Potchefstroom, 9 April 1844, en eenparig door den Raad
goedgekeurd en ter kennisse van het publiek gebragt hebbende, is door
het publiek eenpariglijk goedgekeurd ; zoo heeft de Raad gelast dat
elk beambt persoon het stiptelijk zal moeten uitvoeren en de Land-
drosten zal verpligt zijn copijen aan ieder Veldcornet en Commandant
te zenden.” Locale Wetten der Z.A . Rep. I. 6.
No. 175. RESOLUTION OF THE VOLKSRAAD,
23 MAY 1849.
ART. 4. 1 The 33 Articles which were drawn up at Potchef-
stroom on the gth April 1844, on being submitted to the
Raad, were unanimously approved of by them, and being
brought to the knowledge of the public have been unanimously
sanctioned ; the Raad has therefore ordered that every official
shall strictly carry them out, and the Landdrosts will be held
to send copies to each Field-cornet and each Commandant.
No. 176. VOLKSRAAD RESOLUTION, JANUARY 1851.
ART. 67. The Hon. Raad has resolved to notify to all
and every person whoever he may be who may be found to
cause disturbances or to abet in creating or causing dissension
or disunion be it in whatever manner to the detriment of the
United Society of the Emigrants and not only he who abets
but he who hears such and does not notify the Landdrost or
the Hon. Raad or the Commandant-Generals shall be punished
with a fine ; he who causes or attempts to cause such shall
pay a fine of 150 rix-dollars for the first time and 500 rix-dollars
for the second time, and those who have known of it and
have not notified, a fine of 50 rix-dollars for the first time and
100 rix-dollars for the second time, and in case of subse-
quent repetitions (volgende rijse) the punishment shall be
doubled. Statute Law of the Transvaal, 1. 1.
No. 177. THE SAND RIVER CONVENTION OF 1852.
[This agreement was an indirect result of events on the eastern
frontier of the Cape Colony, where a war broke out in 1850 with various
native tribes under the general leadership of the Xosa chief, Sandile.
As the Governor needed all the available forces in the Colony, the astute
Basuto chief, Moshesh, conceived the plan of destroying the British
power in the Orange River Sovereignty. In that territory he caused a
severe defeat to be inflicted on a body of troops, and no assistance
coming from the Cape, the republican spirit among the burghers again
grew strong and the assistance of the Dutch community to the north of
the Vaal was enlisted. The Transvaalers proposed to form an alliance
1 Repealed by Procl. No. 34 of 1901.
358 SOUTH AFRICAN REPUBLIC [1852
with Moshesh and to proceed to help the disaffected burghers in the
Sovereignty to regain their independence. The agreement at the Sand
River was entered into in order to ensure their neutrality.]
MINUTES OF A MEETING held in the place [i.e. on the
farm] of Mr. P. A. VENTER, Sand River, on Friday,
the i6th day of January 1852, between Major
W. HOGGE and C. M. OWEN, Esq., Her Majesty’s
Assistant Commissioners for the settling and ad-
justing of the affairs of the eastern and north-eastern
boundaries of the Colony of the Cape of Good Hope,
on the one part ; and the following deputation
from the emigrant farmers residing north of the
Vaal River :
A. W. J. PRETORIUS, Commandant-General [and
others], on the other part.
The Assistant Commissioners guarantee in the fullest
manner, on the part of the British Government, to the emigrant
farmers beyond the Vaal River, the right to manage their
own affairs and to govern themselves according to their own
laws, without any interference on the part of the British
Government ; and that no encroachment shall be made by the
said Government on the territory beyond, to the north of the
Vaal River, with the further assurance that the warmest wish
of the British Government is to promote peace, free trade,
and friendly intercourse with the emigrant farmers now in-
habiting, or who hereafter may inhabit,, that country, it being
understood that this system of non-interference is binding
upon both parties.
Should any misunderstanding hereafter arise as to the true
meaning of the words ” The Vaal River,” this question, in so
far as regards the line from the source of that river over the
Draakenberg, shall be settled and adjusted by commissioners
chosen by both parties.
Her Majesty’s Assistant Commissioners hereby disclaim
all alliances whatever and with whomsoever of the coloured
nations to the north of the Vaal River.
It is agreed that no slavery is, or shall be, permitted or
practised in the country to the north of the Vaal River by the
emigrant farmers.
Mutual facilities and liberty shall be afforded to traders
and travellers on ‘both sides of the Vaal River ; it being under-
stood that every waggon containing ammunition and fire-
arms coming from the south side of the Vaal River shall pro-
duce a certificate signed by a British magistrate or other
functionary duly authorised to grant such, and which shall
state the quantities of such articles contained in said waggon,
to the nearest magistrate north of the Vaal River, who shall
1852] SAND RIVER CONVENTION 359
act in the case as the regulations of the emigrant farmers
direct. It is agreed that no objection shall be made by any
British authority against the emigrant Boers purchasing their
supplies of ammunition in any of the British Colonies and
Possessions of South Africa, it being mutually understood that
all trade in ammunition with the native tribes is prohibited
both by the British Government and the emigrant farmers
on both sides of the Vaal River.
It is agreed that, so far as possible, all criminals and other
guilty parties who may fly from justice either way across the
Vaal River shall be mutually delivered up, if such should be
required, and that the British courts, as well as those of the
emigrant farmers, shall be mutually open to each other for all
legitimate processes, and that summonses for witnesses sent
either way across the Vaal River shall be backed by the
magistrates on each side of the same respectively, to compel
the attendance of such witnesses when required.
It is agreed that certificates of marriage issued by the
proper authorities of the emigrant farmers shall be held valid
and sufficient to entitle children of such marriages to receive
portions accruing to them in any British Colony or Possession
in South Africa.
It is agreed that any and every person now in possession
of land and residing in British territory, shall have free right
and power to sell his said property and remove unmolested
across the Vaal River, and vice versa ; it being distinctly
understood that this arrangement does not comprehend
criminals or debtors without providing for the payment of
their just and lawful debts.
This done and signed at Sand River aforesaid, this lyth day
of January 1852.
(Signed) (Signed)
A. W. J. PRETORIUS, Commt,- P. G. WOLMARANS, Oudevling.
Gen. J. A. VAN ASWEGEN, V.C.
H. S. LOMBARD, Landdrost. F. J. J. BOTES.
W. F. JOUBERT, C.G. N. J. S. BASSON, V. -Cornet.
G. J. KRUGER, Commandant. J. P. FURSTENBERG, Veld-
W. I. HOGGE, Assist. Commis- cornet.
sioner. J. P. PRETORIUS.
C. MOST YN OWEN, ^4ss*s/. Com- J. H. GROBBELAAR.
misswner. J. M. LEHMAN.
J. N. GROBBELAAR, R.L. P. SCHUTTE.
P. E. SCHOLTZ. J. C. KLOPPERS.
In presence of
(Signed) JOHN BURNET, Clerk to the Civil Com-
missioner of Winburg.
(Signed) J. H. VISAGIE, Secretary.
Parl. Papers, S. Africa, C.O. (42), 1884, p. 92.
360 SOUTH AFRICAN REPUBLIC [1853
No. 178. VOLKSRAADSBESLUIT, RUSTENBURG, 10 AUG. 1853.
ART. 33. * ” Op verzoek van de Kerkraad om vrij te zijjn van alle
landsdiensten en daarmede gepaard gaande onkosten, besluit de Raad
dit verzoek toe te staan, maar alle diensten en daarmede gepaarde
onkosten voor de Kerk, zal de Eerw. Kerkraad zelve dragen. Dit
besluit is geldig zoo lang als de leden in de Kerkraad zitten, maar bij
aftreden staat dat lid weder onder landsdiensten. De Leeraar van zelf
is van alles uitgesloten, n.l. landsdiensten en daarmede gepaarde on-
kosten, en ook in Kerk van alles voorzien worde, en geassisteerd door de
Kerkraadsleden. ‘ ‘
No. 179. VOLKSRAADSBESLUIT, 19 SEPTEMBER 1853.
Art. 29.* “- De Ed. Volksraad is overgegaan tot het aannemen van
een titel voor dezen Staat, en heeft deze titel aangenomen :
” – DE ZUID-AFRIKAANSCHE REPUBLIEK.’
” En maakt bij deze aan het geheele publiek bekend, dat alle Staats-
stukken van nu af onder dien titel zullen moeten worden ingezonden
aan den Volksraad.”
Locale Wetten der Z.A. Rep. I. 23.
No. 178. RESOLUTION OF THE VOLKSRAAD,
RUSTENBURGH, 10 AUG. 1853.
ART. 33. x About the request of the Kerkraad to be exempt
from all national service and the expenses therewith involved,
the Raad decides to grant this request ; but all services of the
Church, with the expenses involved, shall be borne by the
Kerkraad. This decision holds good for as long as the members
sit in the Kerkraad ; but when any member vacates his seat
he again becomes liable to national service. The minister
himself is exempt from everything, viz. national service and
the accompanying expense. Also, in the Church he shall be
supplied with everything and be assisted by members of the
Kerkraad.
No. 179. RESOLUTION OF THE VOLKSRAAD,
19 SEPT. 1853.
ART. 29.* The Volksraad proceeded to adopt a title for this
State, and has adopted this title :
” THE SOUTH AFRICAN REPUBLIC.”
And it hereby notifies the whole public that henceforth
all State papers will have to be sent in under that title to the
Volksraad.
1 Repealed by Procl. No. 34 of 1901.
1855] ADMISSION OF ALIENS 361
<
No. 180. VOLKSRAADSBESLUIT, 21 NOVEMBER 1853.
ART. 115. ” De Ed. Volksraad is overgegaan tot het aannemen van
een naam voor dezen Staat, en heeft als naam aangenomen de volgende :
” – DE ZUID-AFRIKAANSCHE REPUBLIEK BENOORDEN DE
VAALRIVIER.’
” En maakt aan het geheele publiek bekend dat alle Staatsstukken,
enz., onder dezen naam of titel aan den of bij den Ed. Volksraad ingezon-
den moeten worden. Art. 29 van ‘t besluit van September 1.1. is aldus
vervallen en vernietigd verklaard.”
Locale Wetten der Z.A. Rep. I. 23.
No. 181. VOLKSRAADSBESLUIT, 18 JUNIJ 1855.
ART. I59. 1 ‘-‘ Een voorstel gedaan aan den WelEd. Volksraad door
de Ed. heer D. H. Botha, Landdrost. Dat van heden af alle vreem-
delingen onverschillig van welke Europeesche natie het ook zijn mogt,
vrijheid gegeven zal worden, om in dit land te komen wonen en gelijke
regten zullen genieten onder voorwaarde dat hij echter vooraf zijn
burgerregt in dit land zal moeten koopen.
” Hierop heeft dej WelEd. Volksraad besloten ^en het^ volgende
vastgesteld hetwelk van heden af alle vreemdelingen A welke in dit land
komen wonen en welke niet in Afrika geboren zijn, niet als burgers
No. 180. RESOLUTION OF THE VOLKSRAAD,
21 Nov. 1853.
ART. 115. The Volksraad proceeded to adopt a name for
this State, and has adopted the following :
” THE SOUTH AFRICAN REPUBLIC TO THE NORTH OF
THE VAAL RIVER.”
And it notifies the whole public that all State papers, etc.
will have to be sent in or addressed to the Volksraad under
this name or title. Art. 29 of the resolution of last September
is therefore declared lapsed and void.
No. 181. RESOLUTION OF THE VOLKSRAAD,
18 JUNE 1855.
ART. 159. x A proposal made to the Volksraad by Mr. D.
H. Botha, Landdrost : That henceforth all strangers, no
matter to what European nation they may belong, shall be
allowed to come and stay in this country, and that they shall
enjoy equal rights, on condition, however, that they shall
first purchase their rights of burghership in this country.
Hereupon the Volksraad has decided and affirmed as
follows : That henceforth no strangers, who come to reside
in this country and who were not born in Africa, shall enjoy
1 Repealed by Procl. No. 34 of 1901.
362 SOUTH AFRICAN REPUBLIC [1855
dezer Republiek stemgeregtigd of geregtigd tot eenig ambt den Staat
betreffende zullen erkend worden of gerechtigd zijn zonder vooraf
hun burgerregt gekocht te hebben, welk burgerregt gekocht zal
moeten worden voor de som van twee honderd Kaapsche Rijksdaalders
(zegge Rds. 200) en zal iemand die geen erkende burger is ook geen regt
hebben van vaste goederen in eigendom te bezitten.
” Wanneer een manspersoon als burger van deze Republiek erkend
is, zal zijne vrouw daardoor ook als burgeres van deze Republiek erkend
worden en blijven.
-‘ Alle kleurlingen zijn hiervan uitgesloten dewelke nimmer het
burgerregt gegeven of toegekend mag worden (volgens de Grondwet).
Om het burgerregt te bekomen zal elk vreemdeling als hierboven
genoemd is, voorzien moeten zijn van een paspoort van de bevoegde
Regering onder welke zij geboren zijn of gewoond hebben om te be-
wijzen dat zij van een goed gedrag zijn.”
Locale Wetten der Z.A. Rep. I. 31.
the franchise as a burgher of the Republic or be recognised as
entitled to fill any public office in the State, without having
first purchased their rights of burghership, which rights of
burghership shall have to be bought for two hundred Cape
Rix- dollars (Rds. 200). And no person who is not recognised
as a burgher shall have the right to possess immovable property.
When a male person has been recognised as a burgher
of this Republic, his wife shall thereby also be recognised and
remain a burgheress of this Republic.
All coloured people are excluded from this provision, and
(in accordance with the Grondwet) they may never be given
or granted rights of burghership. In order to acquire burgher
rights, every such stranger as is mentioned above will have
to be provided with a passport from the competent Govern-
ment under which he was born or has lived, to show that he
is of good behaviour.
No. 182. THE GRONDWET OF THE SOUTH AFRICAN
REPUBLIC.
[Besides the Volksraad at Pietermaritzburg and the Adjunct Raad
at Potchefstroom, already noticed, there arose another Raad to the
north of the Vaal. This body held its sessions at Ohrigstad, and the
first entry in its minute-book bears the date July 1845, a few months
later than the royal Letters Patent which constituted Natal a separate
Colony. (The last entry in the books of the Volksraad of Natal is
dated i6th July 1845.) I n the minute-book of the Ohrigstad Raad,
which ends with the /th May 1849, there is no reference to the Adjunct
Raad at Potchefstroom, so that we must conclude that from the estab-
lishment of the Raad there was in fact a small republic at Ohrigstad.
But though separate parties selected different spots to settle in and
established governing bodies of their own, racial affinity and threatening
dangers from outside moved the emigrants to seek a common meeting-
ground. On 23rd May 1849 a meeting was held by six members of the
Ohrigstad Raad and fourteen delegates from other parts of the trans-
1858] THE GRONDWET 363
Vaal territory, when they arrived at the decision to form ” a Common
Union of the whole Community on this side of the Vaal River.” From
that time there were regular sessions of the Volksraad, whose volume of
Resolutions covers the period from May 1849 till nth March 1856.
Of those a few are given above. As the Resolution of 23rd May 1849,
printed above, indicates, the people of the country and the newly
established legislature adopted the Thirty -Three Articles of 1844.
That the Grondwet was not established until 1858 was due to the rival
ambitions of individuals bidding for power and popularity, intensified
by ecclesiastical discord. Rivalry and discord were the natural off-
spring of a form of government necessarily weak at its inception, and of
that abnormally developed individualism which was the most striking
characteristic of the class of people who had furnished forth the emi-
grant farmer. Vide also No. 188, Note.]
GRONDWET VAN DE ZUID-AFRIKAANSCHE REPUBLIEK. 1
[Februari 1858.]
ALGEMEENE BEPALINGEN.
ART. i. Deze Staat zal den naam dragen van de Zuid-Afrikaansche
Republiek.
2. De Regeringsvorm van dezen Staat zal zijn die eener Repubh’ek.
3. Zij wil zich bij de beschaafde wereld als een onafhankelijk en
vrij volk erkend en geeerbiedigd zien.
4. Het volk zoekt geen uitbreiding van grondgebied, en wil die
alleen volgens regtvaardige beginsels ; wanneer het beJang der Re-
publiek die uitbreiding raadzaam maakt.
5. Het volk wil zijn grondgebied, gelegen in Zuid-Afrika onge-
schonden bezitten en in ‘t bezit houden, met iribegvip njner regten en
aanspraken op het grondgebied gelegen ten Oosten en Zuid-Oosten dezev
THE GRONDWET OF THE SOUTH AFRICAN
REPUBLIC. 1 [Feb. 1858.]
GENERAL REGULATIONS.
ART. i. This State shall bear the name of the South African
Republic.
2. The form of government of this State shall be that of
a Republic.
3. It desires to be acknowledged and respected by the
civilised world as an independent and free people.
4. The people seek no extension of territory, and desire
it only according to principles of justice, when the interests
of the Republic render it advisable.
5. The people desire to possess and retain their territory
unimpaired inclusive of their rights and claims to the territory
towards the East and South-East of this Republic, so far as those
1 The more important differences between the articles of this Grondwet
and those of the 1889 Grondwet are indicated in footnotes on the following
pages. Some articles of the later law are given in toto below, p. 485, but
several of the more important changes embodied in the 1889 Law were effected
by Law No. 3, 1881, which, to avoid repetition, is not printed in this volume.
364 SOUTH AFRICAN REPUBLIC [1858
Republiek, zoover als die regten en aanspraken strekken ; even zoo ten
Westen en Zuid-Westen. En het Gouvernement van de Zuid-Afrikaansche
Republiek zal verpligt wezen, zoo spoedig mogelijk werkzaam te zijn, om
bij Proclamatie de lijnen en grenzen vast te stellen en bekend te waken. l
6. Zijn grondgebied staat voor iederen vreemdeling open, die zich
aan de wetten dezer Republiek onderwerpt. Allen, die zich op het
grondgebied dezer Republiek bevinden, hebben gelijke aanspraak op
bescherming van personen en goederen.
7. De in dit grondgebied gelegene gronden of plaatsen, die heden
nog onuitgegeven zijn, worden verklaard eigendommen van den Staat
te wezen ; echter voor het publiek als te voren verkrijgbaar. Geen plaats
zal tot dat einde grooter gei’nspecteerd worden dan 3000 morgen. En
niemand zal voor aanvraag en verkrijging van gronden geregtigd wezen,
voor dat hij den ouderdom van zestienjaren bereikt heeft. 1
^ 8. Het volk eischt de meest mogelijke maatschappelijke vrijheid
en verwacht die van het behoud van zijn godsdienstig geloof ; van de
nakoming zijner verbindtenissen ; van zijne ondergeschiktheid aan
wet, orde en regt, en de handhaving van dezelve. Het volk laat de
uitbreiding van het Evangelium toe onder de heidenen, onder bepaalde
voorzorgen tegen gebrek of misleiding.
9. Het volk wil geene gelijkstelling van gekleurden met blanke
ingezetenen toestaan, noch in Kerk noch in Staat. l
10. Het volk wil geen slavenhandel, noch slavernij in deze Republiek
dulden.
11. Het volk behoudt uitsluitend aan zich de bescherming en
rights and claims extend, and so in like manner towards the West
and South-West. And the Government of the South African
Republic shall be obliged as soon as possible to take steps for
fixing and publishing by proclamation the limits and boundaries. 1
6. Its territory is open to every stranger who submits to
the laws of this Republic. All persons who happen to be
within the territory of this Republic have equal claim to
protection of person and property.
7. The lands or farms situated within this territory which
have not yet been given out are declared to be the property
of the State, but are none the less obtainable as heretofore by
the public. No farm inspected for that purpose shall be larger
than 3000 morgen. And no one shall be entitled to apply for
or to obtain lands until he has reached the age of sixteen. 1
8. The people demand as much social freedom as possible,
and expect to obtain it by retaining their religious faith, by
fulfilling their obligations, by submitting to law, order and
justice, and by upholding these. The people permit the
spread of the Gospel among the heathen subject to definite
safeguards against fault and deception.
9. The people desire to permit no equality between coloured
people and the white inhabitants, either in Church or State. 1
10. The people desire to put up with no trading in slaves
nor with slavery in this Republic.
11. The people reserve to themselves alone the protection
1 The italicised words were omitted from the 1889 Grondwet.
1858! THE GRONDWET 365
verdediging van de onafhankelijkheid en onschendbaarheid van Kerk
en l Staat, overeenkomstig de wetten.
12. Het volk geeft de wetgeving in handen van eenen Volksraad,
het hoogste gezag des lands, bestaande uit vertegenwoordigers of last-
hebbers des volks, door de stemgeregtigde burgers gekozen ; doch
alleen voor zoo verre, dat aan het volk drie maanden tijds zal gelaten
zijn, om over eene voorgestelde wet zijn oordeel aan den Volksraad
desverkiezende te kunnen inleveren ; behalve de wetten die geen uitstel
kunnenlijden.
13. Het volk draagt de voorstelling en uitvoering der wetten op aan
eenen Uitvoerenden Raad, 2 welke tevens de voordragt van alle lands-
ambtenaren aan den Volksraad doet.
14. Het volk vertrouwt de handhaving der orde aan de Krijgsmagt
toe.
15. Het volk stelt de regterlijke magt in handen van Landdrosten,
en gezworenen, en laat die aan him oordeel en geweten over, om volgens
landswetten te handelen.
1 6. Het volk zal jaarlijks van den Volksraad eene begrootingswet
van algemeene uitgaven voor Kerk en 3 Staat ontvangen en daaruit
vernemen hoeveel ieders belasting zal beloopen.
17. Potchefstroom, gelegen aan de Mooirivier, zal de hoofdplaats
der Republiek en Pretoria de zetel van het Gouvernement zijn.
and defence of the independence and inviolability of Church
and 1 State, according to the laws.
12. The people delegate the function of legislation to a
Volksraad, the highest authority in the country, consisting
of representatives or plenipotentiaries of the people, elected
by burghers possessing the franchise, but it is provided that a
period of three months be given to the people to enable them
to convey to the Volksraad their views on any proposed law,
should they so desire, except in the case of laws which can
brook no delay.
13. The people delegate the proposal and the administra-
tion of the laws to an Executive Council, 2 which shall also
recommend all public officials for appointment by the Volks-
raad.
14. The people entrust the maintenance of order to the
military power.
15. The people vest the judicial power in Landdrosts and
Jurors, and leave it to their judgment and conscience to act
according to the laws of the country.
16. The people shall annually receive from the Volksraad
an estimate of general expenses for Church and 3 State, and
shall learn therein to how much each one’s taxes shall amount.
17. Potchefstroom, situated on the Mooi River, shall be
the chief town of the Republic and Pretoria shall be the seat
of Government.
1 The italicised words were omitted from the 1889 Grondwet.
2 The 1889 Grondwet substituted “‘State President” for “Executive
Council.”
3 The italicised words were omitted from the 1889 Grondwet.
366 SOUTH AFRICAN REPUBLIC [1858
1 8. Alle diensten ten behoeve van het algemeen gevorderd, worden
door het algemeen beloond.
19. Vrijheid van drukpers is toegestaan, mits de drukker en uitgever
verantwoordelijk blijven voor al de stukken die eerschennis, beleediging
of aanranding van iemands karakter bevatten.
OVER DE BESCHERMING EN VERDEDIGING VAN KERK EN STAAT.
20.* Het volk wil zijne Nederduitsch Hervormde Godsdienstleer,
zooals deze in de jaren 1618 en 1619 door de Synode te Dordrecht is
vastgesteld, in hare grondbeginselen blijven behouden, en de Neder-
duitsch-Hervormde Kerk zal de Kerk van den Staat zijn.
21.* Het verkiest in zijn midden geen Roomsche Kerken toe te
laten, en ook geene andere Protestantsche, dan de zoodanige waarin
dezelfde hoofdsom van christelijk geloof geleerd wordt, als is opgegeven
in den Heidelbergschen Catechismus.
22. Het zal geen andere vertegenwoordigers in den Volksraad
aanstellen, dan degenen die lidmaten der Nederduitsch-Hervormde l
gemeenten zijn.
23.* Het volk erkent geen ander kerkelijk gezag dan dat, wat door
de kerkeraden zijner Nederduitsch-Hervormde gemeenten is of wordt
goedgekeurd, aangenomen en vastgesteld, volgens art. 20.
1 8. All services required for the public shall be rewarded
by the public.
19. Liberty of the press is granted, provided that the
printer and the publisher remain responsible for all articles
containing libel, insult, or defamation of any person’s character.
ABOUT THE PROTECTION AND DEFENCE OF CHURCH
AND STATE.
20.* The people desire to retain the fundamental teachings
of their Dutch Reformed Religion as laid down in the years
1618 and 1619 by the Synod of Dordrecht, and the Dutch
Reformed Church shall be the State Church.
21.* They prefer to allow no Roman Catholic Churches
amongst them, nor any other Protestant Churches than those
in which the same tenets of the Christian belief are taught,
as contained in the Heidelberg Catechism.
22. They shall appoint no other representatives to the
Volksraad than those who are members of the Dutch Reformed 1
congregations.
23.* The people acknowledge no other ecclesiastical
authority than that which has already or may hereafter be
approved, adopted and laid down by the kerkraads (con-
sistories) of their Dutch Reformed congregations.
* These and subsequent clauses marked with an asterisk were not taken
up in the 1889 Grondwet. They were either repealed between 1858 and 1889
or their provisions were separately embodied in resolutions of the Volksraad
and other special enactments.
1 Membership of some Protestant Church was demanded by the 1889
Grondwet.
1858] THE GRONDWET 367
24. Het volk verlangt den opbouw, bloei en de welvaart van Kerk
en l Staat, en uit dien hoofde voorziening in de behoeften van Neder-
duitsch Hervormde Predikanten en 1 Schoolonderwijzers.
25. Zoo ook, dat in tijd van vrede voorzorgende maatregelen
genomen worden, om een oorlog te kunnen voeren of te wederstaan.
26. Ingeval van vijandelijken inval van buiten, zal een ieder zonder
onderscheid gehouden zijn om met de uitvaardiging der oorlogswet
zijnen bij stand daartoe te verleenen.
27. Geen tractaat of bondgenootschap met buitenlandsche mogend-
heden of volkeren mag aangeboden, aangenomen of gesloten worden,
dan nadat de Volksraad door den President en de Leden van den
Uitvoerenden Raad is opgeroepen, om daarover zijn gevoelen kenbaar
te maken, zullende het voorstel volgens net oordeel der leden van den
Volksraad goedgekeurd en vastgesteld of afgekeurd worden.
28. Bij voor den Staat dreigend gevaar of in oorlogstijd zal de
beoordeeling over het al of niet raadzame van zoodanig tractaat of
bondgenootschap, aan den Commandant-Generaal, met overleg van den
Krijgsraad, overgelaten worden, indien de commando’s in het veld
zijn, en er geen tijd is om den Uitvoerenden Raad te raadplegen.
OVER DEN VOLKSRAAD, HEX HOOGSTE GEZAG, OF DE
WETGEVENDE MAGT.
29. De Volksraad zal het hoogste gezag des lands zijn, en de Wet-
gevende Magt.
24. The people desire the development, prosperity and
welfare of Church and x State, and with this view to provide
for the wants of the Dutch Reformed Ministers and * Teachers.
25. In like manner provision shall be made in time of
peace for carrying on or resisting war.
26. In the event of hostile invasion every person without
distinction shall be obliged on the proclamation of the War
Ordinance to render assistance therein.
27. No treaty or alliance with foreign powers or peoples
shall be proposed, accepted or concluded, except after the
Volksraad has been called together by the President and the
members of the Executive Council, in order that it may express
its views thereon, so that the proposal shall be approved and
confirmed, or it shall be rejected, according to the decision of
the Volksraad.
28. In the event of threatening danger to the State or in
time of war the decision as to whether such treaty or alliance
is advisable shall be left to the Commandant- General in con-
sultation with the Council of War in case the commandos are
in the field and if there is no time to consult the Executive
Council.
ABOUT THE VOLKSRAAD, THE SUPREME AUTHORITY OR
LEGISLATIVE POWER.
29. The Volksraad shall be the supreme authority and the
legislative power of the country.
1 The italicised words were omitted from the 1889 Grondwet.
368 SOUTH AFRICAN REPUBLIC [1858
30. Als vertegenwoordigers des volks, zijn zij geen Lands -ambte-
naren.
31. De Volksraad zal ten minste uit 12 leden bestaan, deze moeten
de volgende vereischten bezitten : zij moeten tusschen de 30 en 60
jaren oud zijn, 3 jaren l stemgeregtigde burgers, lidmaten van de Neder-
duitsch Hervormde gemeenten * zijn ; in de Republiek wonen, en vaste
goederen in het grondgebied dezer Republiek bezitten. Geen pcrsonen
van een openlijk slecht gedrag of die een onteerend vonnis ten hunnen
laste gehad hebben, zullen verkiesbaar zijn ; zij mogen elkander niet
bestaan in de betrekking van vader of zoon, heele of halve breeders, of
eigen oom en neef. Geen gekleurden, noch bastaarden zullen toegelaten
worden in onze vergaderingen. 3 Een ieder is gerechtigd, wanneer
hij daarvan het bewijs kan leveren, het aan den President van den
Uitv. Raad in te zenden, voor dat zoodanig lid zitting neemt. Ingeval
het bewijs voldoende overtuigend is zal de President van den Uitv.
Raad, voor de opening van de zitting, hetzelve aan den Voorzitter van
den Volksraad ter hand stellen, en op de verwijdering van het betrokken
lid aandringen.
32. De leden van den Volksraad worden door de meerderheid van
stemmen door het volk gekozen. Ieder burger die den ouderdom van
21 jaren en daarboven bereikt heeft, zal stemgeregtigd burger zijn,
30. As representatives of the people they [the members of
the Volksraad] are not public officials.
31. The Volksraad shall consist of at least twelve members,
who must possess the following qualifications : They must be
between 30 and 60 years of age ; burgh eis who shall have
possessed the franchise for 3 years ; x members of the Dutch
Reformed Congregations ; 2 residents in the Republic, possessing
immovable property in the territory of this Republic. No
person of an openly bad character, or who has had a dishonour-
ing sentence passed against him, shall be eligible ; the members
shall not stand to each other in the relationship of father or
son, or own or half-brothers, or uncle or nephew by blood.
No coloured persons or half-castes shall be admitted to our
meetings. 3 Any person is entitled, when he has proof thereof,
to transmit it [his reason for objecting to a member ?] to the
President of the Executive Council before such member takes
his seat. If the proof is sufficiently convincing, the President
of the Executive Council shall, before the commencement of
the session, submit it to the Chairman of the Volksraad and
shall insist on the dismissal of the member concerned.
32. The members of the Volksraad shall be chosen by a
majority of the votes of the people. Every burgher, who has
reached the age of 21 years or more, shall possess the franchise,
1 The 1889 Grondwet demanded 15 consecutive years for those not born
in the Republic.
8 The italicised words were omitted from the 1889 Grondwet.
8 These provisions were modified by resolution of the Volksraad, dated
ii June 1873, when the number of members was fixed at 28. By the
1889 Grondwet military officers and other salaried officials were also
excluded.
1858] THE GRONDWET 36$
mits lidmaat 1 der Nederduitsch Hervormde Kerk zijnde. De Volks-
raadsleden worden verkozen voor den tijd van twee jaren. a
33. De verkiezing der leden voor den Volksraad zal geheel vrij
zijn : en uit ieder der districten zal een gelijk aantal leden verkozen
worden ; de kiezers van het ene district, kunnen ook hunne stem
uitbrengen op een persoon in een ander district wonende.
34. Ieder stemgeregtigd burger staat het vrij , om indien hij beschuldi-
gingen wegens ambts-overtredingen of ambts-misdaden, begaan door
den President of een der leden van den Uitvoerenden Raad, meent te
moeten inbrengen, die beschuldigingen aan den Voorzitter van den
Volksraad in te leveren, onder het adres van : -‘ Aan den Wei-Ed,
heer Voorzitter van den Volksraad,” welke daarmede naar bevinding
van zaken zal handelen.
35. De verkiezing van leden voor den Volksraad zal in de maand
Maart 3 plaats hebben. Uit elk der districten zullen zes 3 leden bij
meerderheid van stemmen gekozen worden, om als volksvertegen-
woordigers zitting te nemen. De Veldcornetten zullen in tijds zorg
dragen dat de kieslijst aan de Landdrosten, en deze weder zorg dragen
dat die kieslijsten onmiddelijk aan den Uitv. Raad worden ingezonden.
Op het einde van het eerste jaar zal de helft der leden bij loting aftreden ;
provided he be a member l of the Dutch Reformed Church.
The members of the Volksraad shall be chosen for the period
of two years. 2
33. The election of members of the Volksraad shall be
entirely free, and out of each district an equal number of
members shall be chosen ; the electors of one district may
also record their votes for a person residing in another district.
34. Every burgher possessing the franchise shall be en-
titled, if he should consider it his duty to bring a charge con-
cerning offical transgressions or misdeeds committed by the
President or one of the members of the Executive Council, to
deliver those charges to the Chairman of the Volksraad under
the following address: ” To the Chairman of the Volksraad,”
which Chairman shall deal with the matter according to cir-
cumstances.
35. The election of members of the Volksraad shall take
place in the month of March. 3 Out of each of the districts
six 3 members shall be chosen by majority of votes to take
session as representatives of the people. The Field-cornets
shall see to it that lists of voters be sent to the Landdrosts in
time, and they again shall see to it that those lists be sent at
once to the Executive Council. At the end of the first year
half the members shall retire by lot, the other half at the end
1 This provision regarding membership of a particular church was abolished
by resolution of the Volksraad, dated 20 Sep. 1858. Locale Wetten der Z.A.
Rep. I. 103.
2 Altered to four years by resolution on 1 1 June 1873. Ibid. I. 525.
3 Altered by resolution on n June 1873, so that the elections could take
place in January and February, and each district could elect 3 members and
the towns of Potchefstroom, Rustenburg, and Lijdenburg one member each.
Ibid. I. 525. Again altered in 1886, document No. ait.
24
370 SOUTH AFRICAN REPUBLIC [1658
de andere helft op het einde van het tweede jaar, en zoo voort. Uit de
districten wier leden uitvallen zullen nieuwe Volksraadsleden gekozen
worden. De aftredende leden zijn herkiesbaar.
36. De Uitvoerende Raad zal verpligt zijn zorg te dragen dat de
Volksraad van een bekwaam secretaris voorzien worde tijdens deszelfs
zitting.
r-i<> 37. De verkozenen tot leden van den Volksraad zullen, indien zij
verontschuldigingen tegen de op hen uitgebragte keuze meenen te
moeten maken, die verontschuldigingen, tegen de op hen uitgebragte
keuze, dadelijk, na de ontvangene aanschrijving, met de eerste post
verzenden aan den Uitv. Raad. Hij die daaraan niet voldoet, of zonder
voldoende redenen voor de verkiezing bedankt, zal in eene boete van
Rds. 25 vervallen. Indien deze kennisgeving niet met de eerste post
geschiedt na de aanschrijving, dan zal de boete bedragen Rds. 50.
Blijft een lid van den Volksraad zonder bedanken weg, en voldoet hij
niet aan de oproeping, dan wordt hij beboet met Rds. 75. l
38. De redenen van verschooning voor het niet verschijnen van een
lid van den Volksraad, zijn :
1. Ongesteldheid en lichaamsgebreken, te bewijzen door het
verkozene of opgeroepen lid, met eene onderteekende
verklaring van den Landdrost, Commandant of Veld-
cornet zijner afdeeling, en
2. Zoodanige onvoorziene omstandigheden, die werkelijk be- .
of the second year, and so on. For the districts of which the
members retire new members shall be elected. The retiring
members shall be re-eligible.
36. It shall be the duty of the Executive Council to see to it
that the Volksraad be provided with a competent secretary
during its sessions.
37. The persons elected as members of the Volksraad shall,
if they deem it desirable to be excused from accepting their
election, immediately on receiving notice of such election, send
their requests to be excused by the first post to the Executive
Council. He who does not comply herewith or declines with-
out sufficient cause to accept his election shall be liable to a
fine of 25 Rix-dollars. If the notice containing the request
mentioned above be not sent by the first post after the
notice of election, then the fine shall be 50 Rix-dollars. If a
member of the Volksraad remains away without having re-
signed and does not respond when called upon to attend, he
shall be fined with 75 Rix-dollars. 1
38. The grounds on which a member of the Volksraad may
be excused from attending are :
1. Sickness and bodily ailments, to be proved by the
elected and summoned member by means of a
declaration signed by the Landdrost, Command-
ant, or Field-cornet of his division, and
2. Such unforeseen circumstances, which must be
1 The 1889 Grondwet laid it down that if a member absented himself
without resigning he was liable to a fine of 75 rix-dollars.
1858] THE GRONDWET 371
wezen zijnde, het hem onmogelijk maken aanwezig te
zijn of te blijven.
39. Alle bedenkingen, verontschuldigingen en kennisgevingen,
bedoeld in art. 37 en 38, zullen aan den President van den Uitv. Raad
ingezonden en door den Uitv. Raad beoordeeld worden. In de, dien
ten gevolge, onvervulde plaatsen zal zoo spoedig mogelijk voorzien
worden, volgens art. 35.
40. De leden van den Volksraad zullen voor het aanvaarden hunner
betrekking beeedigd worden door de Volksraadsleden, die op den dag
der zitting tegenwoordig zijn ; hun eed zal zijn van den volgenden
inhoud :
” Als verkozen tot lid van den Volksraad dezer Republiek,
verklaar, beloof en zweer ik plegtig dat ik aan niemand
eenige gift gedaan of beloofd heb om tot die betrekking
te geraken ; dat ik in die betrekking getrouw zal zijn
aan het volk ; mij zal gedragen overeenkomstig de
Grondwet dezer Republiek, naar mijn beste kennis
en geweten, en niets anders te beoogen dan de bevordering
van het geluk en welzijn der ingezetenen in het algemeen.”
41. De aanwezige leden van den Volksraad kiezen hunnen Voor-
zitter na de opening der zitting, en voor den tijd van hun zittingsjaar.
42. Al hetgeen waarover beraadslaagd wordt zal door van het
aantal stemmen l beslist worden.
actually proved, as shall render it impossible for
him to be or remain present.
39. All representations, excuses and notices mentioned in
arts. 37 and 38 shall be sent to the President of the Executive
Council and shall be decided on by the Executive Council.
The seats that become vacant in this manner shall be filled as
soon as possible according to art. 35.
40. The members of the Volksraad shall, before entering
on the duties of their office, be sworn by the members present
on the day the former take their seats ; their oath shall be of
the following tenor :
” As elected member of the Volksraad of this Republic
I declare, promise and swear solemnly that I
have given or promised no gift to any one in order
to obtain that position ; that I will be faithful
to the people in the discharge of my office, will
conduct myself in accordance with the Grondwet
of this Republic to the best of my knowledge and
according to the dictates of my conscience, and
will aim at nothing else than to promote the
happiness and welfare of the inhabitants in
general.”
41. The members of the Volksraad present shall elect their
Chairman after the opening of the session, and for the period
of one year.
42. Any matter discussed shall be decided by three-fourths
of the votes recorded. 1
1 The 1889 Grondwet demanded ” a decided majority.”
372 SOUTH AFRICAN REPUBLIC [1858
43. De Volksraad gaat niet uiteen voordat alle zaken die behandeld
moeten worden afgehandeld zijn, en de zitting door den Voorzitter van
den Raad geslotenis. Een Volksraadslid kan vrijheid ontvangen de
vergadering te verlaten indien hij verkeert in het geval van No. 2,
art. 38.
44. De leden van den Volksraad zullen, voor zoolang zij in die
betrekking zijn, in persoon vrij wezen van ‘s lands dienst en vrij van
kosten l die de krijgsmagt van hen zoude kunnen afvorderen ; zij
zullen vergoeding van nun verblijf genieten gedurende de oponthoud
hunner bezigheden.
45. De vergaderingen worden met opene deuren gehouden, tenzij
dat de Voorzitter of de President van den Uitv. Raad * het noodig
oordeelt dat de beraadslagingen over het een of ander voorstel in het
geheim gehouden worden. De aanwezige personen, die geen zitting in
den Volksraad hebben, mogen niet spreken, dan wanneer zij op eene
vraag van den Voorzitter hebben te antwoorden.
46.* De volgorde der werkzaamheden is deze :
(a) De Voorzitter van den Volksraad opent de zitting.
(6) De Voorzitter schrijft den President van den Uitvoerenden
Raad aan, om verslag te doen volgens art. 74.
(c) De Volksraad benoemt eene commissie, bestaande uit drie
zijner leden, om over dat verslag een schriftelijk rapport
uit te brengen.
43. The Volksraad shall not adjourn before all matters to
be dealt with have been disposed of and the sitting closed by
the Chairman of the Raad. A member of the Volksraad can
receive permission to leave the assembly if he finds himself in
the position described by section 2 of art. 38.
44. The members of the Volksraad shall, during their term
of office, be exempt from personal military service as also from
the charges x which the military power might demand of
them ; and they shall receive payment for their attendance
during the interruption of their business.
45. The sittings shall be held with open doors, unless the
Chairman or the President of the Executive Council 2 shall
deem it expedient that the deliberations on any proposal take
place in secret. No person present, who is not a member of
the Volksraad, may speak, except when he has to reply to a
question from the Chairman.
46.* The order of business will be as follows :
(a) The Chairman of the Volksraad opens the sitting.
(b) The Chairman addresses himself in writing to the
President of the Executive Council to request
him to make his statement according to art. 74.
(c) The Volksraad appoints a commission of three of its
members to report in writing on the said state-
ment.
1 The 1 889 Grondwet made them liable to pay these charges.
3 The 1 889 Grondwet left it to the Volksraad to decide when they should
hold a secret session.
1858] THE GRONDWET 373
(d) De President van den Uitv. Raad stelt aan den Voorzitter
van den Volksraad zijne voorstellen van wet ter hand, en
de Volksraad bepaalt de volgorde waarin deze behandeld
zullen worden.
(e) De commissie bij art. (c) vermeld, doet rapport en de Volksraad
besluit ontrent het antwoord aan den President van den
Uitvoerenden Raad te geven.
(/) De Volksraad beantwoordt het verslag van den President
van den Uitvoerenden Raad.
(g) De beraadslagingen over de ingezondene voorstellen van
wet, en tevens over het tijdstip waarop de wet zal in-
gevoerd worden, in overeenkomst met art. 12.
(h) Benoeming van ambtenaren op voordragt van den President
van den Uitvoerenden Raad.
(i) Overige werkzaamheden.
(j) Sluiting der zitting, volgens art. 43.
47. De Voorzitter zal al de voorstellen van wet, bij de Volksraad
ingekomen, in ‘ beraadslaging brengen, of deze 3 maanden voor de
indiening aan den Volksraad aan het algemeen bekend zijn gemaakt,
of dat dezelve tijdens de zitting van den Volksraad zijn ingekomen.
48. Wanneer de bekendstelling van wetten en Gouvernements
bekendmakingen aan het algemeen, niet intijds is geschied, zal de
President van den Uitvoerenden Raad onderzoeken bij wien de schuld
van dat oponthoud gelegen is. Een Landdrost in deze schuldig
(d) The President of the Executive Council delivers to
the Chairman of the Volksraad the laws proposed
by him, and the Volksraad decides the order in
which they shall be dealt with.
(e) The commission mentioned in art. (c) renders its
report, and the Volksraad resolves on the reply
to be given to the President of the Executive
Council.
(/) The Volksraad answers the statement of the Presi-
dent of the Executive Council.
(g) The deliberations on the proposed laws sent in, and
further on the time when they shall come into
force in accordance with art. 12.
(h) The appointment of officials on the recommendation
of the President of the Executive Council.
(i) Remaining business.
(j) Closing of the sitting according to art. 43.
47. The Chairman shall bring up for discussion all proposed
laws sent in to the Volksraad, whether these have been made
known to the public three months before their introduction or
whether the same have been sent in during the session of the
Volksraad.
48. When the publication of laws and Government notices
to the public have not taken place in time, the President of the
Executive Council shall ascertain by whose fault the delay was
caused. A Landdrost, if he is to blame in such a matter, shall
374 SOUTH AFRICAN REPUBLIC [1858
bevonden wordende, zal in eene boete van Rds. 50 vervallen, een
Veldkornet of minder beambte, van Rds. 25.
49. Een afschrift van ieder aangenomene wet zal door den Voor-
zitter aan den President van den Uitvoerenden Raad, ter uitvoering
ingezonden worden.
50. Wanneer een nieuwe President van den Uitvoerenden Raad
benoemd is, zal de Volksraad vier zijner leden en den Secretaris afvaar-
digen, om hem uit te noodigen in de Volksraadsvergadering den ambts-
eed te komen afleggen.
51. Bij de benoeming van de leden van den Uitvoerenden Raad en
den Commandant -Generaal, zal de Volksraad hun daarvan schriftelijk
kennis geven, met uitnoodiging om den ambtseed op een daarbij
bepaalden tijd voor den Volksraad te komen afleggen. [Zie art. 91.]
52. De acten van aanstelling voor landsambtenaren, door den
President van den Uitvoerenden Raad, overeenkomstig art. 13 voor-
gedragen, worden door den Voorzitter en den Secretaris van den
Volksraad onderteekend en aan den Uitvoerenden Raad ingezonden. 1
53. Indien bet Hoog Geregtshof, bedoeld in art. 143, den President
of een der leden van den Uitvoerenden Raad, of den Commandant-
Generaal, onwaardig verklaart om zijn ambt of hunne ambten te
bekleeden, dan zal de Voorzitter van den Volksraad, op ontvangst van
de uitspraak van dat Hof, de leden van den Volksraad bijeenroepen,
welke gehouden zijn, om volgens hunne pligt de zitting bij te wonen,
be liable to a fine of 50 Rix-dollars, a Field-cornet or lesser
official to a fine of 25 Rix-dollars.
49. A copy of every law passed shall be sent by the Chair-
man to the President of the Executive Council to be carried
into effect.
50. Whenever a new President of the Executive Council
shall have been nominated, the Volksraad shall depute four of
its members, with the Secretary, to invite him to appear before
the Volksraad in order to take the oath of office.
51. On the appointment of the members of the Executive
Council and the Commandant-General, the Volksraad shall
apprise them thereof in writing, and shall at the same time
invite them to appear before the Volksraad on a specified date
in order to take the oath of office. [See art. 91.]
52. The letters of appointment of the public officials, sub-
mitted by the President of the Executive Council according to
art. 13, shall be signed by the Chairman and the Secretary
and despatched to the Executive Council. 1
53. In the event of the High Court of Justice, mentioned in
art. 143, declaring the President or any one of the members of
the Executive Council or the Commandant-General unworthy
to fill their office or offices, then the Chairman of the Volksraad
shall, on receiving the judgment of the said Court, call together
the members of the Volksraad, who shall be obliged as in duty
1 The 1889 Grondwet substituted this provision: “The list oi officials
appointed shall be submitted annually by the President to the Volksraad
for its approval or disallowance.”
1858] THE GRONDWET 375
ten einde de veroordeelde of veroordeelden van zijn ambt of hunne
ambten te ontzetten, en zoodra mogelijk in de vervulling der opengeval-
lene plaats of plaatsen te voorzien.
54. De leden van den Volksraad vergaderen in Raadzaal, jaarlijks
op den 2 den Maandag in September, of op andere tijden in het
oproepingsberigt aangewezen, wanneer de President het noodig oordeelt
dat de Volksraad bijeenkomt ; voorts dagelijks des morgens ten negen
ure, om niet minder dan 4 tot 5 uren per dag werkzaam te zijn. De
vergadering van den Volksraad zal met een gepast gebed geopend en
gesloten worden.
55. De Voorzitter van den Volksraad is verantwoordelijk, dat de
vergaderingen volgens bepaling in art. 54 gehouden worden, bij verzuim
waarvan de Volksraad hem beboeten kan met Rds. 5 tot 50.
56.* De Voorzitter zorgt voor de orde tijdens de beraadslagingen,
en heeft hij eenmaal een lid tot de orde moeten terug brengen, dan zal
hij, wanneer zulks voor de tweede maal noodig wordt, hem beboeten.
ledere overtreding door de leden van den Volksraad, van de bepaalde
bij dit, of bij art. 54 begaan, zal gestraft worden met eene boete van
Rds. 5.
57. De handhaving der orde, onder de aanwezige personen, bedoeld
in art. 45, zal moeten worden toevertrouwd aan eenen Veldcornet door
den Landdrost van het district, waar de zitting gehouden wordt,
daartoe aangeschreven.
bound to attend the sitting, in order to dismiss from office the
person or persons convicted, and in order to fill the vacated
seat or seats as soon as possible.
54. The members of the Volksraad shall meet together
annually in the Council Hall on the 2nd Monday in September,
or at other times specified in the writ of summons, when-
ever the President may deem it necessary that the Volksraad
shall assemble ; and the sittings shall commence daily at
9 o’clock in the morning in order to devote not less than from
4 to 5 hours per day to business. Each meeting of the Volks-
raad shall be opened and closed with a suitable prayer.
55. The Chairman of the Volksraad shall be responsible
for the holding of the sittings according to the provisions of
art. 54, in default whereof he shall be liable to be fined by the
Volksraad with 5 to 50 Rix-dollars.
56.* The Chairman shall see to the maintenance of order
during the deliberations, and when he has been compelled
to call any member to order once, he shall fine him if he has
to do so a second time. Each offence committed by any
member against the provisions of this article or of art. 54, shall
be punished with a fine of 5 Rix-dollars.
57. The maintenance of order among the visitors present,
mentioned in art. 45, shall be entrusted to a Field-cornet
pointed out by the Landdrost of the district where the session
is held.
376 SOUTH AFRICAN REPUBLIC [1858
58. De Landdrost zal ook een bode aanstellen, om gedurende de
vergaderingen ten dienste van den Volksraad te staan.
59. De Volksraad beoordeeld alle overtredingen voor de Volksraad
vastgesteld, en in de Raadzaal begaan, en bestraft deswege de overtre-
ders zonder verder beroep.
60. Van alle beboetingen door den Volksraad gedaan, wordt door
de Secretaris kennis gegeven aan de Landdrosten, waaronder de
beboetenen resorteren, en deze dragen zorg voor de invordering.
OVER DEN PRESIDENT EN DE LEDEN VAN DEN UITV. RAAD,
DE VOORSTELLERS DER WETTEN.
61. De President l van den Uitvoerenden Raad wordt bij meerder-
heid van stemmen, voor den tijd van 5 jaren, door de stemgeregtigde
burgers gekozen. Hij moet vijf jaren stemgeregtigde burger geweest,
en lidmaat van de Nederduitsch-Hervoormde Gemeente zijn, 2 geen
onteerend vonnis te zijnen laste gehad en den ouderdom van 30 jaren
bereikt hebben.
62. De President van den Uitvoerenden Raad is de eerste of hoogste
ambtenaar van den Staat, alle landsambtenaren zijn hem onder-
geschikt ; dezulke center die met de uitoefening der Regtsmagt bedeeld
zijn, zijn in die uitoefening geheel en al vrij en onafhankelijk.
58. The Landdrost shall further appoint a messenger to
be at the service of the Volksraad during the sittings.
59. The Volksraad shall decide upon all violations of the
rules laid down for its guidance, if such violations shall take
place within the Council Chamber, and shall punish the
offenders for the same without any appeal.
60. Of all fines imposed by the Volksraad, notice shall be
given by the Secretary to the Landdrost under whose juris-
diction the persons fined may be classed, and who shall see to
the collection of the same.
ABOUT THE PRESIDENT AND THE MEMBERS OF THE
EXECUTIVE COUNCIL, THE PROPOSERS OF LAWS.
61. The President 1 of the Executive Council shall be
chosen for the period of 5 years by a majority of the votes of
the burghers possessing the franchise. He must have been
for five years a burgher possessing the franchise, and a
member of the Dutch Reformed Congregation, 2 not convicted
of any dishonouring crime, and have reached the age of 30
years.
62. The President of the Executive Council is the first or
highest official in the State. All public officials are subject to
him. Those, however, to whom the exercise of j udicial authority
is entrusted, are, in the exercise thereof, entirely free and in-
dependent.
1 The 1889 Grondwet stated that the executive power was vested in the
President and that he was responsible to the Volksraad.
1 The 1889 Grondwet demanded membership of some Protestant Church,
1858] THE GRONDWET 377
63. Zoolang de President die betrekking waarneemt, zal hij geene
andere, noch kerkelijke bediening vervullen, geen handel drijven en
zich nooit zonder toestemming van den Volksraad buiten ‘s lands
begeven. l
64. Ingeval van ontzetting van zijn post, dood, ontslag of onbe-
kwaamheid om zijne betrekking te vervullen, zal deze worden toever-
trouwd aan den oudsten der leden van den Uitvoerenden Raad, welke
zoo spoedig mogelijk zal kennis geven aan den Volksraad, om te voorzien
in de opengevallen plaats. 2
65. De President zal door den Volksraad van zijn post ontslagen
of ontzet worden na overtuiging van wangedrag, verduistering van
Staatseigendom, verraad, of andere zware misdaden, en verder naar de
wetten behandeld worden. 3
66. Aan den President is opgedragen het voorstellen van wetten
aan den Volksraad, hetzij eigene voorstellen, hetzij anderen van het
volk bij hem ingekomen, hij zal die voorstellen, drie maanden voor
het indienen aan den Volksraad, door middel van de Staatscourant
aan het algemeen moeten bekend maken ; benevens alle andere stukken,
die door hem. nuttig en noodig geoordeeld worden.
67. Alle voorstellen van wet bij den President ingekomen, zullen,
voordat deze bekend gemaakt worden, door den President en den
63. So long as the President shall be in office, he shall hold
no other, nor fill any ecclesiastical position, he shall carry on
no trade, nor shall he betake himself to any place outside
this country except with the consent of the Volksraad. 1
64. In case of his dismissal from office, death, discharge,
or inability to fulfil the duties of his office, such office shall be
entrusted to the oldest of the members of the Executive Council,
who shall as speedily as possible give notice to the Volksraad,
in order that the office vacated may be filled. 2
65. The President shall be discharged or dismissed from
office by the Volksraad on conviction of bad behaviour, em-
bezzlement of State property, treason or other serious crimes ;
and he shall further be dealt with according to law. 3
66. To the President is entrusted the proposal of laws to
the Volksraad, whether they be his own proposals or sent in
to him by the people ; it shall be his duty to make such pro-
posals known to the public, through the medium of the
Staatscourant, three months before they are introduced in
the Volksraad ; and similarly with regard to all other papers
which he may deem useful and necessary.
67. All proposed laws sent in to the President shall before
publication be considered by the President and the Executive
1 The 1889 Grondwet permitted the President to leave the country for
private purposes in case of necessity.
2 The 1889 Grondwet laid it down that the Volksraad should appoint as
Vice-President a member of the Executive Council.
3 The 1889 Grondwet provided that if the Volksraad decided that the
President should be prosecuted for breaking the Grondwet or for some other
offence against the State, then the State Attorney should prosecute him
before a special court consisting of the members of the High Court of Justice,
{he Chairman of the Volksraad, and one other member of the Volksraad.
378 SOUTH AFRICAN REPUBLIC [1858
Uitvoerenden Raad beoordeeld worden of de bekendmaking noodig zij
of niet.
68. De verdediging van elk voorstel van wet geschiedt voor den
Volksraad door den President, of in persoon, of door een der leden van
den Uitvoerenden Raad, daartoe door hem aangewezen. 1
69. Zoodra de President van den Uitvoerenden Raad de kennisge-
ving van den Volksraad ontvangen heeft, dat de voorgestelde wet is
aangenomen, zal hij die wet binnen twee maanden doen bekend maken,
en na verloop van eene maand, te rekenen na de algemeene bekend-
making, voor de uitvoering derzelve zorg dragen.
70. Van de oorlogswet, bedoeld in art. 26, zal niet anders, dan door
den President, met toestemming van de leden van den Uitvoerenden
Raad, kunnen kennis gegeven worden. Die kennisgeving zal echter
moeten plaats hebben, in geval van dringend gevaar, en de wet zal
dan dadelijk ten uitvoer gebragt worden ; de beoordeeling over het
gevaar wordt aan den President en de leden van den Uitvoerenden
Raad en ter hunner verantwoording overgelaten. De Commandant –
Generaal zal bij de beoordeeling en beslissing over krijgszaken in den
Uitvoerenden Raad, in zijne betrekking, bij die vergadering moeten
aanwezig zijn en mede eene stem als zoodanig hebben.
71. De President van den Uitvoerenden Raad doet de voordragt
van alle landsambtenaren aan den Volksraad, in overeenstemming
met de wetten omtrent de aanstelling der landsambtenaren.
Council in order to decide whether such publication is neces-
sary or not.
68. It shall rest with the President personally to recom-
mend every proposed law to the Volksraad, or he may appoint
any of the members of the Executive Council for that purpose. 1
69. As soon as the President of the Executive Council has
received a notification from the Volksraad to the effect that
the proposed law has been adopted, he shall cause the said
law to be published within two months, and on the expiry of
another month from the date of publication he shall cause the
said law to be carried out.
70. As regards the War Ordinance mentioned in art. 26,
publication thereof shall alone be made by the President with
the consent of the Executive Council. Such publication shall,
however, be made in case of imminent danger, and the law
shall then take effect immediately ; the decision as to the
danger shall rest with the President and members of the
Executive Council on their own responsibility. The Com-
mandant-General shall, by virtue of his office, be obliged to
be present at those meetings of the Executive Council in
which decisions or resolutions are taken with regard to military
affairs, and he shall then also have a vote.
71. The President of the Executive Council shall recom-
mend all public officials to the Volksraad, in accordance
with the laws relating to the appointment of public officials.
1 By Law 3, 1881, the member under whose department a bill fell was made
responsible for its introduction.
1858] THE GRONDWET 379
72. De President beantwoordt zoo veel mogelijk aan het verlangen
van het volk, aangewezen in art. 24.
73. De President zal jaarlijks in de maand September het voorstel
eener begrotingswet van algemeene uitgaven en inkomsten, voor Kerk
en Staat, 1 aan den Volksraad inzenden, en daarin aanwijzen hoe het
tekortkomende te dekken of het overschot te besteden.
74. Ook zal hij tijdens die zitting van den Volksraad verslag geven
van zijne verrigtingen gedurende het afgeloopen jaar, van den toestand
der Republiek en van al wat haar belang in het algemeen betreft.
75. Na onderzoek van de aan den Uitv. Raad ingezonden kieslijsten
voor de leden van den Volksraad, zal hij dien raad bijeenroepen, jaar-
lijks tegen den 2 den Maandag in September, en wanneer de noodza-
kelijkheid zulks vereischt.
76. Hij doet in de maand Maart openbaar bekend maken, de namen
en woonplaatsen der gekozenen tot leden van den Volksraad.
77. De schriftelijke bijeenroeping der leden van den Volksraad
tot de zitting, zal drie weken voor de opening derzelve ten hunne
huizen bezorgd moeten zijn.
78. De President zal ten minste eenmaal in het jaar de steden en
dorpen der Republiek, waar landskantoren zijn, bezoeken ; den staat
dier kantoren opnemen, en het gedrag der landsambtenaren nagaan ;
en op die rondreize den ingezetenen gelegenheid geven om, gedurende
zijn oponthoud, hunne belangen aan hem voor te dragen.
72. The President shall as far as possible act in accord-
ance with the wishes of the people, indicated in art. 24.
73. The President shall annually in the month of September
submit to the Volksraad an estimate of the general expendi-
ture and revenue for Church and State* pointing out how the
deficiency can be covered and how the surplus may be invested.
74. He shall also, during the session of the Volksraad
render account of his doings during the past year, of the state
of the Republic, and of all that concerns its welfare generally.
75. After examination of the voting lists for the members
of the Volksraad sent in to the Executive Council, he shall
summon the said Raad annually by the 2nd Monday in Sep-
tember, and also when it shall be urgently necessary.
76. In the month of March he shall make known to the
public the names and places of residence of those elected as
members of the Volksraad.
77. The written summonses to the members of the Volks-
raad shall be delivered at their residences three weeks previous
to the opening of the same.
78. The President shall visit at least once a year the
cities and towns of the Republic where there are public offices ;
he shall take note of the state of those offices and observe the
behaviour of the public officials ; and on such tour he shall
give the inhabitants the opportunity to lay before him their
interests during his stay at any place.
1 The italicised words were omitted from the 1889 Grondwet.
380 SOUTH AFRICAN REPUBLIC [1858
79. De President heeft de magt, behoudens zijne verantwoording
aan den Volksraad, om de landsambtenaren in hunne betrekking te
stuiten, voorlopige aanstellingen te doen, en alle opene plaatsen in te
vullen. Hij doet de eerstvolgende zitting van den Volksraad verslag
dezer handelingen.
80. De President onderteekent mede alle benoemingen van lands-
ambtenaren, doet hen hunne instructie zelve of door bevoegde ambte-
naren voorlezen en verklaren ; den ambtseed afleggen en teekenen, en
laat hen na de aanstelling een afschrift der instructie ter hand stellen.
8 1. De President is belast met de regeling der algemeene dienst,
het postwezen en de openbare werken, hij en de leden van den Uitv.
Raad zijn tevens belast met het oppertoezigt over de kruitmagazijnen
en kanonnen van den Staat.
82. De brief wisseling met buitenlandsche Mogendheden zal door den
President en den Uitvoerenden Raad gevoerd worden. De brieven
zullen door hem en den Gouvernements Secretaris l gevoerd worden.
83. De President met den Uitvoerenden Raad heeft het regt om
de straf of de straff en, ter zake van wangedrag of misdaad, uitgesproken,
te verminderen of kwijt te schelden, op voordragt van het Hof , dat het
vonnis heeft geveld, of op verzoek van den veroordeelden, na daarom-
trent het advies van het Hof te hebben ingewonnen.
79. The President has the power, subject to his responsi-
bility to the Volksraad, to suspend public officials from their
posts, to make provisional appointments, and to fill all
vacancies. At the next following session of the Volksraad he
shall give an account of these proceedings.
80. The President shall likewise sign all appointments of
public officials, shall read out and explain to them, either in
person or through competent officers, their instructions, shall
administer and sign the oaths of office and shall cause a copy
of their instructions to be handed them on their appointment.
81. The regulation of the public service, the postal service
and the public works is entrusted to the President, who is
further entrusted, together with the members of the Executive
Council, with the supervision of the powder magazines and
the artillery of the State.
82. All correspondence with foreign powers shall be con-
ducted by the President and the Executive Council. All
letters shall be drawn up and signed by him and the Govern-
ment Secretary. 1
83. The President, with the Executive Council, shall have
the right to commute or remit a sentence or sentences pro-
nounced for misconduct or crime, on the recommendation of
the Court which pronounced the sentence, or on petition made
by the party sentenced, after having obtained the opinion of
the Court thereon.
1 By resolution of the Volksraad, dated 31 May 1873, his official title was
changed to that of State Secretary (Staatssecretaris). Locale Wetten der Z.A.
Rep. I. 519.
1858] THE GRONDWEf 381
84. Voor het aanvaarden van zijn ambt, zal hij den volgenden
eed in handen van den Volksraad afleggen :
” Als verkozen tot President van den Uitvoerenden Raad dezer
Republiek beloof en zweer ik plegtig, dat ik getrouw zal
zijn aan het volk ; dat ik in mijne betrekking naar recht
en wet zal handelen, volgens mijn beste kennis en geweten,
zonder aanzien des persoons ; dat ik aan niemand eenige
gunst of gift gedaan heb om tot die betrekking te geraken ;
dat ik van niemand eenige gift of gunst zal aannemen,
wanneer ik vermoeden kan, dat deze gift of gunst gedaan
of bewezen zou worden, met het oogmerk om van mij
een besluit ten voordele van den begunstiger of gever te
Sjwinnen ; dat ik mij zal gedragen overeenkomstig de
rondwet dezer Republiek, en niets anders bedoel dan
de bevordering van het geluk en welzijn van hare
ingezetenen in het algemeen.”
85. 1 Den President zal een Uitvoerenden Raad toegevoegd worden,
bestaande uit den Commandant-Generaal, 2 twee stemgeregtigde
burgers en een Secretaris, welke gelijke stem zullen hebben en den
titel voeren van leden van den Uitvoerenden Raad. De President en
84. Before assuming his office he shall take the following
oath before the Volksraad :
” As elected President of the Executive Council of this
Republic I promise and swear solemnly that I
shall be faithful to the people ; that in the dis-
charge of my office I shall act according to
justice and law to the best of my knowledge and
according to the dictates of my conscience, with-
out respect of persons ; that I have done no
favour and given no gift in order to obtain this
office ; that I shall accept no gift or favour from
any one, if I have reason to suspect that such gift
or favour is granted or done with the purpose
of obtaining from me any decision which may
benefit the person granting the gift or favour ;
that I shall conduct myself in accordance with
the Grondwet of this Republic, and that I aim
at nothing but the advancement of the happi-
ness and welfare of its inhabitants in general.”
85. x To the President shall be allowed an Executive Council,
consisting of the Commandant-General, 2 two burghers possess-
ing the franchise, and a Secretary, who shall all have an equal
vote and bear the title of members of the Executive Council.
1 Cf. art. 82 of the 1889 Grondwet below.
2 By resolution of the Volksraad, dated 30 May 1873, the State Attorney
(Staatsprocurew) was substituted for the Commandant-General. Locale
Wetten der Z.A. Rep. I. 519. Vide also resolution dated 27 May 1889, below,
and the foot-note given there. Cf. No. 209.
382 SOUTH AFRICAN REPUBLIC [1858
de leden van den Uitvoerenden Raad zullen wel sitting, doch geen
stem in den Volksraad hebben.
86. De President zal Voorzitter van den Uitvoerenden Raad wezen,
en bij staking van stemmen eene beslissende stem hebben. Bij de
bekrachtiging van doodvonnissen of oorlogsverklaringen, zal de
eenparige stem van den Uitvoerenden Raad, ter beslissing vereischt
worden.
87. De Uitvoerende Raad zal op den eersten Woensdag der maanden
Februarij, April, Junij, Augustus, October en December, en op zoo-
danige andere tijden als de President zal noodig oordelen, ten zijnen
kantore zitting houden.
88. Alle besluiten van den Uitvoerenden Raad en ambtsbrieven
van den President, moeten, behalve door hem, ook door den Gouverne-
ments Secretaris onderteekend werden. De mede-onderteekenaar is
teevens verantwoordelijk, dat de inhoud van het besluit of van den
brief niet strijd met de bestaande wetten.
89. De beide stemgeregtigde burgers of leden van den Uitvoerenden
Raad, bedoeld bij art. 85, worden door den Volksraad gekozen, voor
den tijd van 3 jaren ; de Commandant-Generaal voor een onbepaalden
tijd ; zij moeten lidmaten der Nederduitsch-Hervormde Gemeente l
zijn, geen onteerend vonnis ten hunne laste gehad en den ouderdom
The President and members of the Executive Council shall be
entitled to sit but not to vote in the Volksraad.
86. The President shall be the Chairman of the Executive
Council, and when the votes are equal, he shall have a casting
vote. In confirming death sentences or the declaration of
war, the unanimous vote of the Executive Council shall be
necessary to arrive at a decision.
87. The Executive Council shall meet on the first Wednes-
day of the months of February, April, June, August, October
and December, at the President’s office, and at such other
times as he shall deem necessary.
88. All resolutions of the Executive Council and official
correspondence of the President shall be signed by the Govern-
ment Secretary as well as by the President. The person who
signs with the President is likewise responsible for seeing that
the contents of any resolution or letter shall not be in conflict
with existing laws.
89. Both the burghers possessing the franchise who are
members of the Executive Council, as mentioned in art. 85,
shall be chosen by the Volksraad for a period of 3 years ;
the Commandant-General for an indefinite time ; they shall
be members of the Dutch Reformed Congregation, 1 shall
not have had a dishonouring sentence passed against them,
and shall have reached the age of thirty years. They shall
1 Subsequently altered to “members of a Protestant Church.” 1889
Grondwet, art. 88.
THE GRONDWET 383
van dertig jaren bereikt hebben. Alsmede de vereischten bezitten
in art. 3 1 voor de leden van den Volksraad vastgesteld.
90. De Secretaris van den Uitvoerenden Raad wordt mede door
den Volksraad gekozen ; doch aangesteld voor den tijd van vier jaren.
Bij aftreding is hij herkiesbaar. Hij moet lidmaat van de Neder-
duitsch Hervormde Gemeente 1 zijn, geen onteerend vonnis ten zijnen
laste gehad hebben, vastgoed in de Republiek bezitten en den ouderdom
van 30 jaar bereikt hebben.
91. Alvorens de leden van den Uitvoerenden Raad en den Com-
mandant-Generaal hunne betrekking aanvaren leggen zij den ambtseed
in handen van den Volksraad af en teekenen denzelven. Die eed zal
zijn van gelijken inhoud als die van den President van den Uitvoeren-
den Raad, gewijzigd naar den titel of de betrekking van den beeedigde,
en die van den Commandant-Generaal, naar den inhoud van art. 108.
92. Alvorens de Secretaris zijn betrekking aanvaart legt hij den
volgenden eed 3 in handen van den Uitvoerenden Raad af en teekent
denzelven ; de Uitvoerende Raad zal voor hem eene instructie ver-
vaardigen.
93. Ingeval de Volksraad oordeelt aan de klagten in art. 34 vermeld
gevolg te moeten geven, zal hij de aanklagt tot het doen van onderzoek,
in handen stellen van den Staatsprocureur. Blijkt uit dat onderzoek
dat de aanklagt gegrond is, dan zal de Volksraad de aanklagt ver-
further possess the qualifications of members of the Volksraad
laid down in art. 31.
90. The Secretary of the Executive Council shall also be
chosen by the Volksraad, but his appointment shall be for
a period of four years. On vacating his office he shall be
re-eligible. He shall be a member of the Dutch Reformed
Congregation, 1 shall have had no dishonouring sentence
passed against him, shall possess immovable property in the
Republic, and shall have reached the age of 30 years.
91. Before entering upon the duties of their office, the
members of the Executive Council and the Commandant-
General shall take the oath of office before the Volksraad and
shall sign the same. The said oath shall be of like tenor as
that of the President of the Executive Council, modified ac-
cording to the title or office of the party sworn, and that of
the Commandant- General shall be according to art. 108.
92. Before entering on the duties of his office, the Secretary
shall take and sign the following oath 2 before the Executive
Council. The Executive Council shall draw up his instructions.
93. In case the Volksraad shall decide that it is its duty to
give effect to the complaints mentioned in art. 34, it shall
place the charges to be investigated in the hands of the State
Attorney. If it appears from the investigation that the charge
is well founded, then the Volksraad shall forward the same
1 Subsequently altered to “member of a Protestant Church.” 1889
Grondwet, art. 89.
8 The oath prescribed for the Secretary is not given in this Grondwet.
384 SOUTH AFRICAN REPUBLIC [1858
zenden naar het Hoog Geregtshof, 1 onder kennisgeving van die ver-
zending aan den bedoelden Staats-Procureur. Dit hof zal dan van
de zaak kennis nemen en in het hoogste ressort uitspraak doen.
94.* Bij pligtverzuim van den President of een der leden van den
Uitvoerenden Raad, om. aan Art. 87 te voldoen, zullen zij beboet
worden met 5 tot 10 Rds. of verder naar den aard der zaak.
95.* Het Gouvernements-kantoor zal dagelijks geopend wezen van
des morgens 10 tot 3 uren, uitgezonderd de Zaterdags van iedere week,
en al de Zon- en Feestdagen.
OVER DE KRIJGSMAGT EN DEN KRIJGSRAAD.
96. De krijgsmagt bestaat uit al de weerbare mannen van deze
Republiek, en zoo noodig uit al die der kleurlingen binnen ‘s lands,
wierOpperhoofden aan haar onderworpen zijn.
97. De weerbare mannen van de blanken zijn, alle manspersonen,
tusschen den ouderdom van 16 en 60 jaren ; en van de kleurlingen,
alien die in staat zijn om in den krijg van dienst te wezen.
98. Tot indeeling van de krijgsmagt, wordt het grondgebied dezer
Republiek verdeeld in veldkornetschappen en districten. De schei-
dings-lijnen der veldcornetschappen en districten worden bepaald door
en bij gezamenlijk overleg van den President van den Uitvoerenden
Raad, den Commandant-Generaal 2 en de aangrenzende Comman-
danten 2 en Veldcornetten ; en ieder inwoner zal verpligt wezen om onder
to the High Court of Justice, 1 at the same time giving notice
thereof to the said State Attorney. The Court shall then take
cognizance of the charge, and deliver judgment in the last
resort.
94.* In case of neglect of duty by the President or one of
the members of the Executive Council, in not complying with
art. 87, they shall be fined with a sum of from 5 to 10 Rix-
dollars, or otherwise according to the nature of the case.
95.* The Government office shall be open daily from 10 a.m.
to 3 p.m., Saturdays, Sundays, and holidays excepted.
ABOUT THE MILITARY POWER AND THE COUNCIL OF WAR.
96. The military power comprises all the able-bodied men
of this Republic, and, if necessary, all the coloured people in
this country, whose chiefs are subject to it.
97. The able-bodied men of the white population are all
the male persons between the ages of 16 and 60 ; and of the
coloured people, all who are able to render service in war.
98. For organising the military power the territory of this
Republic shall be divided into field-cornetcies and districts.
The boundaries of the field-cornetcies and districts shall be
fixed through and by the joint decision of the President of
the Executive Council, the Commandant- General 2 and the
Commandants 2 and Field-cornets of the neighbourhood ; and
1 Or, as the 1889 Grondwet, art. 92, provided, to the special court referred
to above in the foot-note to art. 65.
2 By resolutions of the Volksraad dated 7 June 1873, the offices of Com-
1858] THE GRONDWET 385
dat veldcornetschap of district, waaronder hij woont, aan die authori-
teiten te gehoorzamen.
99. De manschappen staan onder het bevel van de volgende
Officieren, zijnde naar rang van opklimming : Assistent-Veldcornetten,
Veldcornetten, Commandanten, en een Commandant-Generaal.
100. De Officieren worden bij meerderheid van stemmen gekozen
namelijk, de Assistent-Veldcornetten en Veldcornetten, door de
stemgeregtigde burgers der wijken ; zoo de Commandanten door de
stemgeregtigde burgers der districten. En de Commandant-Generaal
door al de stemgeregtigde burgers dezer Republiek. De kiesloten
voor de verkiezing der Officieren, zullen bij de landdrosten bezorgd
worden, die deze zullen moeten opzenden aan den Uitvoerenden Raad.
De Uitvoerende Raad zal verpligt wezen aan den gekozen Comman-
dant-Generaal, van de op hem gevallene keuze kennis te geven.
101. Zij worden aangesteld voor een onbepaalden tijd, 1 en zijn
bij aftreding verkiesbaar. De Commandant-Generaal zal van zijn
post ontslagen of ontzet worden, bij overtuiging van misdaden, ver-
meld in art. 65.
102. Voor elk district zullen niet meer dan twee 2 Commandanten
gekozen worden.
103. De krijgsmagt met uitzondering der gekleurde huurlingen,
it shall be the duty of every inhabitant to obey the authorities
of the field-cornetcy or the district to which he belongs.
99. The men shall be under the command of the following
officers according to their rank from the lowest to the highest :
Assistant Field-cornets ; Field-cornets ; Commandants ; Com-
mandant- General .
100. The Officers are chosen by majority of votes, viz. :
Assistant Field-cornets and Field-cornets by the burghers of
the wards who possess the franchise, and in like manner the
Commandants by the burghers of the district who possess the
franchise, and the Commandant-General by all the burghers
possessing the franchise in this Republic. The voting-papers
for the election of officers shall be sent to the Landdrost, whose
duty it shall be to send them to the Executive Council. It
shall be the duty of the Executive Council to give notice to
the elected Commandant- General of the choice that has fallen
upon him.
101. They shall be appointed for an indefinite time, 1 and
on vacating their offices they shall be eligible for re-election.
The Commandant- General shall be dismissed from office or
discharged on conviction of the crimes mentioned in art. 65.
102. For each district not more than two Commandants *
shall be chosen.
103. The military force, with the exception of the coloured
mandant and Commandant-General were abolished in time of peace. Locale
Wetten der Z.A. Rep. I. 520.
1 The 1889 Grondwet, art. 99, said : “The Commandant-General for 10
years, the Commandants for 5 years and Field-cornets for 3 years.”
2 The 1889 Grondwet, art. 100, provided for only one.
25
386 SOUTH AFRICAN REPUBLIC [1858
wordt opgeroepen tot handhaving van orde : tot commando’s ter
gelegenheid van binnenlandsche opstanden ; en zonder eenige uitzon-
dering, tot verdediging des lands en tot beoorloging van buitenlandsche
vijanden.
104. Is opgedragen aan de Adsistent Veldcornetten en Veld-
cornetten, de handhaving van orde ; aan de Commandanten, de
commando’s ter zake van binnenlandsche opstanden der kleurlingen ;
aan den Commandant-Generaal de commando’s tot demping van
onlusten onder de blanke bevolking, de verdediging des lands en het
beoorlogen van buitenlandsche vijanden ; in welke gevallen de Com-
mandant-Generaal het opperbevel over het geheele leger zal hebben.
105. Wordt verstaan door :
(a) Handhaving van orde : de nakoming der wetten, de ten
uitvoerlegging der vonnissen na ontvangen order ; en
de inachtneming der maatregelen van algemeen en
plaatselijk belang ; voorts het opzigt over de kleur-
lingen en het tegengaan van landlooperij en vagebonden
in de veldcornetschappen.
(b) Commando’s ter zake van opstanden der kleurlingen ; het tot
pligt brengen van binnenlandsche Kaffer-opperhoofden.
(c) Commando’s tot demping van onlusten onder de blanke be-
volking ; het aanvoeren van voldoende magt naar het
district waar de onlusten zijn uitgebroken, en door
hired servants, shall be called up for the preservation of order,
for commandos in case of internal insurrections ; and without
any exception, when the country has to be defended or war
has to be waged against foreign enemies.
104. To the Assistant Field-cornets and Field-cornets is
entrusted the preservation of order ; to the Commandants
the commandos, in case of internal insurrections of the coloured
population ; to the Commandant-General the commandos for
the suppression of disaffection amongst the white population,
for the defence of the country and for waging war against
foreign enemies, in which last cases the Commandant-General
shall have the supreme command of the whole army.
105. (a) By maintenance of order is understood seeing to the
observance of the laws, the execution of sentences
on receipt of an order to that effect, the observ-
ance of measures of general and local concern,
besides the supervision of the coloured popula-
tion and the suppression of vagrancy and
vagabonds in the field-cornetcies.
(b) By commandos in case of insurrection of the coloured
people is understood keeping the Kaffir-chiefs to
the performance of their duty.
(c) By commandos for the suppression of disaffection
among the white population is meant conducting
a sufficient force to the district where such
disaffection has arisen.
1858] THE GRONDWET 387
(d) Verdediging des lands en het voeren van oorlog ; het ten
uitvoer brengen van de oorlogswet (zie art. 26 en art. 70),
het te velde trekken aan het hoofd des legers.
1 06. Al de orders ontvangen de onderhoorigen van de boven hen
gestelde officieren en ambtenaren.
107. Al de officieren, uitgenomen de Commandant-Generaal, zullen
voor het aanvaarden hunner betrekking bee’edigd worden door den
President van den Uitv. Raad, overeenkomstig art. 80 ; en de
Commandant-Generaal zal voor den Volksraad bee’edigd worden,
overeenkomstig arts. 91 en 108.
108. Hun eed zal zijn van den volgenden inhoud :
” Ik beloof en zweer plegtig trouw aan het volk dezer Republiek ;
in mijne betrekking naar wet, regt en billijkheid te
zullen handelen ; volgens mijn beste kennis en geweten,
zonder aanzien des persoons ; dat ik aan niemand eenige
gift of gunst gedaan of beloofd heb om tot die betrekking
te geraken ; van niemand eenige gift of gunst te zullen
aannemen wanneer ik vermoeden kan dat deze gedaan
of bewezen zou worden om mij in mijne betrekking ten
voordele van den gever of begunstiger over te halen ;
te zullen gehoorzamen aan de bevelen der boven mij
gestelden, volgens de wet, en niets anders te beoogen
(d) By defence of the country and the waging of war is
understood the carrying out of the War Ordinance
(see arts. 26 and 70), and taking the field at the
head of the army.
106. The subordinate officers shall receive all their orders
from the officers and officials placed above them.
107. All the officers, the Commandant- General only ex-
cepted, shall, before entering on the duties of their office, take
an oath before the President of the Executive Council according
to art. 80 ; and the Commandant shall be sworn before the
Volksraad, according to arts. 91 and 108.
108. Their oath shall be of the following tenor :
” I solemnly promise and swear fealty to the people of
this Republic ; to act according to law, justice,
and equity in my office, to the best of my know-
ledge and according to the dictates of my con-
science, without respect of persons ; that I have
not bestowed or promised any gift or favour to
any one in order to obtain that office ; that I
will not accept any gift or favour from any one
when I can suspect that it might be done or
bestowed in order to influence me in “the exercise
of my office in favour of the donor or giver ;
to obey the commands of those placed above me
according to law ; and to aim at nothing but
388 SOUTH AFRICAN REPUBLIC [1858
dan den bloei, de welvaart en onafhankelijkheid van het
land en volk dezer Republiek.
109.* Ingeval niet wordt voldaan aan de gedane oproeping, of aan
de bevelen van de bevoegde magt, zullen de nalatigen met de volgende
boeten gestraft worden, te weten :
De manschappen naar gelang van omstandigheden, van Rds. 5
tot 40, te bepalen door de Veldcornetten, die deswege
verantwoordelijk zijn zullen aan hunne Commandanten,
die daaromtrent volgens art. 123 zullen handelen.
De Assistent- Veldcornetten met Rds. 10 tot 50.
De Veldcornetten met Rds. 25 tot 75.
De Commandanten met Rds. 25 tot 500.
De Commandant-Generaal, niet voldoende aan de bevelen van
den President van den Uitvoerenden Raad, met Rds. 50
tot 2000 en verder naar den aard der zaak.
no. De Veldcornetten zullen, buiten wettige verhindering alle
drie maanden verslag doen aan de Landdrosten van hetgeen met en
omtrent hunne onderhoorigen in de wijken in de afgeloopene maanden
is voorgevallen ; en zoovele malen, buiten dien tijd als een rapport
onmiddelijk vereischt wordt. Betreffende krijgszaken zal de Veld-
cornet ook varpligt en gehouden zijn om, behalve aan den landdrost,
ook aan den boven hem gestelden Commandant verslag te geven en
the progress, welfare, and independence of the
territory and the people of this Republic.
109.* In case the call for service is not responded to, or
the commands of the competent authority are not obeyed, the
defaulters shall be punished with the following fines, to wit :
The men, according to circumstances, from 5 to 40 Rix-
dollars, to be decided on by the Field-cornets,
who, in this matter shall be responsible to their
Commandants, who shall act in the matter
according to art. 123.
The Assistant Field-cornets with from 10 to 50 Rix-
dollars.
The Field-cornets with from 25 to 75 Rix-dollars.
The Commandants with from 25 to 500 Rix-dollars.
The Commandant- General, not complying with the
commands of the President of the Executive
Council, shall be punished with from 50 to
2000 Rix-dollars, and further according to the
nature of the case.
no. The Field-cornets shall, there being no lawful impedi-
ment, report every three months to the Landdrosts concerning
what has happened to or with their subordinates in the wards
during the months that have elapsed ; at other times a report
shall be made as often as it shall seem urgently necessary.
Regarding matters of war the Field-cornet shall also be obliged
to report to the Commandant placed over him as well as to
1858] THE GRONDWET 389
te rapporteren. Daaraan niet voldoende, of bij nalatigheid, zal hij
beboet worden met Rds. 10.
in. De Commandanten zenden de bij hen ingekomene drie maan-
delijksche verslagen der Veldcornetten, met bijvoeging van hun eigen
verslag, benevens hunne aanmerkingen aan den Commandant-Generaal.
Deze handelt desgelijks met de verslagen der Commandanten, bij de
toezending van zijn verslag aan den President van den Uitv. Raad,
en zonder oponthoud moeten die verslagen naar den President ver-
zonden worden.
112.* In tijd van oorlog of wanneer een commando in bet veld is,
zal de Krijgsraad bijeengeroepen worden door den Commandant-
Generaal, wanneer hij zulks noodig acht, of als er beschuldigingen
zijn ingekomen tegen officieren of manschappen, ter zake van over-
tredingen, wangedrag of misdaden begaan of gepleegd. De krijgsraad
zal bestaan uit al de of&cieren en ambtenaren die aanwezig zijn.
113.* Die krijgsraad kan ook belegd worden :
(a) Bij commandos ter zake van opstand der kleurlingen.
(&) Bij commandos tot demping van onlusten onder de blanke
bevolking.
(c) Bij verdediging des lands of het voeren van oorlog.
De hoogste officier in rang zal daarvan voorzitter en een der leden,
of een daartoe door den Commandant-Generaal aangewezen persoon,
secretaris zijn. Allen zullen gelijke stem hebben. Bij meerderheid
the Landdrost. In case of non-compliance herewith, or of
neglect, he shall be fined 10 Rix-dollars.
in. The Commandants shall forward the three-monthly
reports of the Field-cornets made to them to the Commandant-
General, together with their own report and remarks thereon.
The latter shall act in the same manner with the reports of
the Commandants when submitting his report to the President
of the Executive Council, and these reports must be sent to
the President without delay.
112.* In time of war, or when a commando is in the field,
the War Council shall be summoned by the Commandant-
General whenever he may deem it necessary, or when accusa-
tions have been brought against any of the officers or men in
case of transgressions, misconduct or crimes committed or
perpetrated. The War Council shall consist of all the officers
and officials who are present.
113.* The War Council may also be summoned :
(a) On commando, in case of a rising of the coloured
people.
(b) On commando, for the suppression of disaffection
among the white population.
(c) While defending the country or waging war.
The officer of highest rank shall be chairman thereof, and
one of the members, or some* other person pointed out by the
Commandant-General, shall act as secretary. All shall have
390 SOUTH AFRICAN REPUBLIC [1858
van stemmen wordt besloten en bij gelijkheid l van stemmen zal de
stem van den voorzitter beslissend zijn.
114.* De dienstdoende leden van den Volksraad, vermeld in Art.
44, de landsambtenaren, de kerkelijke beambten, de geordende school-
onderwijzers, en de negotianten, kunnen niet in persoon tot den
krijgsdienst worden opgeroepen, dan wanneer de oorlogswet is afge-
kondigd.
115.* Ook zijn van persoonlijke krijgsdienst verschoond : de
eenige zonen van weduwen ; zij die zoodanige lichaams-gebreken
hebben, welke hen tot de krijgsdienst ongeschikt maken ; en zij die
zoodanige wettige en gegronde verontschuldigingen kunnen bijbrengen,
om daarvan verschoond te wezen ; een en ander ter beoordeeling der
Veldcornetten, die weder deswege verantwoording schuldig zijn aan
hunne Commandanten.
1 1 6.* De manschappen tusschen de 16 en 60 jaren, die van per-
soonlijken krijgsdienst zijn vrijgesteld, zullen ten behoeve van den
dienst vermeld in art. 105, onder de letters b, c, d, bijdragen moeten
doen, waarvan het bedrag bij ordonnantie van den Uitv. Raad nader
zal geregeld worden.
117.* Die bijdragen zullen door den Veldcornet gevorderd en aan
hem geleverd moeten worden, binnen den tijd door hem te bepalen.
1 1 8.* De nalatige, in de nakoming van art. 117, zal gestraft
worden met eene boete van 5 tot 10 Rds., op te leggen naar bevinding
votes of equal value. Decisions shall be taken by majority
of votes, and when the voting is equal J the chairman shall have
a casting vote.
114.* The members of the Volksraad actually engaged in
their duties as members, as mentioned in art. 44, the public
officials, the church officials, the approved schoolmasters, and
the shopkeepers, shall not be called up for personal service,
except when the war ordinance shall have been proclaimed.
115.* The following persons shall also be exempt from
personal military service : The only sons of widows, those who
have such bodily infirmities as make them unfit for military
service, and those who can show such lawful and well-founded
reasons as will exempt them therefrom ; all of which shall be
subject to the decision of the Field-cornets, who in their turn
shall be responsible to their Commandants.
116.* The men between the ages of 16 and 60, who shall
be exempt from personal military service, shall, for the pro-
motion of the service mentioned in art. 105, sections b, c, and d,
make contributions, the amounts of which shall be specified by
ordinance of the Executive Council.
117.* Those contributions shall be collected by the Field-
cornet, and must be delivered to him within a time to be fixed
by him.
118.* Those who do not comply with art. 117 shall be
punished with a fine of 5 to 10 Rix-dollars, to be levied accord-
ing to the nature and circumstances of the case. In the event
1 The text has, “when the voting is unequal ” (bij on gelijkheid van stemmen),
is obviously an error.
1858] THE GRONDWEf 391
van zaken en omstandigheden. Ingeval van onvermogen om de
bijdragen te kunnen leveren zal de Veldcornet die, overeenkomstig dat
onvermogen, regelen.
119. De Veldcornetten zullen eene lijst houden van de dienst-
pligtigen hunner wijken, en die lijst zoodanig inrigten, dat daaruit
blijkt, wie ter handhaving van orde, bedoeld in letter a, art. 105,
moet opgeroepen worden, opdat de diensten van de manschappen even-
redig onder hen verdeeld worden.
120.* De krijgsofficieren, die zonder voldoende reden bedanken of
weigeren de op hun uitgebragte keuze, of de hen opgedragen betrekking
te aanvaarden, zullen de volgende boeten moeten voldoen, te weten :
Een Veldcornet, Rds. 25,
Een Commandant, Rds. 100, en de
Commandant-Generaal, Rds. 200.
121. De Commandant-Generaal heeft zitting in den Uitvoerenden
Raad als lid van denzelven.
122. In het veld heeft de Commandant-Generaal het oppertoezigt
over krijgsammunitie van den Staat. [Zie verder daaromtrent art. 8 1 .]
123. De Commandanten en Veldcornetten voldoen aan de bevelen
der Landdrosten, voor zoo verre zij volgens de bepaling der wetten,
omtrent de regterlijke administratieve Magt daarmede in aanmerking
komen.
124. Van de overtredingen vermeld in de artikelen 109, no, 118,
of inability to make the contributions, the Field-cornet shall
arrange such contributions according to the extent of such
inability.
119. The Field-cornets shall keep a list of those liable to
military service in their respective wards, and shall arrange
such list in such a manner as to show who must be called up
for the preservation of order in terms of section a of art. 105,
in order that the services of the men may be equally divided.
120.* The military officers, who, without sufficient cause,
shall resign or decline to accept the election fixed upon them,
or to enter on the duties of the office assigned to them, shall be
liable to pay the following fines, to wit :
A Field-cornet, 25 Rix-dollars,
A Commandant, 100 Rix-dollars, and the
Commandant-General, 200 Rix-dollars.
121. The Commandant-General shall have a seat in the
Executive Council as a member of the same.
122. In the field the Commandant-General shall have the
chief supervision of the war material of the State. [See further
art. 81 hereon.]
123. The Commandants and Field-cornets shall comply
with the commands of the Landdrosts in so far as they shall be
subject to the administrative judicial authority according to
the provisions of the laws relating thereto.
124. Of the non-compliance mentioned in articles 109, no,
392 SOUTH AFRICAN REPUBLIC [1858
en i2o, J wordt door de officieren kennis gegeven aan de Landdrosten
hunner districten, die voor de invordering der boeten zullen zorg
dragen.
125.* Alle buitgemaakte goederen worden gelijkelijk onder de
dienstdoende burgers, die in het veld geweest zijn verdeeld ; met het
voorbehoud echter van den aftrek :
1. Van de vergoeding naar evenredigheid van schaden, door
de uitvoering van een commando veroorzaakt, aan
wagens, paarden en trekvee ;
2. Van de oorlogskosten door het Gouvernement uitbetaald ;
3. Van een onderstand en belooning voor zwaar gekwetste
burgers ; en
4. Van een fonds, tot ondersteuning van weduwen en weezen
der gesneuvelde burgers.
126. Eene maand na afloop van een commando, zal de President
van den Uitvoerenden Raad zorg dragen, dat door tusschenkomst
der Landdrosten aan de zwaar gekwetsten, de weduwen en weezen der
gesneuvelden, het hun in het vorig artikel toegewezen deel uit den
buit toekome.
OVER DE REGTERLIJKE MAGT EN DE REGTSBEDEELING.
i27. a De regterlijke magt wordt uitgeoefend door Landdrosten,
118, and I2O, 1 notice shall be given by the officers to the Land-
drosts of their districts, who shall see to the collection of the
fines.
125.* All goods taken as spoil shall be equally divided
among the burghers who were on active service in the field ;
save and except the following deductions :
1. Of the amounts due as compensation in due pro-
portions for damage done to wagons, horses and
draught cattle by causing the commandos to
operate ;
2. Of the war expenses defrayed by the Government ;
3. Of maintenance and compensation for wounded
burghers ; and
4. Of a fund for the support of the widows and orphans
of burghers killed in the war.
126. One month after the termination of a commando the
President of the Executive Council shall see to it that, through
the medium of the Landdrosts, the seriously wounded and the
widows and orphans of those killed, shall receive the portion
of the spoil assigned them in the last preceding article.
ABOUT THE JUDICIAL POWER AND THE ADMINISTRATION OF
JUSTICE.
127.2 The judicial power shall be exercised by Landdrosts,
1 Of these numbers 109, 1 18, and 120 were omitted from the 1889 Grondwet,
art. 113.
a Vide art. 1 15 of the 1889 Grondwet, below.
1858] THE GRONDWET 393
Heemraden en Gezworenen, met toevoeging van Klerken en Geregts-
boden, en zoo noodig met den bijstand der Veldcornets.
128. De Landdrosten worden door den Uitvoerenden Raad aan
het volk voorgedragen ; telkens wanneer de plaats van Landdrost
vacant is, zal de Uitvoerende Raad i of 2 personen aan het publiek
voorstellen, om uiterlijk binnen den tijd van twee maanden hunne
goed-of afkeuring daarover aan den Uitvoerenden Raad schriftelijk
in te leveren. De Landdrosten moeten twee 1 jaren stemgeregtigde
burgers, lidmaten der Nederduitsch – Hervormde Gemeente * zijn,
geen onteerend vonnis ten hunnen laste gehad, en den ouderdom van
30 jaren bereikt hebben, en vaste goederen binnen het grondgebied
dezer Republiek bezitten.
129.* De Heemraden worden door het Hof van Landdrost en
Heemraden gekozen, onder kennisgeving daarvan aan den Uitvoe-
renden Raad. Telkens wanneer een Heemraad gekozen wordt, zal die
keuze eene maand ter goed-of afkeuring aan het publiek worden bekend
gemaakt. Zij worden na de goedkeuring aangesteld, voor den tijd van
twee jaren, en zijn bij aftreding herkiesbaar. Zij moeten twee jaren
stemgeregtigde burgers, lidmaten van de Nederduitsch-Hervormde
Gemeente zijn, geen onteerend vonnis ten hunnen laste gehad, en den
ouderdom van 30 jaren bereikt hebben.
Heemraden and Jurors, with the addition of Clerks and
Messengers of the court, and, if necessary, with the assistance
of the Field-cornets.
128. The Landdrosts shall be proposed to the people by the
Executive Council ; whenever the office of Landdrost shall
become vacant, the Executive Council shall propose i or 2
persons to the public, who shall, within two months at the
latest, hand in their approval or disapproval to the Executive
Council in writing. The Landdrosts shall be burghers possess-
ing the franchise for two x years, shall be members of the Dutch
Reformed Congregation, 2 shall not have had any dishonouring
sentence passed against them, shall have reached the age of
30 years, and shall be possessors of immovable property within
the territory of this Republic.
129.* The Heemraden shall be chosen by the Court of
Landdrost and Heemraden while giving notice thereof to the
Executive Council. Whenever a Heemraad shall have been
chosen, such choice shall be notified to the public during one
month for their approval or disapproval. They shall, after
such approval, be appointed for the term of two years, and on
leaving office they shall be eligible for re-election. They shall
have been burghers possessing the franchise for two years,
members of the Dutch Reformed Congregation, shall not have
had any dishonouring sentence passed against them, and shall
have reached the age of 30 years.
1 This was altered to one year by resolution of the Volksraad, dated Sept.
1858. Locale Wetten der Z.A. Rep. I. 104.
2 The 1889 Grondwet, art. 1 16, said : ” members of a Protestant Church.”
394 SOUTH AFRICAN REPUBLIC [1858
130. De Landdrosten zullen tevens v66r de aanvaarding hunner
betrekking, twee door den President van den Uitvoerenden Raad
goedgekeurde borgen moeten steilen ; te zamen ten bedrage van Rds.
5,333, 2, 4 elke borg voor 2,666, 5, 2 Rds., ter verzekering van alle
geldelijke administration, die aan hen zullen worden toevertrouwd.
Die borgen moeten vaste en onbelaste eigendommen in deze Republiek
bezitten.
131. De gezworenen zullen stemgeregtigde burgers zijn, geen ontee-
rend vonnis ten hunnen laste gehad, en den ouderdom van 30 jaren
bereikt hebben.
132.* De Landdrosten zullen met de Heemraden eene lijst opmaken,
van de inwoners hunner districten, die als gezworen kunnen opgeroepen
worden ; en zoodanig dat de oproeping bij beurten gelijk onder hen
verdeeld worden.
133. De oproeping der gezworenen geschiedt zoodanig in tijds dat
zij buiten de reis drie vrije dagen tot hunne beschikking hebben.
134.* De klerken zullen stemgeregtigde burgers wezen, geen ontee-
rend vonnis ten hunne laste gehad, en den ouderdom van 21 jaren
bereikt hebben, zij en de geregtsboden worden op voordragt van den
Landdrost door den President van den Uitvoerenden Raad aangesteld.
Zij moeten drie maanden van te voren kennis geven voordat zij kunnen
ontslagen worden.
135. De verkozenen tot Landdrosten en Heemraden zullen, indien
130. The Landdrosts shall also, previous to their entering
on the duties of their office, give two sureties who must be
approved of by the President of the Executive Council,
together for the amount of 5,333. .2. .4 Rix-dollars and each
surety for 2,666 . . 5 . . 2 Rix-dollars for the security of all monetary
administration which may be entrusted to their care. Such
sureties must be in possession of unencumbered immovable
property in this Republic.
131. The jurors shall be burghers possessing the franchise,
shall have had no dishonouring sentence passed against them,
and have reached the age of 30 years.
132.* The Landdrosts, with the Heemraden, shall frame a
list of the inhabitants of their districts who are liable to be
summoned as jurors, in such a manner that the summoning
shall fall evenly on all the inhabitants in turn.
133. The summoning of jurors shall take place in time and
in such a manner that they shall have three days, exclusive of
the time required for their journey, at their disposal.
134.* The clerks shall be burghers possessing the fran-
chise, shall not have had any dishonouring sentence passed
against them and shall have reached the age of 21 years. They
and the messengers of the court shall be appointed by the
President of the Executive Council on the recommendation of
the Landdrost. They must give three months’ notice before
they can be discharged.
135. Those elected as Landdrosts and Heemraden shall,
1858] THE GRONDWET 395
zij bedenkingen tegen de op hen uitgebragte keuze meenen te moeten
maken, die bedenkingen binnen de eerste 30 dagen, nadat die keuze op
hen gevallen is, de verkozene tot Landdrost, aan den President en die
tot Heemraden verkozen is, aan het Hof 1 inzenden.
136. Indien zij binnen dien tijd geen bedenkingen inzenden, dan
worden zij beschouwd die betrekkingen te aanvaarden.
137.* De Heemraden die zonder voldoende redenen voor de ver-
kiezing bedankt, zal vervallen in eene boete van Rds. 25.
138. De gezworene die niet voldoet aan de oproeping, vermeld in
art. 132, wordt beboet met Rds. 100, tenzij hij redenen van verschoo-
ning kan bijbrengen, voorzien in art. 37.
139. De Landdrosten leggen v66r het aanvaarden hunner betrek-
king den volgenden eed, in handen van den President en de leden van
den Uitvoerenden Raad af ; en de Heemraden denzelfden eed, in handen
van het Hof van Landdrost en Heemraden^
” Ik beloof en zweer plegtig trouw aan het volk en de wetten
dezer Republiek, in mijne betrekking en ambt regt-
vaardig, billijk, zonder aanzien des persoons, overeen-
komstig de wetten, en naar mijn beste kennis en geweten
te zullen handelen ; van niemand eenige gift of gunst
te zullen aannemen, wanneer ik vermoeden kan dat deze
gedaan of bewezen zou worden om mij in mijne uit-
spraak of handeling ten voordeele van den gever of
begunstiger over te halen ; buiten mijne betrekking
if they desire to object to the choice fallen on them, send in
such objections within 30 days after their election, the elected
Landdrost to the President, and the elected Heemraden to the
Courts
136. If they make no objections within such time, then
they shall be regarded as willing to accept the office.
137.* The Heemraden who resign without sufficient cause
shall be liable to a fine of 25 Rix-dollars.
138. Any juror who does not comply with the summons,
as set forth in art. 132, shall be liable to a fine of 100 Rix-
dollars, unless he is able to assign such reasons for exemption
as are provided for in art. 37.
139. The Landdrosts shall, before entering on the duties of
their office, take the following oath before the President and
members of the Executive Council, and the Heemraden shall
take the same oath before the Court of Landdrost and Heemraden : x
” I promise and solemnly swear fealty to the people and
laws of this Republic in my position and office, to
act justly, equitably, and without respect of
persons, according to law, to the best of my
knowledge and according to the dictates of my
conscience ; that I shall not accept any gift or
favour from any person when I can suspect that
the same might be made or bestowed to influence
me in my decision or acts in favour of the giver
1 The italicised words were omitted from the 1889 Grondwet.
396 SOUTH AFRICAN REPUBLIC [1858
als regter te zullen gehoorzamen volgens de wet aan de
bevelen der boven mij gestelden, en in het algemeen
niets anders te beoogen dan de handhaving van wet, regt
en orde, tot bevordering van den bloei, de welvaart en
de onafhankelijkheid van land en volk.”
140. De gezworenen zullen, v66r dat zij zitting in het Hof van
Landdrosten en Heemraden l nemen, den volgenden eed in handen van
Landdrost en Heemraden l afleggen :
[De eed is na genoeg zooals die bij art. 139.*]
141.* De klerken zullen voor de aanvaarding hunner betrekking
in handen van den Landdrost den volgenden eed afleggen :
[Eed weggelaten.]
142.* [De eed der geregtsboden.]
143.* In ieder district zullen de volgende geregtshoven zijn, als :
Een hof van den Landdrost.
Een hof van den Landdrost, en 6 of ten minste 4 Heemraden. 3
En daarboven :
Een hoog-geregtshof, mede voor het geval bedoeld in art. 34
en 53, 6 zamengesteld uit 3 Landdrosten * en 12 ge-
zworenen.
or bestower ; outside my office as judge, to obey
the commands of those placed above me, accord-
ing to law ; and in general to aim at nothing but
the preservation of law, justice and order, for
the promotion of the prosperity, welfare and in-
dependence of the country and the people.”
140. The jurors shall, before taking their seats in the Court
of Landdrost and Heemraden, 1 take the following oath before the
Landdrost and Heemraden : l
[The oath is rather similar to the one prescribed in art.
I39- 2 ]
141.* The clerks shall, before entering on the duties of
their post, take the following oath before the Landdrost :
[Oath not copied.]
142.* [Oath prescribed for the messengers of the Court.]
143.* In every district there shall be the following Courts
of Justice :
A Court of the Landdrost.
A Court of the Landdrost and 6 or at least 4 Heemraden. 8
And above these :
A High Court of Justice consisting of 3 Landdrosts 4
and 12 Jurors intended also for the purpose
indicated by arts. 34 and 53. 6
1 The italicised words were omitted from the 1889 Grondwet.
3 Further provisions were added by resolution of the Volksraad, dated
Sept. 1858. Vide below, p. 418.
8 Law No. 3, 1 88 1, in describing the various courts of law made no mention
whatever of the Court of Landdrost and Heemraden. It was resolved in 1873
to have six Heemraden in each of these courts.
4 This was altered to ” 2 or 3 Landdrosts ” by resolution of the Volksraad,
dated Sept. 1858.
This Court was abolished in 1881.
1858] THE GRONDWET 397
De uitspraak van dat hof zal uiteindelijk beslissend wezen.
De Landdrost, die het vonnis in eersten aanleg heeft geveld,
zal geen zitting in het hooge geregtshof hebben ; maar
bij de behandeling der zaak moeten tegenwoordig zijn.
Bij al de genoemde geregtshoven, zal een klerk en geregtsbode
aanwezig zijn.
144*. Het hoog geregtshof, bedoeld by art. 143, zal ten minste
tweemaal in het jaar de districten der Republiek, waar crimineele zaken
zijn, bezoeken. Uitgezonderd die districten waar geen crimineelen
zaken, en minder dan 5 civiele zaken te behandelen zijn. Zijn er
minder dan 5 civiele zaken in een district te behandelen, dan zullen
deze kunnen voorkomen op de naastbijgelegene plaats, waar dat hoog
geregtshof zitting moet houden. 1
145. De Veldcornetten zullen de geschillen tusschen de inwoners
hunner wijken, zooveel mogelijk bijleggen, en het voeren van processen
voorkomen. Tot dat einde wordt een ieder geregtigd om dengeen met
wien hij in geschil is, op een door den Veldcornet te bepalen tijd voor
dezen te ontbieden. Door partijen zullen de kosten, door den Veld-
cornet te maken, volgens tarief betaald worden.
146. * Geen eisch zal door eenig Hof in aanmerking genomen worden,
zonder dat de eischer eene behoorlijke dagvaarding, door den Land-
drost uitgereikt, aan zijne tegenpartij door den geregtsbode heeft doen
toekomen.
The decision of this Court shall be final and decisive.
The Landdrost who has pronounced sentence in the
first instance shall have no seat in the High
Court of Justice, but shall, nevertheless, attend
during the hearing of the case.
To each of the above Courts there shall be attached a
clerk and messenger.
144.* The High Court of Justice, mentioned in art. 143,
shall at least twice a year visit the districts of the Republic
where there are criminal cases, those districts, however, ex-
cepted where there are no criminal cases and less than 5 civil
cases to be tried. If in any district there are less than 5 civil
cases to be tried, then these may be brought up at the nearest
centre where the High Court must hold a session. 1
145. The Field-cornets shall, as far as possible, settle the
differences between the inhabitants of their wards, and thus
avoid litigation. For that purpose any one is entitled to
summon a person, with whom he is in dispute, before the
Field-cornet at a time to be appointed by the latter. The
parties shall pay the expenses incurred by the Field-cornet,
to be fixed according to tariff.
146.* No Court shall take cognizance of any claim where
the plaintiff has not taken out a proper summons, issued by
the Landdrost, and served by the messenger of the Court on
the opposite party.
1 Further provisions were added by resolution of the Volksraad, dated
Sept. 1858. Vide below.
398 SOUTH AFRICAN REPUBLIC [1858
147.* [De kosten dier dagvaarding.j
148.* [Alle dagvaardingen om voor de geregtshoven te verschijnen,
moeten in tijds aan de gedaagden toegezonden worden.]
149. Alle vonnissen, zoo in burgerlijke als in lijf straff elijke zaken,
worden in het openbaar uitgesproken en ten uitvoer gelegd, in naam
van het volk der Zuid-Afrikaansche Republiek. De lijfstraffen aan
blanke misdadigers in deze Republiek op te leggen, zullen zijn :
Gevangenschap ;
Dwang-arbeid, met of zonder ijzers, naar den aard der zaak ; l en
De Dood.
Geen blanke zal tot slagen aan den lijve kunnen worden veroor-
deeld.
150.* In alle burgerlijke zaken zal uitspraak gedaan en vonnis
geveld worden door den Landdrost, omtrent eischen wier bedrag
vijf honderd Rds., of minder zijn ; wanneer evenwel de vorderingen
uit schuldbewijzen of acceptatien bestaan, zal hij geregtigd zijn uit-
spraak te doen en vonnis te vellen over zaken van hooger bedragen,
niet te bovengaande Rds. 5000. Door het Hof van Landdrost en
Heemraden, wanneer de vorderingen meer dan Rds. 500, en de schuld-
bewijzen of de acceptatien hooger dan Rds. 5000 zijn.
151.* Van alle vonnissen in eersten aanleg geveld en waarbij eischer
en gedaagde tegenwoordig waren, zal zijn beroep of appel, te weten :
147.* [The fees for such summons.]
148.* [All summonses to appear before the Courts shall be
served on the defendant in time.]
149. All sentences in civil as well as criminal cases shall
be delivered and executed in public in the name of the people
of the South African Republic. The criminal punishments
to which white offenders shall be liable in this Republic shall
be:
Imprisonment,
Hard labour, with or without chains, according to the
nature of the case, 1 and
Death.
No white person shall be condemned to undergo corporal
punishment.
150.* In all civil cases the decision shall be given and the
judgment passed by the Landdrost in cases where the claim
is for 500 Rix-dollars or less ; but should those claims arise
from acknowledgments of debt or acceptances, he shall be
authorised to decide and pass judgment in cases involving
larger sums, but in none exceeding 5000 Rix-dollars. The
decision shall be given and judgment passed by the Court of
Landdrost and Heemraden when the claim is for a higher
sum than 500 Rix-dollars, and the acknowledgment of debt
or the acceptance for a greater amount than 5000 Rix-dollars.
151.* From all judgments delivered in the first instance,
and where the plaintiff and defendant were present, appeal
shall be allowed, to wit :
1 The 1889 Grondwet, art. 127, added ” transportation or banishment.”
1858] THE GRONDWET 399
Van vonnissen uitgesproken door het Hof van den Landdrost,
voor het Hof van Landdrost en Heemraden ; van het
Hof van Landdrost en Heemraden, voor het Hoog
geregtshof bedoeld in arts. 143 en 144, mits het beroep of
appel binnen den tijd van acht dagen na de uitspraak
van het vonnis, opgegeven wordt aan den Landdrost
van het hof, en daarvoor de na te melden betaling,
bedoeld in art. 153, gedaan zij.
152.* [Kosten van de vonnissen der geregtshoven.]
153. [De eischers in beroep zullen ook betalen.]
1 54. [Betaling voor afschriften der stukken door partijengevorderd.]
155*. [De verdiensten van den geregtsbode.]
1 56. [Onvermogenden kunnen van de betaling vrijgesteld worden.]
157. [De zittingen der geregtshoven zullen gehouden worden op
zekere uren.]
158.* Ingeval van wettige verhindering van den Landdrost zal
zijne be trekking door een der Heemraden worden waargenomen, die
ook alsdan zijne voorzittersplaats zal bekleeden.
159.* Voor ieder district worden gekozen zes Heemraden, van
welke ten minste twee op het dorp moeten woonachtig zijn. De Land-
drost met vier Heemraden zullen een voltallig Hof uitmaken.
1 60.* Is een Landdrost of Heemraad niet op den bij art. 157 bepaal-
den tijd aanwezig of voldoet een Heemraad niet aan de oproeping van
den Voorzitter van het Hof, dan wordt bij beboet met Rds. i tot 50,
From judgments pronounced by the Landdrost’s Court
to the Court of Landdrost and Heemraden ;
from the Court of Landdrost and Heemraden
to the High Court of Justice mentioned in arts.
143 and 144 ; provided the appeal be notified
to the Landdrost within eight days after judg-
ment shall have been given, and after payment
of the amount to be stated hereinafter in art. 153
has been made.
152.* [The costs of the judgments of the Courts.]
153. [The appellants shall also deposit sums for an appeal.]
154. [Charges for copies of papers required by the parties.]
155.* [Salary of the messenger of the Court.]
156. [Those unable to pay may be exempted from costs of
litigation.]
157. [The sittings of the Courts shall be held at fixed
times.]
158.* In case a Landdrost is prevented for lawful reasons
from performing his duties, his office shall be filled by one of
the Heemraden, who shall also for the time take his place as
chairman.
159.* For every district six Heemraden shall be elected, of
whom at least two shall reside in the village. The Landdrost
and four Heemraden shall constitute a full Court.
160.* A Landdrost or Heemraad not being present at
the appointed time fixed by art. 157, or a Heemraad not
complying with the call of the Chairman of the Court, shall be
400 SOUTH AFRICAN REPUBLIC [1858
naar den aard der zaak. Voor gegronde redenen zullen aangenomen
worden dezulke die vermeld zijn onder art. 38.
161. [De klerkkan bij niet nakoming van zijn plicht gesuspendeerd
worden.]
162.* De Heemraden en Gezworenen genieten Rds. 4 voor iederen
dag dat zij de zitting der Geregtshoven bijwonen.
163.* De in art. 143 genoemde Geregtshoven zullen tevens in
eersten aanleg kennis nemen, uitspraak doen en vonnis vellen in alle
lijfstraffelijke zaken, te weten :
Het Hof van den Landdrost in zaken van overtredingen, rust-
verstoringen, enz., waaromtrent geen hooger straffen
bepaald zijn dan 3 maanden gevangenis met of zonder
geldelijke boeten, tot een beloop van Rds. 100. Het
Hof van Landdrost en Heemraden in zaken van wange-
drag, waaromtrent de straflfen niet hooger loopen dan
drie jaren gevangenis, met of zonder dwangarbeid en
geldelijke boete, tot beloop van Rds. 500 ; en het Hooge
Geregtshof in zaken van misdaad en anderen, waar-
omtrent hooger straffen dan de hier vermelde moeten
uitgesproken worden.
164. De Geregtshoven zullen bij de bepaling der straffen in het oog
houden, dat daar dezelfde straf voor den een ligter of zwaarder kan
fined with from i to 50 Rix-dollars according to the nature of
the case. As well-founded grounds of excuse shall be accepted
those mentioned in art. 38.
161. [A clerk who does not fulfil his duties is liable to be
suspended.]
162.* The Heemraden and Jurors shall receive 4 Rix-
dollars for each day on which they attend the sittings of the
Courts of Justice.
163.* The Courts of Justice mentioned in art. 143 shall
also in the first instance take cognizance of, pass judgment
and give sentence in criminal cases, to wit :
The Landdrost’s Court in cases of transgressions, breaches
of the peace, etc., with respect to which no higher
punishments have been prescribed than 3 months’
imprisonment, with or without a fine amounting
to 100 Rix-dollars. The Court of Landdrost
and Heemraden in cases of misdemeanour, with
respect to which the punishments prescribed do
not exceed three years’ imprisonment, with or
without hard labour and a fine to the amount of
500 Rix-dollars ; and the High Court of Justice
in case of misdeeds and in other cases with
respect to which more severe punishments than
those herein mentioned must be inflicted.
164. The Courts of Justice shall, in passing sentence, bear in
mind, that as the same punishment may be lighter or more severe
1858] THE GRONDWET 46!
zijn dan voor den ander, het de bedoeling van de wetgever is, om een
ieder wegens gelijke schending van wet ook even zwaar te bestraffen,
en dat mitsdien de straffen dienovereenkomstig bepaald moeten worden.
165.* [Over het verminderen van straffen door de Uitv. Raad.]
1 66.* [De vonnissen bij afwezigheid van eischer of verweerder in
eersten aanleg uitgesproken mogen niet dadelijk worden uitgevoerd.]
167.* [De Landdrost kan op verzoek van de schuldeischer voor-
lopig beslag leggen op de goederen van verweerder.]
1 68. De Geregtshoven zullen de kennisneming der zaken zooveel
mogelijk trachten te bespoedigen, en vervolgens, zoodra mogelijk,
uitspraak in dezelve doen.
169. [De Klerk of de Landdrost zal een register houden van alle
zaken.]
170.* [Alle vonnissen, magtigingen en oproepingen zullen door den
Landdrost ondertekend worden.]
OVER DE ADMINISTRATIVE MAGT OF DE LANDS-AMBTENAREN.
171. De administrative magt, of het inlandsche bestuur, ontleent
haar gezag van den Uitvoerenden Raad, en staat onder de bevelen
van den President en de leden van den Uitvoerenden Raad.
172. 1 Zij is in handen van Landdrosten en Heemraden, met toe-
for one person than for another, it is the intention of the legis-
lator to punish every one with equal severity for the same
contravention of the law, and that therefore the punishments
must be regulated according to this principle.
165.* [About the mitigation of sentences by the Executive
Council.]
166.* [Sentences pronounced in the first instance in the
absence of plaintiff or defendant shall not be executed im-
mediately.]
167.* [The Landdrost may, on the application of a creditor,
grant a provisional attachment on the debtor’s property.]
168. The Courts shall as far as possible endeavour to ex-
pedite the hearing of cases, and shall give a decision thereon
as soon as possible.
169. [The Clerk or the Landdrost shall keep a register of
all cases.]
170.* [All judgments, decrees and summonses shall be
signed by the Landdrost.]
ABOUT THE ADMINISTRATIVE POWER OR THE PUBLIC
OFFICIALS.
171. The administrative power or internal management
of the State derives its authority from the Executive Council,
and is subject to the commands of the President and members
of the Executive Council.
172. 1 It is in the hands of Landdrosts and Heemraden,
1 The 1889 Grondwct substituted the following article : ” 137. It is in the
hands of such officials as are appointed by law.”
26
402 SOUTH AFRICAN REPUBLIC [1858
voeging van Klerken, Marktmeesters Schutmeesters, Taxateurs en
Inspecteurs, en wordt bijgestaan door Commandanten en Veldcor-
netten.
173. Het grondgebied is voor dat bestuur verdeeld in districten,
waartoe behooren afdeelingen en steden of dorpen.
174. leder district wordt bestuurd door een Landdrost, zes Heem-
raden, met bijvoeging van een Klerk, zoveel Markt- en Schutmeesters als
er steden of dorpen in het district zijn, en zooveel Taxateurs en Inspecteurs
als thans daartoe zijn, of in het vervolg zullen warden aangewezen. 1 De
Commandanten en Veldcornetten der afdeelingen staan, wat dat
bestuur aanbelangt, ten dienste van voornoemde Lands-ambtenaren.
175. Alle publicatien worden in de Staatscourant gepubliceerd ,
en door de Veldcornetten in hunne afdeelingen, door bijeenroeping
van de inwoners dier afdeelingen, kenbaar gemaakt.
176. Alle ambtenaren zijn verpligt, om de bij hen ontvangen
wordende ambtsbrieven zoodra mogelijk te beantwoorden en aan
der zelver in houd te voldoen.
177. [De pligten der Veldcornetten. 2 ]
i78*-i8i.* [Over markten en Marktmeesters.]
182.* [Hoe Venduafslagers worden toegelaten.]
183.* [De bepaling vervat in art. 24 der 33 Artikelen, omtrent
assisted by Clerks, Marketmasters, Poundmasters, Appraisers,
and Inspectors, and supported by Commandants and Field-
cornets.
173. In order to carry out this form of management the
territory is divided into districts composed of wards, and towns
or villages.
174. Each district shall be managed by a Landdrost,
six Heemraden assisted by a Clerk, as many Marketmasters
and Poundmasters as there are towns or villages, and as many
Appraisers and Inspectors as have already been appointed or
may be appointed hereafter.*- The Commandants and Field-
cornets of divisions shall, as regards this administration,
render their services to the public officials above mentioned.
175. All publications shall be inserted in the Government
Gazette, and made known by the Field-cornets in their respective
divisions by calling together the inhabitants thereof.
176. It is the duty of all officials to answer any official
letters received by them as speedily as possible, and to act in
accordance with the matter thereof.
177. [The duties of Field-cornets. 2 ]
!78.*-i8i.* [About Markets and Marketmasters.]
182.* [The manner of admitting Auctioneers.]
183.* [The provision contained in art. 24 of the 33 Articles,
1 The 1889 Grondwet, art. 139, substituted for the italicised words, the
following : ” assisted by such officials as shall be associated with him by law.”
Vide also the 1889 Grondwet, arts. 140/3, below.
3 See the instructions issued to Field-cornets, p. 410, infra.
1858] THE GRONDWET 403
het openen van brieven, is bij deze voor vervallen verklaard. Straf
bepaling voor het openen van eens anders brieven.]
184.* [Er zullen zijn Weesheeren en een Weeskamer ter plaatse
waar de zetel van het Gouvernement is.]
185. [Togtgangers van elders ingekomen moeten een licentie van
een Landdrost bekomen.]
1 86. Het zal niet toegelaten worden dat inkomende personen zich
in eenige onbewoonde streken gaan vestigen in deze Republiek, zonder
voorkennis en verlof van het Gouvernement van dezen Staat.
187. De Landdrosten worden * belast met het toezigt over stad of
dorp, benevens over alle ondergeschikte beambten, opdat alle zaken
in geregelde orde geschieden.
OVER DE GELD-MIDDELEN VAN DEN STAAT.
i88. 2 De inkomsten van den Staat zijn :
(a) De winsten op den verkoop van kruit, lood, tin, vuurstenen
en percussie-dopjes.
(&) Licentien aan Winkeliers, buitenlandsche Togtgangers,
Vendu-Afslagers en sterkendrank-verkoopers.
(c) Transport-gelden bij overdragt van vaste goederen.
(d) Heerenregten of regt van overdragt op den verkoop van
onroerende goederen.
about the opening of letters, is hereby repealed. Punishment
prescribed for opening the letters of others.]
184.* [There shall be Orphanmasters and an Orphan
Chamber at the seat of Government.]
185. [Itinerant traders coming from other countries shall
obtain licenses from a Landdrost.]
186. It shall not be permitted to persons entering the
Republic to settle in any uninhabited tracts of this Republic
without the knowledge and consent of the Government of this
State.
187. The Landdrost is entrusted with the supervision of
the town or village, 1 also of the inferior officials, in order that
all matters may be conducted in an orderly manner.
ABOUT THE REVENUE OF THE STATE.
i88. 2 The Revenue of the State shall consist of :
(a) The profits of the sale of gunpowder, lead, tin,
flints, and percussion caps.
(b) Licenses to shopkeepers, itinerant foreign traders,
auctioneers, and sellers of strong liquors.
(c) Fees of transfer of immovable property.
(d) Heerenrecht, or the right of transfer on the sale of
immovable property.
1 The 1889 Grondwet, art. 149, inserted here the words : ” where this is
not entrusted to the city or town management.”
2 The 1889 Grondwet merely substituted the following: ” 150. The
revenue of the State and the taxes of the inhabitants are regulated by law.”
464 SOUTH AFRICAN REPUBLIC [1858
(e) Salarisgeld of regt van overdragt, te betalen door den Vendu-
afslager, op den verkoop van roerende goederen.
(/) Hofkosten of vergoeding van kosten der Geregtshoven,
betaalde gelden voor appellen, dagvaardingen, enz.
(g) Boeten.
(h) Markt- en Schutgelden.
(t) Commissarisgeld van trouwen.
(j) Belasting door het volk te betalen.
189.* [De jaarlijksche licentien voor winkeliers, enz.]
190.* De Licentien tot het houden van een kantien, zal voor ieder
een verkrijgbaar zijn. 1 De prijs daarvan zal geregeld worden door den
Uitvoerenden Raad, naar den stand der dorpen waar die kantienen
zullen gehouden worden.
191.* [Hoeveel aan transport gelden en heerenregt te betalen is.]
192.* Vendu-afslagers zullen geen hooger salaris van Weesboedels
mogen nemen, dan van Rds. 5 ten honderd ; van alle salarissen zullen
zij moeten betalen Rds. 20 ten honderd, ten behoeve van ‘s Gouverne-
ments-kas.
193.* [Niemand in steden of dorpen zal zonder licentie sterke
drank mogen verkoopen.]
(e) Fees of transfer to be paid by auctioneers on the
sale of movable property.
(/) Court fees, or the payment of Court expenses,
moneys paid for appeals, summonses, etc.
(g) Fines.
(h) Market and pound fees.
(i) Commissary charges on marriages.
(j) Taxes to be paid by the people.
189.* [Amount of annual licenses to be paid by shopkeepers
and other traders.]
190.* Every person shall be at liberty to obtain a license
for the keeping of a canteen. 1 The fee for such license shall
be regulated by the Executive Council according to the
circumstances of the villages where such canteens are to be
kept.
191.* [The amounts to be paid as transfer duty and
heerenrecht.]
192.* Auctioneers shall not exact a higher commission
from orphans’ estates than 5 Rix-dollars per 100 ; out of all
commissions they shall pay 20 per cent, for the benefit of
the Government Treasury.
193.* [No person shall sell strong drink in the towns or
villages without a license.]
1 The absence of some such law during the Dutch administration at the
Cape and for several years of British rule had been felt as a serious grievance.
Here is a definite break with the very old practice of farming out privileges
to a very few people. The whole of this Grondwet is extremely interesting
when it is regarded in the light of the earlier history of the Cape. It dis-
carded, of course, all things disliked in the old Colony, and set up things
desired but unattainable there.
1858] THE GRONDWET 405
194. Alle plaatsen en gronden der ingezetenen worden door de
Regering der Republiek als vaste eigendommen gewaarborgd, met het
regt aan het Gouvernement gelaten om een algemeenen weg tot gebruik
der ingezetenen, over zulke plaatsen te bepalen, wanneer het vereischt
wordt. Jaarlijks zal door iederen eigenaar van elke plaats, tot onderhoud
van het Gouvernement, ter bescherming der eigendommen, eene belasting
betaald worden van niet minder dan Rds. 6 $ 2, en niet hooger dan
Rds. 40. De opbrengst zal door personen, daartoe geaitthoriseerd, door
taxatie worden bepaaM. 1
195.* [Applicaties voor eigendoms-plaatsen moeten binnen de 6
maanden ingediend worden.]
196.* [Wanneer de belastingen ingezameld zullen worden.]
197.* Alle personen boven den ouderdom van 21 jaren, benevens
de gehuwden, die geen plaatsen bezitten of slechts eene eigendoms-
plaats, volgens Art. 195, zullen jaarlijks Rds. 5 belasting betalen.
198. Al wie buiten de Republiek wonende onbewoonde gronden of
plaatsen in deze Republiek bezit, zal voor iedere plaats, zoolang deze
onbewoond is, jaarlijks eene dubbele belasting betalen.
199. De belasting voor ieder erf op de dorpen zal geregeld worden
door den Uitvoerenden Raad, en er zullen geen watergelden van het
publiek gevorderd worden.
200. * [Alle inkomende marktgelden vallen aan het Gouvernement.]
20 1. Alle opgemetene of geinspecteerde plaatsen zullen bij den
194. All farms and lands of the inhabitants are guaranteed
by the Government of the Republic as immovable property,
but reserving to the Government the right to construct, when
necessary, a public road over such farms for the use of the
inhabitants. Annually there shall be paid by every owner of
a farm, in support of the Government and for the protection
of such property, a tax of not less than 6.. 5.. 2 Rix-dollars,
and not more than 40 Rix-dollars. The exact amounts shall be
fixed by persons appointed for purposes of valuation.*
195.* [Applications for free-hold farms must be sent in
within 6 months.]
196.* [When the taxes shall be collected.]
197.* All persons above the age of 21 years, as well as all
married person, who either possess no farm, or only one free-
hold farm, according to art. 195, shall pay annually a tax of
5 Rix-dollars.
198. All who, while residing beyond the limits of the
Republic, yet possess unoccupied farms in this Republic,
shall annually pay double the amount of the tax on each farm,
as long as such farm remains unoccupied.
199. The tax on every erf 2 in the towns shall be regulated
by the Executive Council, and no water-rates shall be de-
manded of the public.
200.* [All market dues shall go to the Government.]
201. All surveyed or inspected farms shall, when sold,
1 The italicised words were omitted from the 1889 Grondwet, art. 151.
2 A plot of ground, with or without buildings, situated in a town or village.
406 SOUTH AFRICAN REPUBLIC [1858
verkoop, binnen den tijd van zes maanden moeten getransporteerd
zijn, en het heerenregt binnen den tijd van zes maanden betaald. . . .
202.* Alle vreemde inkomende handelaren, met sterke dranken
zullen niet mogen verkoopen, als op de markten, bij de halfaam.
203.* Alle personen die vreemde dranken buiten de dorpen willen
verkoopen, zullen daarvoor eene licentie moeten uitnemen, die Rds. 2
zal bedragen voor elke halfaam.
204.* Speculateurs in sterke dranken, zullen bij de groote maat
(niet kleiner dan de halfaam) drank mogen verkoopen, en zullen voor
hunne licentie betalen Rds. 80.
205. De belastingen door het volk te betalen, worden voldaan ten
kantore van de Landdrosten der districten. 1
206.* De Landdrosten zullen alle drie maanden de gelden, die zij
in kas hebben, overstorten in “s lands kas, ten kantore van den President
van den Uitv. Raad.
207.* De Uitv. Raad zorgt voor de geregelde drie maandelijksche
uitbetaling, van alle tractementen, en voor de behoorlijke voldoening
van alle uitgaven, ten behoeve van den Staat gedaan, door het afgeven
van schriftelijke aanwijzingen, tot betaling van ‘s lands kas.
208.* Zoo lang in de Republiek nog geene landsbank is opgerigt,
zal ‘s lands schatkist zijn, ten huize van den President van den Uit-
voerenden Raad, onder toezigt van de leden van dien Raad, welke
daaromtrent de meest geschikte maatregelen zullen nemen.
have to be transferred within six months, and the heerenrecht
be paid within 6 months. . . .
202.* All foreign traders coming into the Republic with
strong drink shall be prohibited from selling, except on the
market, by the half-aum.
203.* All persons who wish to sell foreign liquors outside
the towns shall have to take out a license for the purpose,
which shall amount to 2 Rix-dollars per half-aum.
204.* Speculators in strong liquors shall be allowed to
sell in large quantities (not less than a half-aum), and shall
pay for their license 80 Rix-dollars.
205. The taxes to be paid by the people shall be paid at
the offices of the Landdrosts of the districts. 1
206.* The Landdrosts shall, every three months, pay
over the moneys which they have in their chests into the
Public Treasury at the office of the President of the Executive
Council.
207.* The Executive Council shall provide for the regular
payment of all salaries every three months, and for the proper
settlement of all expenditure incurred on behalf of the State
by giving written drafts on the Treasury for payment therefrom.
208.* Whilst no Government Bank exists in the Republic,
the Public Treasury shall be at the residence of the President
of the Executive Council, under the supervision of the members
of the Council, who shall take the most suitable measures in
regard thereto.
1 The 1889 Grondwet, art. 1 55, added the words : ” where no other officials
have been appointed by law.”
1858] THE GRONDWET 407
209*. Geene uitgaven kunnen voor rekening van den Staat gedaan
of gebragt worden, dan met goedkeuring of op last van den Uitvoeren-
den Raad, tenzij dat de uitgave bij de wet bepaald, of tot uitvoering
van de wet benodigd zij.
210.* Bij de taxatie der belasting voor plaatsen, zullen twee per-
sonen tot dat einde in ieder district aangesteld worden, die met den
Veldcornet van de wijk de plaatsen der inwoners zullen taxeren, volgens
art. 194. De Taxateurs zullen op hunne eigene plaats geen stem
hebben, evenmin de Veldcornet op zijn plaats ; doch zal zulks aan de
onpartijdige leden der commissie overgelaten worden.
211,.* De Taxateurs zullen van hunne werkzaamheden schriftelijk
verslag doen aan den Uitvoerenden Raad, van de namen, enz. der
plaatsen, door hen getaxeerd in elk der wijken.
212.* [Taxateurs te handelen op instructie van den Uitv. Raad.]
213.* [Klagten tegen de taxatie bij den Landdrost te worden
gedaan.]
214.* Geen ongeinspecteerde plaatsen zullen door de Taxateurs
getaxeerd worden.
215. Alle ongeinspecteerde plaatsen die onder request staan zullen
door de Taxateurs getaxeerd worden.
216. Ieder, die eigendommen bezit, en het verkiest, zal buiten de
Inspecteurs ook gebruik kunnen maken van een Landmeter, tot op-
meting en in kaart brengen zijner gronden.
2 1 7. * Geen Landmeter zal toegelaten worden om gronden of plaatsen
209.* No payments can be made on account of the State
otherwise than by the approval or command of the Executive
Council, unless such payment is fixed by law, or required in
the execution of the law.
210.* For the assessment of the tax on farms, two persons
shall be appointed in each district, who, with the Field-cornet
of the ward, shall assess the tax on the farms of the inhabitants,
according to art. 194. The Appraisers shall have no vote with
respect to their own farms, nor the Field-cornet with respect
to his farm, but shall leave the decision to the disinterested
members of the commission.
211.* The Appraisers shall render to the Executive Council
an account in writing of the names, etc. of the farms valued
by them in each ward.
212.* [Appraisers to act on instructions issued by the
Executive Council.]
213.* [Complaints regarding the valuations may be made
to the Landdrosts.]
214.* No uninspected farms shall be valued by the ap-
praisers.
215. All uninspected farms for which applications have
been made shall be valued by the appraisers.
216. Every person possessing property, and so desiring,
shall, besides the Inspectors, also have at his disposal a
Surveyor to survey and make diagrams of his lands.
217.* No Land-surveyor shall be permitted to survey lands
408 SOUTH AFRICAN REPUBLIC [1858
te meten, die niet zijne behoorlijke documenten aan den President van
den Uitv Raad zal vertoond hebben, welke, na dezelve ingezien en
correct bevonden te hebben, zijne aanstelling zal bekrachtigen.
218. Geen landsambtenaar zal het regt hebben om zaken voor de
geregtshoven te verdedigen, als voor zichzelven.
219.* Alle hangende zaken, die nog onbeslist gebleven zijn, zullen
volgens de oude landswetten behandeld, doch door de nieuw aange-
stelde regters ter beslissing beoordeeld worden.
220. Alle vroegere wetten en besluiten, strijdig met den inhoud
dezer wetten, worden geheel buiten werking gesteld, uitgezonderd in de
gevallen vermeld in art. 219.
BlJLAGE. 1 *
221-232. [Tractementen van Volksraadsleden, van den President,
den Commandant -Generaal, leden van den Uitv. Raad, Gouvernements-
secretaris, Landdrosten, Leeraren, 2 Commandant en, Veldcornetten, enz.]
De Comite-Raad de Nieuwe Grond- of Landswet eenparig goedge-
‘ keurd hebbende, heeft besloten dezelve op Dingsdag, den 16 den
Februarij eerstkomende, aan de alhier beroepen Volksraads-vergade-
ring voor te leggen, ter aanneming of af keuring van dezelve, om deze
alsdan daarna aan het publiek bekend te maken, ten einde hetzelve in
de gelegenheid te stellen, om indien zij eenig wettig bezwaar tegen een
or farms, unless he shall have shown his papers of qualification
to the President of the Executive Council, who, after having
examined the same and found them in order, shall confirm
his appointment.
218. No public official shall have the right to defend
cases before the Courts of Justice, except on his own behalf.
219.* All pending cases, which are still undecided, shall
be dealt with according to the old laws of the country, but
shall be adjudicated upon by the newly appointed judges.
220. [Conflicting laws repealed.]
ADDENDUM. 1 *
221-232. [Salaries and allowances of members of the
Volksraad, of the President, the Commandant-General, mem-
bers of the Executive Council, the Government Secretary,
Landdrosts, Ministers of religion, 2 Commandants, Field-
cornets, etc.]
The Committee Council, having unanimously approved the
new Grondwet or constitutional law of the land, has decided to
lay the same before the Volkrsaad at its meeting appointed to
be held here on Tuesday the i6th February next, for its ap-
proval or rejection, and thereupon to make it known to the
public in order to enable the people to make any objections
1 The salaries and allowances of officials were changed from time to
time and were placed on the annual estimates and submitted to the Volksraad.
The travelling expenses of officials were fixed according to a tariff laid down
by Law No. 3, 1882.
8 A provision allowing 3000 Rds. p.a. to each minister was repealed by
resolution dated 28th Sept. 1874.
1858] THE GRONDWET 409
of meer artikelen hebben, hunne bezwaren behoorlijk te kunnen in-
brengen, volgens wet.
En zal deze wet overeenkomstig art. 10 van het besluit van den
gecombineerden Krijgsraad in dato Rustenburg, 2 Februarij 1858,
van heden af dadelijk als Lands wet in werking treden en gebruikt
worden.
Aldus gedaan door de ondergeteekende Leden van den Comite-
raad, gekozen door het Publiek alhier, op den 2den Februarij 1858,
volgens art. i van genoemd besluit.
LANDDROSTKANTOOR,
RUSTENBURG, den i$den
Februarij 1858.
M. W. PRETORIUS, President.
ST. SCHOEMAN, Commandant-GeneraaL
W. ROBINSON, Voorzitter. C. W. C. PISTORIUS.
P. J. S. ROBERTSE. C. MOLL.
C. POTGIETER. C. L. CAMPHER.
H. T. BUHRMAN. J. C. STEIJN.
S. J. KRUGER. J. H. L. KOCK.
J. P. MAREE. S. J. P. KRUGER.
De Volksraad de Grondwet in haar geheel overzien en behandeld
hebbende, keurt dezelve met algemeene stemmen goed, met voorbehoud
der bepaling, vervat in art. 10 van het Krijgsraadsbesluit, van 2
Februarij 1858. (Zie art. 19 der Volksraadsbesluiten, van 16 tot 19
Februarij 1859.)
J. L. JANSE v. RENSBURG.
L. S. DU PLESSIS.
R. DE PLOOIJ.
S. POTGIETER.
C. VAN DER MERWE.
H. PRINSLOO.
H. S. STROH. W. P. GROBLER.
P. W. A. SENEKAL. J. F. VAN STADE.
P. VENTER. J. H. ROBERTSE.
according to law, if they have any such lawful objections
against any of the articles.
And this law, in accordance with art. 10 of the resolution
of the combined Council of War, dated at Rustenburg, the
2nd February 1858, shall take effect from this day and be
observed as the law of the country.
Thus done by the undersigned members of the Committee
Council chosen by the people of this place on the 2nd February
1858, according to art. i of the said resolution.
LANDDROST’S OFFICE,
RUSTENBURG, i$th Feb. 1858.
M. W. PRETORIUS, President.
ST. SCHOEMAN, Commandant-General.
[and 12 others.]
The Volksraad having revised and considered the whole
of the Grondwet, unanimously approve the same, saving the
provision contained in art. 10 of the War Council’s resolution,
dated the 2nd Feb. 1858. (See art. 19 of the Volksraad’s
resolutions, dated i6th to the I9th Feb. 1859.)
[26 signatures.]
410 SOUTH AFRICAN REPUBLIC [1858
G. F. PISTORIUS. C. H. ELOFF.
JAC. RADEMEIJER. J. P. PRINSLOO.
M. J. REDELINGHUIS. H. P. MALAN.
P. C. MINNAAR. T. J. KRUGER.
G. B. VAN ROOIJEN. C. GROBLER.
D. A. BOTHA. J. J. BOOIJSE.
J. M. STRUBEN. W. JANSE v. RENSBURG.
Locale Wetten der Z.A. Rep. I. 35.
Ho. 183. INSTRUCTIE VOOR DE VELDCORNETTEN. 1
[Vervangende Instructies uitgevaardigd op 9 April 1849.]
(Goedgekeurd door V.R.B., 17 Sept. 1858, art. 19.)
ART. i. De Veldcornetten en Adsistent Veldcornetten worden
gekozen bij meerderheid van stemmen door de blanke inwoners hunner
afdeelingen.
2. Zij worden aangesteld voor den tijd van vijf of meet jaren, 2 en
zijn bij aftreding herkiesbaar.
3. De Veldcornetten en Adsistent Veldcornetten zijn gehouden
naauwkeurig te letten op de rust en goede orde in de respective afdee-
lingen, en zullen niet gedoogen dat dezelve door iemand der bewoners
gestoord worde.
4. [De Veldcornetten zijn verplicht bekendmaking te doen van
wetten en Gouvernementskennisgevingen, en bevorderen de nakoming
ervan.]
5. [Zij zijn onderworpen aan de bevelen der Landdrosten.]
6. [Zij moeten de bevelen der geregtshoven gehoorzamen.]
No. 183. INSTRUCTIONS TO THE FIELD-CORNETS. 1
[Superseding Instructions issued on gth April 1849.]
(Approved by resolution of the Volksraad, lyth Sept. 1858, art. 19.)
ART. i. The Field-cornets and Assistant Field-cornets
shall be chosen by a majority of the votes of the white inhabi-
tants of their divisions.
2. They shall be appointed for the period of five or more
years, 2 and on leaving their office they shall be eligible for re-
election.
3. The Field – cornets and Assistant Field – cornets are
obliged vigilantly to watch over the maintenance of peace and
good order in their respective divisions, and shall not allow the
same to be disturbed by any of the inhabitants.
4. [It shall be their duty to make public all laws and
Government notices, and to assist in the observance of the
same.]
5. [They shall be subject to the commands of the Land-
drosts.]
6. [They shall obey the orders of the courts of justice.]
1 Modified by Law No. 2, 1885, and several other laws which delegated
various functions to the Field-cornets.
Law No. 2, 1885, limited the period to three years,
1858] FIELD-CORNETS 411
7. [Zij moeten lijsten houden van alle personen die hunne wijken
binnenkomen. Burgers moeten aan Veldcornetten kennis geven van
hun aankomst of verhuizing op straf van boete.]
8. [Veldcornetten moeten lijsten houden van dienstpligtigen in
hunne wijken. De manschappen uit elk Veldcornetschap worden in
3 klassen verdeeld. Ongehuwden worden voor gehuwden gecom-
mandeerd. Personen boven 60 zijn vrij van gewone krijgsdienst.]
9. [Verslag alle 2 maanden te worden gedaan door de Veldcornetten
aan hun Landdrost.]
10. Bij verzuim van aan die bepaling te voldoen, worden zij beboet
met Rds. 10.
11. [Lijkschouwing door de Veldcornetten te worden gehouden.]
12. [Veldcornet rapporteert het plegen van misdaad aan den
Staatsprocureur of aan den Landdrost.]
13. [Ingeval van moord of andere misdaden doet de Veldcornet
plaatselijk onderzoek en rapporteert aan den Staatsprocureur of Land-
drost.]
14. [Pligten der Veldcornetten in ‘t schouwen van lijken.]
15. [Veldcornet kan een gewonden persoon onderzoeken. Waar
mogelijk moet de Veldcornet zich voorzien van geneeskundige hulp.
Geneeskundige geregtigd op belooning en mag zijne diensten niet
weigeren.]
16. [Pligten van den Veldcornet in geval van huisbraak, enz.]
17. [Veldcornet verpligt aanteekening van alle schouwingen te
7. [They shall keep lists of all persons who enter their
wards. All burghers shall notify the Field-cornets of their
arrival or removal under penalty of a fine.]
8. [Field-cornets shall keep lists of persons liable to service
in’their wards. The men of each field-cornetcy are divided into
3 classes. Unmarried men shall be called up before married
men. Persons above 60 years of age shall be exempt from
ordinary military service.]
9. [Field-cornets shall send reports to their Landdrosts
every two months.]
10. Failing to comply with this provision they shall be
fined 10 Rix-dollars.
11. [They shall inspect corpses of those who did not die a
natural death.]
12. [In case of crime the Field-cornet shall report the cir-
cumstances to the State Attorney or to the Landdrost.]
13. [In case of murder or other crimes the Field-cornet
shall make an inspection on the spot, and shall send his report
to the State Attorney or to the Landdrost.]
14. [Duties of Field-cornets in examining corpses.]
15. [A Field-cornet may examine a wounded person.
Wherever possible he shall procure the assistance of a doctor.
Such doctor shall be entitled to remuneration and may not
refuse his services.]
16. [Duties of a Field-cornet in case of burglary, etc.]
17. [It shall be his duty to make notes of all inspections, and
412 SOUTH AFRICAN REPUBLIC [1858
houden en onderteekend naar den Staatsprocureur te zenden. Zoo-
danige aanteekening in regten te worden gebruikt.]
18. [Veldcornet mag niemand zonder behoorlijk bevelschrift
apprehenderen, dan alleen op heeterdaad, of waar een misdadiger zich
bij hem aangeeft. Gevangenen moeten naar de drostdij gezonden
worden.]
19. l Van deze bepalingen zijn echter uitgezonderd : vagebonden
of rondzwervers, die zich zonder verlof in zijn wijk bevinden, en die,
noch bij hem, noch bij de ingezetenen bekend zijn, gelijk mede alle
kleurlingen, die onder verdenking liggen van eenige misdaad te hebben
begaan. De Veldcornet is verpligt en gehouden de zoodanigen in
verzekering te nemen, en naar de drostdij van zijn district op te zenden.
De nalatige Veldcornet zal gestraft worden met eene boete van 10 tot
50 Rds.
20. [Bij het verzenden van gevangenen is de Veldcornet gehouden
die van verder af woonende Veldcornetten over te nemen.]
21. [Van alle buitengewone gebeurtenissen geeft de Veldcornet
kennis aan Staatsprocureur of Landdrost. Ingeval van dringende
noodzakelijkheid moet hij zonder op orders te wachten stappen nemen
om kwaad tegen te gaan.]
22. [Hij moet het postwezen in zijn wijk bevorderen.]
23. [Brieven, enz. aan ambtenaren geadresseerd moet hij met
spoed verzenden.]
to sign and despatch the same to the State Attorney. Such
record may be used in court.]
18. [The Field-cornet may not arrest any person without
a proper warrant, except when such person is caught in the
act, or when a criminal shall give himself up to the Field-
cornet. All prisoners shall be sent to the drostdy.]
19. * From the provisions of the last preceding section are,
however, excepted : vagabonds or vagrants who enter his
ward without permission, and who are unknown to him and
the inhabitants, as also all coloured persons who are sus-
pected of having committed a crime. The Field-cornet is
bound to take such persons into custody, and to send them
to the drostdy of his district. Any Field-cornet who shall be
guilty of negligence in this respect shall be punished with a
fine of 10 to 50 Rix-dollars.
20. [For sending prisoners to the drostdy the Field-cornet
shall take over and send on such prisoners as shall have been
sent to him by another Field-cornet living farther off.]
21. [Of all unusual occurrences the Field-cornet shall give
notice to the State Attorney or the Landdrost. In cases of
great urgency he shall take measures to oppose any evil
without awaiting any orders.]
22. [He shall promote the postal service in his ward.]
23. [Letters, etc. addressed to officials he shall transmit
with speed.]
1 Repealed by Procl. No. 34 of 1901.
1858] FIELD-CORNETS 413
24. [Veldcornet beiast met het toezigt der publieke wegen.]
25. [Veldcornetten gehouden onderling te corresponderen en mee
te werken tot bevordering der Republiek.]
26. [Veldcornetten gelast private geschillen uit den weg te ruimen
en civiele processen te voorkomen.]
27.
28.
29.
Zij moeten stipt onpartijdig blijven.]
Wie niet tot de krijgsdienst opgeroepen mag worden].
X>e Veldcornet beslist wie verontschuldigd mag worden, maar
hij zal verantwoording schuldig zijn aan zijn Commandant.]
30. [Vrijgestelde personen tusschen 1 6 en 60 jaar moeten bijdragen
doen.]
31. [Bijdragen worden door den Veldcornet gevorderd.]
32. [Boete voor het niet nakomen van art. 117 der Grondwet.]
33. [Veldcornet regelt gevallen waar personen onvermogend zijn.]
34. [Boete voor Veldcornet die zonder goede redenen bedankt of
weigert zijn ambt te aanvaarden.]
35. [Verdeeling van buitgemaakte goederen.]
36. [Veldcornetten, enz. verpligt zoo spoedig mogelijk ambtsbrieven
te beantwoorden.]
37. [leder kleurling, met of zonder vee rondloopende moet een
behoorlijke pas van den Veldcornet hebben.]
24. [The supervision of the public roads is entrusted to
him.]
25. [Field – cornets are obliged to correspond with one
another, and to co-operate in promoting the welfare of the
Republic.]
26. [They are instructed to settle private disputes and thus
to avoid civil cases.]
27. [They shall observe strict impartiality.]
28. [List of those not liable to be called up for military
service.]
29. [The Field-cornet shall decide on claims for exemption,
but he shall be responsible to his Commandant.]
30. [Persons between 16 and 60 years of age who are ex-
empted shall make contributions.]
31. [These contributions shall be demanded by the Field-
cornet.]
32. [Fine prescribed for non-compliance with the provisions
of art. 117 “of the Grondwet.]
33. [The Field-cornet shall settle any case of inability to
make the contributions.]
34. [Fine prescribed in case a Field-cornet resigns or refuses
to enter on his duties without sufficient cause.]
35. [Division of spoil captured in war.]
36. [Field-cornets and others are obliged to reply to official
letters as soon as possible.]
37. [Every coloured person moving about with or without
cattle must have a pass signed by his Field-cornet.]
414 SOUTH AFRICAN REPUBLIC [1858
38. [Naturellenkapiteins mogen geen zendeling toelaten zonder
verlof van de Veldcornet na raadpleging met den Uitv. Raad.]
39. [Aanzoeken om kleurlingen in dienst te krijgen bij de Veld-
cornetten te worden gedaan.]
40. [Het onderhandelen over dienstvolk zonder voorkennis van den
Veldcornet is belet op straffe van boete.]
41. [Geen sterke dranken aan kleurlingen te worden verkocht
zonder order hunner meesters.]
42. [Gekleurde dienstboden moeten goed behandeld worden. Zij
kunnen zich over mishandeling in de eerste plaats bij een Veldcornet
beklagen.]
43-
44.
45-
Boete voor mishandeling van dienstboden.]
Straf op kleurlingen die ongegronde klagten maken.]
T)oor de Veldcornetten zal eene dienst aangewezen worden voor
iedere kleurling die niet aan een of ander kapitein ondergeschikt is.]
46. [Geen pas te worden verleend aan kleurlingen om buiten het
land te gaan.]
47. [Gronden aan kapiteins in voortdurend gebruik afgestaan.]
48. [Ongestoord bezit van gronden en bescherming aan Naturellen-
kapiteins gewaarborgd. 1 ]
* 49. De kapiteins en onderhoorigen mogen geen bondgenootschap
38. [Native captains shall not allow missionaries to come
among them without the permission of the Field-cornet, who
shall first have consulted the Executive Council.]
39. [Applications for the hiring of coloured servants shall be
made to the Field-cornets.]
40. [Every person is prohibited on penalty of a fine to
negotiate with a view to obtaining coloured servants otherwise
than with the knowledge of the Field-cornet.]
41. [No strong liquor to be sold to coloured persons except
on an order from their masters.]
42. [Coloured servants must be well treated. In case of
ill-treatment they may make complaint to the Field-cornet in
the first instance.]
43. [Fine prescribed for the ill-treatment of servants.]
44. [Punishment of coloured persons who make groundless
complaints.]
45. [Every coloured person who is not subordinate to any
of the native captains shall be liable to be placed in service by
the Field-cornets.]
46. [No pass to go outside the territory of the Republic
shall be granted to coloured persons.]
47. [Lands assigned to captains shall be for their per-
manent use.]
48. [Undisturbed possession of such lands and protection
are guaranteed to native captains. 1 ]
49. The captains and those under them shall not enter into
1 Cf. The Convention of London, 1884, art. 19, infra.
1858] FIELD-CORNETS 415
met andere volken aangaan, en zijn onderworpen aan de wetten van dit
land.
50. [Gronden aan Kafferstammen toegestaan zullen aangewezen
worden. De Veldcornetten zullen geschikte gronden aanbevelen.]
51. [Vuurwapenen, ammunitie, enz. mogen niet aan Naturellen-
stammen worden gegeven of verhandeld.]
52. Geen plaats zal grooter gemspecteerd worden dan 3000 morgen
gronds.
53- [Veldcornetten gelast geen inkomende personen in onbewoonde
streken te laten wonen zonder verlof van het Gouvernement.]
54. De Veldcornetten zullen stiptelijk waken voor de wet waarbij
hij die zich schuldig maakt aan het vervoeren van kleurlingen, of hunne
kinderen over de grenzen der Republiek, of die gemelde jonge kleur-
lingen verhandelen of verkoopen, beide, koopers en verkoopers, zullen
gestraft worden met ontneming der kleurlingen en eene boete van i oo
tot ^500, of bij onvermogen met gevangenisstraf.
55. [Strafbepaling voor het niet voldoen aan gedane oproeping of
aan wettige bevelen.]
56. [Vorm van huurcontract met kleurlingen voor een Veldcornet
te worden aangegaan.j
57. [De eigenaar van eene plaats waar er eene Kafferkraal is mag 4
any treaties with other nations, and are subject to the laws of
this country.
50. [Lands assigned to Kaffir tribes shall be pointed out,
and it shall be the duty of Field-cornets to recommend suitable
situations.]
51. [Fire-arms, ammunition, etc. shall not be granted or
given in exchange to native tribes.]
52. No farm shall be inspected of a larger extent than
3000 morgen.
53. [Field – cornets are instructed not to allow persons
entering the territory of the Republic to reside in unoccupied
tracts without the permission of the Government.]
54. The Field-cornets shall take especial care that the
law is observed whereby any person guilty of carrying off
coloured persons or their children across the boundaries of the
Republic, or who shall dispose of or sell such young coloured
persons, whether he be seller or purchaser, shall be punished
by being dispossessed of such coloured persons and being con-
demned to pay a fine of from 100 to 500, and, in case of
inability to pay, by imprisonment.
55. [Punishment prescribed for non-compliance with a call
to military service or other lawful command.]
56. [Form of contract of hire to be entered into with
coloured persons in the presence of a Field-cornet.]
57. [The owner of a farm on which there is a Kaffir kraal
416 SOUTH AFRICAN REPUBLIC [1859
huishoudende kleurlingen in dienst houden, doch die moeten beloond
worden. 1 ]
58. [Veldcornetten zijn gehouden alle kafferkralen in hun wijk op
te nemen.]
59. [Bij sterfgevallen moet de Veldcornet onderzoeken of een
testament is nagelaten.]
60. [Veldcornet binnen zijn wijk te handelen, waar de inwoners
hem moeten gehoorzamen.]
61.
62.
63-
[Veldcornet stiptelijk de wetten te observeren.]
Alle omcieren moeten beeedigd worden.]
[Vorm van den eed.]
Locale Wetten der Z.A. Rep. I. 90.
No. 184. BIJLAGEN TOT DE GRONDWET. [19 Sept. 1859.]
No. i.
NADEMAAL het gebleken is dat, ofschoon in art. 31 der Drie en
Dertig Artikelen, in de Instructie van de Weesmeesters en in verschil-
lende andere wetten en raadsbesluiten naar de Hollandsche wetten
verwezen wordt, en nogtans gedurig onzekerheid bestaat welke Hol-
landsche wetten worden bedoeld : en nademaal deze onzekerheid tot
groot nadeel, voor de burgers en moeite en twijfel voor de Regters
verstrekt, zoo heeft de Volksraad der Zuid Afrikaansche Republiek,
op voordragt van den Uitvoerenden Raad, het noodig geacht de vol-
may have in his service four coloured persons who are heads of
families, but they shall be rewarded for their services. 1 ]
58. [Field-cornets are obliged to take a census of all Kaffir
kraals in their wards.]
59. [Whenever a death takes place the Field-cornet shall
make enquiry whether a will has been left.]
60. [Each Field-cornet shall act within the limits of his
ward, and must be obeyed by the inhabitants thereof.]
61. [The Field-cornet shall carefully observe the laws.]
62. [All officers shall take an oath.]
63. [Form of oath.]
No. 184. ADDENDA TO THE GRONDWET.
No. i. [19 Sept. 1859.]
WHEREAS it has appeared that, although in art. 31 of the
Thirty-three Articles, in the Instructions to the Orphan-
masters and in various other laws and resolutions of the
Raad, reference is made to the Dutch laws, uncertainty still
exists as to which Dutch laws are intended : and whereas
this uncertainty causes much injury to the burghers and
trouble and doubt to the judges ; therefore the Volksraad of
the South African Republic, acting on representations made
by the Executive Council, have deemed it necessary to make
1 This art. was repealed by Law No. 4, 1885.
1859] LAW-BOOKS 417
gende bepalingen te maken, die bij deze worden vastgesteld, tot zoolang
er nadere voorzieningen in zijn gemaakt :
ART. i. Het Wetboek van Van der Linden blijft (voor zoover
zulks niet strijdt met den Grondwet, andere wetten of Volksraads-
besluiten), het wetboek in dezen Staat.
2. Wanneer in genoemd boek over eenige zaak niet genoegzaam
duidelijk of in het geheel niet wordt gehandeld, zal het Wetboek van
Simon van Leeuwen en de Inleiding van Hugo de Groot verbindend
zijn.
3. Bij het gebruik dezer drie wetboeken zal altijd gehandeld worden
op de wijze bij art. 31 der Drie en Dertig Artikelen bepaald.
4. Deze wet zal van kragt zijn na drie maanden aan het publiek
bekend te zijn gemaakt.
Goedgekeurd in de Volksraadszitting van 19 September 1859, art.
52, te Pretoria gehouden.
No. 185. No. 2. [19 Sept. 1859.]
NADEMAAL het gebleken is dat er voortdurend onzekerheid bestaat
van welke zaken de Geregtshoven kennis mogen nemen en uitspraak
doen, en art. 143, in verband met art. 219 der Grondwet, niet altijd
op dezelfde wijze wordt uitgelegd, waardoor, tot groot nadeel van den
Staat, het eigendom van verschillende burgers onzeker is, zoo heeft
the following regulations, which are hereby affirmed, till such
time as further provision shall be made :
ART. i. The Law-book of Van der Linden (for as far as it
is not in conflict with the Grondwet or other laws or resolu-
tions of the Volksraad) continues to be the law-book of this
State.
2. When in the above-mentioned book any matter is not
treated with sufficient clearness, or is not dealt with at all,
then the Law-book of Simon van Leeuwen and the Introduction
of Hugo de Groot are binding.
3. In using these three law-books the procedure shall
always be according to the manner laid down in art. 31 of
the Thirty-three Articles.
4. This law shall be of force after it has been made known
to the public for three months.
Approved of in a session of the Volksraad held at Pretoria
on the igth September 1859, al> t- 5 2 –
No. 185. No. 2. [19 Sept. 1859.]
WHEREAS it has become evident that constant uncertainty
exists as to which cases the courts of law may take cognizance
of and pass judgment in, and whereas art. 143 in conjunction
with art. 219 of the Grondwet is not always interpreted in the
same manner : whereby to the great injury of the State the
possessions of several burghers are not assured ; therefore, in
response to representations made by the Executive Council,
27
4i8 SOUTH AFRICAN REPUBLIC [1858
de Volksraad der Zuid Afrikaansche Republiek, op voordragt van den
Uitvoerenden Raad, het noodig geacht de volgende bepalingen te
maken, die bij deze worden vastgesteld :
ART. i. Hangende zaken, bedoeld in art. 219 der Grondwet, zijn
de zoodanige waaromtrent geen Volksraadsbesluit is genomen.
2. leder Hof zal alle Volksraadsbesluiten als Wet eerbiedigen, geene
aanmerking of beoordeeling er over kunnen maken, en wat door den
Volksraad is beslist of goedgekeurd zal niet meer aan de kennisneming
van eenig Geregtshof mogen onderworpen worden.
3. Wanneer over dezelfde zaak verschillende Volksraadsbesluiten
zijn genomen, zal het laatste besluit als Wet door ieder Geregtshof
moeten geeerbiedigd worden.
4. Deze wet is onmiddelijk van kracht.
Aangenomen en goedgekeurd in de Volksraadszitting gehouden te
Pretoria, van 19 September 1859, art. 53.
Locale Wetten der Z.A . Rep. I. 115.
No. 186. VOLKSRAADSBESLUIT, SEPTEMBER 1858, ART. 230.*
ART. 140. De gezworenen zullen, voordat zij zitting in het Hooge
Geregtshof, bedoeld bij art. 143, nemen, den volgenden eed in handen
van de Landdrosten afleggen :
the Volksraad of the South African Republic have deemed it
necessary to make the following regulations, which they hereby
affirm :
ART. i. Pending cases, as mentioned in art. 219 of the
Grondwet, are those with regard to which no resolution of the
Volksraad has been passed.
2. Every Court shall observe all resolutions of the Volks-
raad as law, shall be entitled to make no remark and pass no
judgment about them, and what has been decided or approved
of by the Volksraad may not again be subjected to the cogniz-
ance of any court of law.
3. When various resolutions of the Volksraad have been
taken about the same matter, every court of law shall be
bound to respect as law the resolution last taken.
4. This law takes effect immediately.
Adopted and sanctioned in a session of the Volksraad held
at Pretoria on the igth September 1859, ar *- 53-
No. 186. RESOLUTION OF THE VOLKSRAAD,
SEPTEMBER 1858, ART. 23C. 1
ART. 140. The jurors shall, before taking session in the
High Court of Justice mentioned in art. 143, take the following
oath before the Landdrosts :
1 Repealed by Procl. No. 34 of 1901.
1858] JURORS 419
[Eed zoo als bij art. 140 der Grondwet.]
In zulke zaken, waar een Hof van Landdrosten en gezworenen
vereischt wordt, zal de Landdrost van dat district in zoodanige zaken,
die staan voor het Hoog Geregtshof gebragt te worden, vier-en-twintig
stemgeregtigde burgers van dat district dagvaarden om als zoodanig
voor het Hof te verschijnen. Van dit getal zal door het lot beslist
worden, welke 12 burgers als eene jurie zullen moeten dienen.
Zoowel aan het Hof als aan elk der partijen afzonderlijk, zal het
geoorloofd zijn bij het oproepen der namen, een, twee of drie personen
van de hand te wijzen, zonder verpligt te wezen eenige redenen voor
dea fwijzing op te geven ; en zoodra de jurie van 12 gezworenen vol-
tallig is, zal het Hof, na behoorlijk de jurie ingezworen te hebben, met
deszelfs werkzaamheden een aanvang nemen.
Locale Wetten der Z.A . Rep. I. 104.
No. 187. VOLKSRAADSBESLUIT, SEPTEMBER 1858, ART. 23^
ART. 144. Bij elke gelegenheid wanneer er zaken voorkomen die
een Hoog Geregtshof vereischen, zal de Landdrost gehouden zijn van
zulk een vereischte aan den Uitvoerenden Raad kennis te geven, welke
Raad den dag der zitting zal moeten bepalen en de Landdrosten aan-
schrijven, dat vereischte Geregtshof te bestieren.
Locale Wetten der Z.A. Rep. I. 105.
[Oath as in art. 140 of the Grondwet.]
In cases in which a Court of Landdrosts and jurors is
demanded, the Landdrost of that district shall, in such cases
as are about to come up before the High Court, summon from
the district 24 burghers possessing the franchise, who shall
appear as such before the Court. Of this number it shall be
decided by lot which 12 burghers will have to serve as a jury.
It shall be allowed to the Court as well as to each of the
parties to set aside one, two or three of the persons as the names
are called out without being bound to assign any reason for
the objection ; and as soon as the number of 12 jurors shall be
complete, the Court shall, after having properly sworn the
jury, commence its labours.
No. 187. RESOLUTION OF THE VOLKSRAAD,
SEPTEMBER 1858, ART. 23^. x
ART. 144. On each occasion when cases come up which
require a High Court of Justice, the Landdrost shall be held
to give notice of such requirement to the Executive Council,
which Council shall fix the date of the session and point out
the Landdrosts who shall supervise the required Court.
1 Repealed by Procl. No. 34 of 1901.
420 SOUTH AFRICAN REPUBLIC [1859
No. 188. UNION OF THE SOUTH AFRICAN REPUBLIC
AND THE REPUBLIC OF LIJDENBURG.
[In 1856 disputes between individual leaders and separate localities
transferred themselves to the field of the Church. Most of the people
to the north of the Vaal were in favour of a Transvaal Church independ-
ent of the Cape Synod, but Lijdenburg in the eastern Transvaal differed
from the rest of the country, at the same time repudiating the political
leadership of men desired by the other inhabitants. This was largely
due to the action of the court of justice, which had in 1854 declared
eight Volksraad members of Lijdenburg guilty of a breach of the
Constitution. In the same year a certain J. A. Smellenkamp had been
banished from the country for slanderous language said to have been
issued against a minister to whom most of the inhabitants adhered, but
to whom the people of Lijdenburg objected.
In May 1856 there was an irregular session of the Volksraad at
Pretoria, but no representatives from Lijdenburg attended. In
October of the same year the Volksraad met in session at Lijdenburg,
but on this occasion representatives of the other districts kept aloof.
In order to make up a quorum the members present added seven men
to their number. On the i6th December this body set up the Republic
of Lijdenburg with its own Volksraad, its own Executive Council, and
its own Grondwet. While this was going on, the Volksraad of the South
African Republic held its meetings at Pretoria, and the Grondwet
given above, which had been drawn up and approved of by the bulk
of the people a few years earlier, was finally adopted in 1858. After
lengthy negotiations between the two Republics, a compromise was
agreed upon as is indicated by this document. The united Volksraad
of the whole Transvaal met at Pretoria on April 4, 1860. Cf. Locale
Wetten der Z.A. Rep. I. 32.]
BIJLAGE
Tot de Besluiten van den Hoog-Ed. Achtb. Volksraad, genomen
te Pretoria van den 3 den tot 10 den April 1860.
[24 Nov. 1859.]
Overeenkomst tusschen het Gouvernement van de Zuid Afrikaan-
sche Republiek en de Republiek Lijdenburg, tot vaststelling der ver-
eeniging van beide Staten, aangevangen 26 Februarij, en geeindigd te
Rustenburg, 23 November 1859.
ART. i. Betreffende de kwestie der limietscheiding, is besloten dat
de scheidslijn der Z.A. Republiek en der Republiek Lijdenburg zal zijn
de Olifantsrivier, op tot waar de Rhenosterpoortsrivier inloopt, en de
ADDENDUM
To the Resolutions of the Volksraad passed at Pretoria on the
3rd to the loth April 1860. [24 Nov. 1859.]
Agreement between the Government of the South African
Republic and the Republic of Lijdenburg for effecting the
union of the two States, begun on 26th February and completed
at Rustenburg on 23rd November 1859.
ART. i. With regard to the matter of settling the boundaries
it is resolved that the boundary of the South African Republic
and the Republic of Lijdenburg shall be the Olifants River
1859] UNION WITH LIJDENBURG 421
Rhenosterrivier op derzelver oorsprong, en van daar met eene regte
lijn tot naar den kop aan Vaalrivier, waar de bovenste wagenweg van
Potchefstroom doorgaat naar Buffelrivier.
De v66r datum dezes (28 Februarij 1859) ter weerszijden van die
lijn reeds genomen en aangeteekende plaatsen, zullen het eigendom
der eigenaren blijven, en dat wel volgens den datum van derzelver
aanteekening ; verder gaat de lijn van dien kop aan Vaalrivier langs
de spruit van Vaalrivier (Kopokrivier) op tot waar de groote algemeene
wagendrift van den weg van Lijdenburg naar Natal door die rivier
gaat ; en van daar met een regte lijn naar den ronden kop welke
tusschen de spruiten van de Pongolorivier ligt aan de lijn van Utrecht,
benoemd in de besluiten genomen te Utrecht in dato 13 Augustus 1859.
Deze lijn is benoemd en vastgesteld op 20 September 1859, te Pretoria.
Na de vaststelling dezer vereeniging door den vereenigden Volksraad,
zal de bovengemelde lijn districtlijn worden.
2. [Betreffende zekere kwestie n in het district Utrecht.]
3. Aangaande de zaak in kwestie wegens het besluit en vonnis
der commissie, Volksraadsleden van Lijdenburg in November 1854,
vermeld en voorkomende in de Volksraadsbesluiten te Pienaarsrivier,
in dato September 1855, is besloten dat de geheele zaak als niet voor-
gevallen te zijn wordt beschouwd, met dien verstande dat al de daarin
betrokken personen in hun voile eer en karakter hersteld en daarin
gehandhaafd worden, en dat niemand omtrent de zaak in kwestie aan
eenig ander, wie ook, verwijtingen, beleedigingen of vervolgingen,
up to where the Rhenosterpoort River joins it, and the Rhen-
oster River up to its source, and from there in a straight line
to the hill on the Vaal River where the upper wagon-road from
Potchefstroom passes through to the Buffel River.
The farms on both sides of that line taken and registered
before the date hereof (28 Feb. 1859) shall remain the property
of the owners as from the date of registration. The line
proceeds further from that hill on the Vaal River along the
tributary of the Vaal River (Kopok River) up to where the
large common wagon-drift on the road from Lijdenburg to
Natal passes through that river ; from there in a straight line
to the round hill which lies between the streams of the Pongolo
River on the Utrecht line established in the resolutions taken
at Utrecht on I3th August 1859. This line has been fixed at
Pretoria on 20th September 1859. After the establishment of
union by the combined Volksraad the line above mentioned
shall become a district boundary.
2. [Regarding certain matters in the district of Utrecht.]
3. With regard to the matter in dispute arising from the
resolution and judgment of the committee jof Volksraad
members of Lijdenburg in November 1854, which is to be
found mentioned in the resolutions of the Volksraad at Pienaars
River, dated September 1855, it is decided that the whole
matter be regarded as having never occurred, on the under-
standing that the honour and character of all the persons
therein involved be fully reinstated and upheld, and that no
one shall in any way reproach, insult or persecute any other
422 SOUTH AFRICAN REPUBLIC [1859
van welken aard ook, zal mogen aandoen, op boete naar den aard
der zaak.
4. Wordt besloten dat Lijdenburg, zoo ver zijn tegenwoordig
grondgebied strekt, zijn eigen vrij plaatselijk bestuur en wetten zal
behouden ; en dat hoewel vereenigd onder eene algemeene wet en
bestuur ten alien tijde het regt blijft behouden, om zoover het plaat-
selijke wetten aangaat tot regeling der zaken en belangen van de
districten in dat grondgebied en deszelfs inwoners een Districtsraad
te hebben, die de tot dat einde benodigde wetten en regulation zal
maken en uitvaardigen ; al zulke wetten zullen echter ter goedkeuring
van den Uitv. Raad en Volksraad gelaten worden, voor dat zij als
blijvende Districts wetten erkend zullen worden.
Indien de Staatspresident Lijdenburgs grondgebied komt bezoeken,
zal hij het regt en de kracht hebben dien Districtsraad tot het houden
van vergaderingen op te roepen en hun alsdan verslag van hunne gedane
verrigtingen te laten doen.
In de algemeene lands zaken zullen Lijdenburgs districten en
inwoners echter onder de algemeene landswet staan en even als alle
inwoners in alle regten deelen en den algemeene staat moeten dienen
en in standhouden volgens de algemeene landswetten.
Verder kan de President dit verkiezende gedurende zijn verblijf in
Lijdenburgs grondgebied dien districtsraad oproepen om verder in
zijne tegenwoordig en met zijne medewerking alle plaatselijke belangen
person whatever about the matter in question, on pain
of being liable to a fine according to the nature of the
case.
4. It is resolved that Lijdenburg, as far as its present
territory extends, shall retain its own free local management
and laws ; and that although united [with the S.A. Republic]
under common laws and government it shall at all times retain
the right to have a District Council with local laws for managing
the affairs and interests of the districts in that territory and
the inhabitants thereof. The Council shall, with that object
in view, frame and publish the necessary laws and regulations ;
but all such laws shall be subject to the approval of the Executive
Council and the Volksraad, before they shall be acknowledged
as permanent district laws.
If the President of the State pays a visit to the Lijdenburg
territory he shall be authorised to summon the District Council
to a meeting and cause it to report on its activities.
In the common affairs of the country, however, the districts
and inhabitants of Lijdenburg shall be subject to the general
laws of the country, they shall enjoy the same rights as all
other inhabitants, and they shall be bound to serve and maintain
the common State in accordance with the common laws of
the country.
Further, the President may, if he thinks fit, during his
stay in Lijdenburg territory, summon the District Council
further to regulate in his presence and with his assistance all
UNION WITH LIJDENBURG 423
van die districten te regelen, alsdan zal in dien distriktsraad de Presi-
dent als Voorzitter van dien raad plaats kunnen nemen.
Verder zal v66r de zitting van den vereenigden Volksraad een
register met deszelfs inlichtingen van beide zijden ingediend en vast-
gesteld worden door den eersten vereenigden Volksraad, inhoudende
en vaststellende wat verstaan en begrepen onder de woorden plaatse-
lijk bestuur en wetten, opdat de districtsraad volgens dat register wete
welke zaken door hun behandeld mogen worden.
5. Wordt besloten dat alle wetten en besluiten van af i Augustus
1845, tot den datum der vaststelling van deze vereeniging door den
Volksraad en het verder bestuur van het toenmalige en tegenwoordig
nog bestaande bestuur van Ohrigstad en Lijdenburg, betreffende het
uitgeven, koopen en verkoopen van gronden en alles wat daarop
betrekking heeft, in deszelfs voile kracht en waarde zullen blijven en
daarin geen verandering gemaakt zal mogen worden ten nadeele der
tegenwoordige ingezetenen of regthebbenden ; dat echter wegens het
uitgeven van de gronden en alles wat daarop betrekking heeft behoo-
rende aan Lijdenburgs Staat van af vaststelling dezen ten behoeve van
later inkomende inwoners zoodanige veranderingen en verbeteringen
kunnen en mogen gemaakt worden, als tijd en omstandigheden noodig
zullen maken, echter zullen zulke veranderingen of verbeteringen
niet gedaan en vastgesteld mogen worden zonder de medewerking
en goedkeuring van den bestaanden districtsraad vermeld in art. 4,
en verder met goedkeuring der ingezetenen van Lijdenburgs tegen-
local interests of those districts. The President may on such
occasion act as chairman of the Council.
Further, before the session of the combined Volksraad, a
register containing items of information from both sides shall
be handed in, and shall be passed by the first combined Volks-
raad, which register shall set forth and affirm what is to be
taken and understood by the words ” local management ” and
” local laws,” in order that the District Council may learn from
that register which matters may be dealt with by them.
5. It is decided that all laws and resolutions, from the
ist August 1845 till the date of the establishment of this
union, passed by the Volksraad and the subsequent manage-
ment of the directorates of that time and of the present time
of Ohrigstad and Lijdenburg, concerning the granting, buying
and selling of lands and everything that stands in relation
thereto, shall retain their full force and validity and that no
alteration shall be made therein to the injury of the present
inhabitants and lawful owners ; that, however, with regard
to the granting of land and everything relating thereto, as
far as the land belongs to the State of Lijdenburg, such altera-
tions and improvements as times and circumstances shall
show to be necessary, may and can be made in future for the
benefit of later immigrants ; such alterations and improve-
ments, however, shall not be made or affirmed without the
assistance and approval of the existing District Council men-
tioned in art. 4, or without the approval of the inhabitants
of the present territory of Lijdenburg, in accordance with the
424 SOUTH AFRICAN REPUBLIC [1859
woordig grondgebied volgens het regt van goed of afkeuring hetwelk
zij volgens de algemeene wetten hebben.
6. Wordt besloten dat de openliggende gronden van Lijdenburg
voortdurend stuksgewijze ter algemeene bewoning zullen opengezet
worden, dat zulks op voordragt van de in art. 4 benoemde districtsraad
of den vereenigden Uitv. Raad gedaan zal worden, in elk geval echter
bij besluit van den Uitv. Raad ; en besluit de districtsraad het regt
om deszelfs inlichtingen of aanmerkingen daaromtrent in te zenden ;
indien er reeds plaatsen zijn in zulk eene streek gronds voor ingezetenen
van Lijdenburg aangeteekend of waarover door het Gouvernen.ent
reeds beschikt is, zal zulks staande blijven en zullen zulke streken grond
alsdan openstaan voor aanteekening van plaatsen voor alle personen
in en buiten Lijdenburgsgrond woonachtig, voor landsregten welke
zij nog hebben voor plaatsen te nemen. Deze aanteekeningen geschie-
den ten kantore van den Landdrost van het district waar die grond
onder behoort. En zal alsdan bij de openzetting bepaald worden,
binnen welken tijd zulke plaatsen bewoond moeten worden, of de
eigenaren in Lijdenburgs grondegebied woonachtig zijn. En daar
niet aan voldaan wordende zonder buitengewoon gegeven uitstel door
den Uitvoerenden Raad, zullen zulke plaatsen weder voor volgende
berzoekers op dezelfde voorwaarden toegekend worden en op deze
wijze voortdurend gedeelten grond ter aanteekening en bewoning
voor het algemeen der geheele Republiek opengezet worden.
right of approval or disapproval which they possess by the
general laws.
6. Resolved that the waste lands of Lijdenburg shall
gradually be thrown open for general settlement ; that this shall
be done on representations being made by the District Council
mentioned in art. 4 or by the combined Executive Council, but
in any case by a resolution of the Executive Council, and that
the District Council shall be entitled to supply information or
make remarks about it. Where there are farms in such territory,
which have already been registered in the name of inhabitants
of Lijdenburg, or which have been otherwise disposed of by
Government, such arrangements shall hold good. And such
tracts of waste territory shall thereafter be open for the registra-
tion of farms for the benefit of all persons residing within or
without the territory of Lijdenburg, in fulfilment of rights to
land which they may still possess in the shape of claims to farms.
The registration takes place at the office of the Landdrost of the
district under which the land falls. And at the time of throwing
open such land the period within which such farms must be
settled shall be laid down, and it shall be stated whether the
owners are resident within the territory of Lijdenburg. And
if this is not conformed to, and unless the Executive Council
grants a special right to postpone the taking up of residence,
such farms shall be granted to the next applicants on the same
conditions ; and in this way pieces of land shall continually
be thrown open to the inhabitants of the whole Republic
to be registered and to be occupied.
1859] UNION WITH LIJDENBURG 425
Indien de Uitv. Raad zulks nuttig oordeelt kunnen zij eene of meer
plaatsen uithouden ten behoeve van het district waar die grond onder
behoort en waarvoor zulks ook vereischt wordt.
7. Is vastgesteld, dat het district Lijdenburg geregtigd is om 9
leden voor den Volksraad te kiezen, van welke 9 leden, volgens wet,
6 de Volksraadsvergaderingen zullen bijwonen.
8. Wordt besloten, dat de Ned. Duitsche Hervormde Gereformeerde
Gemeente thans in Lijdenburgs grondgebied bestaande, of later nog tot
stand gebragt wordende, alle tezamen, zoowel als elk afzonderlijk in de
zaken van Godsdienst en deszelfs Kerkelijk bestuur vrij zullen blijven,
en nimmer door de andere gemeenten buiten Lijdenburgs grondgebied
bestaande, gedwongen zullen mogen worden om hun kerkelijk bestuur
overeenkomstig het hunne te moeten inrigten.
Echter zullen gezegde gemeenten in Lijdenburg grondgebied ver-
pligt zijn zich te blijven gedragen overeenkomstig de bepalingen
vervat in afdeeling 15 en 16 der Grondwet, in dato Lijdenburg,
26 September 1853.
Waarvan origineel en afsckrift hier bijgevoegd is.
9. Wordt besloten dat de behoorlijke betaling der in vroeger tijd
door de gezamenlijke Volksraad gemaakte algemeene landsschulden
gezamenlijk zullen betaald worden naar evenredigheid. Wat Li j den-
burg’s schuld aangaat, volgens de daarover genomen besluiten door den
Volksraad der Republiek Lijdenburg. Deze schulden worden door het
dan vereenigde Gouvernement gewaarborgd om door Lijdenburg be-
taald te worden. Elke Staat of district zal zijn eigen schuld moeten
voldoen ; maar geen gronden of gelden van de eene Staat of district
zullen mogen genomen worden om de schulden van de andere Staten
of districten daarmede te betalen.
If the Executive Council shall deem such a step expedient,
they may hold back one or more farms for the benefit of the
district under which the land falls, or for whatever object
this may seem necessary.
7. Resolved that the district of Lijdenburg is entitled
to elect 9 members for the Volksraad, of which 9 members
6 shall attend the meetings of the Volksraad according to law.
8. [The Dutch Reformed Congregation at Lijdenburg shall
never be forced to assimilate its form of church government to
that of any other congregation. But the Lijdenburg con-
gregation shall be subject to sections 15 and 16 of the Grondwet
dated at Lijdenburg, 26 Sept. 1853.]
9. Resolved that the proper payment of the debts con-‘
tracted in earlier years by the common Volksraad shall be
borne in common and in due proportions. As regards. Lij den-
burg’s debt, it shall be dealt with according to the resolutions
passed thereon by the Volksraad of Lijdenburg. The com-
bined Government guarantees the payment of these debts
by Lijdenburg. Each state or district shall pay its own debts,
and no lands or funds of one state or district shall be employed
to pay the debts of the other states or districts.
426 SOUTH AFRICAN REPUBLIC [1859
io.” Wordt besloten dat elk ingezetene van den geheelen Staat
verpligt is om in tijd van oorlog den Staat in zulken oorlog te dienen.
Is bepaald dat indien enkele ingezetenen zonder wettige oorzaken
moedwillig eenen oorlog met de blanke bevolking van de naburige
Staten verwekken, of door het plegen van onwettigheden in hun gebied,
of aan hunne onderdancn, de Gouvernementen van zulk een naburigen
Staat of Staten wettige redenen geven om onze Republiek met eenen
oorlog te bedreigen of dezelve aan te vallen, dat dan in zulke gevallen
de inwoners van den vereenigden Staat niet gedwongen of genoodzaakt
zullen worden om aan zulk eenen oorlog deel te nemen.
De inwoners die zulk een oorlog verwekken of trachten te ver-
wekken, of daartoe aanleiding geven, zullen volgens de wetten gestraft
moeten worden.
Maar in alle andere gevallen wanneer de gezegde naburige Gouverne-
menten zulk een oorlog beginnen met het doel of oogmerk om onze
Republiek te verdrukken of in te nemen, of dat ons Gouvernement om
de verdrukking van deze Republiek of deszelfs ingezetenen verpligt
wordt om eenen oorlog tegen de gezegde Staten te maken, dan zullen
alle ingezetenen van de geheele Republiek verpligt zijn deel te nemen
aan zulk een oorlog, overeenkomstig de landswetten.
ii. Wordt besloten om wat aangaat hetgeen door de Gouverne-
menten van beide Staten van af 12 Maart 1856, tot op den dag der
vaststelling dezer vereeniging zoo wel binnen als buiten ‘s lands, elk
Gouvernement of partij voor hetgeen door hun verrigt is, zelve verant-
woordelijk zal blijven.
10. It is decided that every inhabitant of the whole State
shall be bound in time of war to serve the State in such war.
It is declared that, if a few inhabitants without lawful
cause shall wilfully bring about a war with the white population
of the neighbouring states, or, if by committing illegal acts
in their territories or against their subjects, they shall give to
the Governments of such neighbouring state or states lawful
ground for threatening our Republic with war, or for attacking
it : then, in such cases, the inhabitants of the united State
shall not be forced or compelled to take part in such a war.
The inhabitants who bring about or attempt to bring about
such a war, or give occasion for such a war, shall be punished
according to law.
But in all other cases when the said neighbouring Govern-
ments shall begin such a war, with the aim and object to
oppress or invade our Republic, or when our Government, by
reason of the oppression of this Republic or the inhabitants
thereof, is compelled to wage war against the said states :
then all the inhabitants of the whole Republic shall be bound
to take part in such war according to the laws of the country.
11. It is resolved as regards what was done by the Govern-
ments of the two States from the i2th March 1856 till the
date of this union, as well within the country as outside it,
that each Government or party shall remain responsible for
what was performed by it.
1859] UNION WITH LIJDENBURG 42?
12. Wordt besloten dat al de landspapieren van Lijdenburgs kan-
toor, aldaar zijnde, niet van daar weggenomen mogen worden.
Echter zullen ten alien tijde copijen opgegeven moeten worden op
aanvraag van het Gouvernement tegen betaling volgens wet.
13. Wordt besloten dat de schulden ten laste van Lijdenburg
volgens art. 9 ten kantore der districten van het grondgebied van
Lijdenburg betaald kunnen of moeten worden, en dat verder alle schul-
den, die volgens wet door die lands- of Landdrostkantoren gemaakt
worden, ook door die landskassen of Landdrosten aldaar uitbetaald
moeten worden, maar de gelden volgens regt aan de algemeene landskas
toekomende voor het onderhoud van den geheelen algemeenen staat
moeten voortdurend overeenkomstig regt en wet aan het Gouverne-
ment of de algemeene landskas afgegeven worden.
14. Wordt besloten, dat bij het tot stand komen der vereeniging,
de zetel des Gouvernements te Pretoria gevestigd moet zijn.
15. Wordt besloten dat Lijdenburg het voile regt heeft om twee
leden voor den Uitvoerenden Raad te kiezen, waarvan een van hun
verpligt zal zijn voortdurend de vergadering bij te wonen.
16. Wordt besloten, dat zonder verzuim eene vaste brievenpost
moet opgerigt worden.
17. Wordt besloten dat de Commandant-Generaal volgens vroegere
aanstelling voor Lijdenburgs grondgebied zal blijven, en dat hij den
ambtseed, overeenkomstig de Grondwet moet afleggen ; en dat verder
door den vereenigden Uitvoerenden Raad, na de vaststelling der
vereeniging pogingen zullen aangewend worden om met algemeene
12. It is resolved that none of the state papers at present
in the Lijdenburg office shall be removed thence, but copies
shall always be supplied on the request of the Government on
payment of the fees specified by law.
13. It is resolved that the debts resting on Lijdenburg may
and shall be paid at the offices in the districts of the territory
of Lijdenburg according to art. 9; and further, that all debts
legally contracted by those public offices or Landdrosts’
offices shall be defrayed there by those public treasuries or
by the Landdrosts ; but the monies rightfully belonging to
the general public treasury for the maintenance of the whole
State shall from time to time be paid to the Government or
the general public treasury according to law and justice.
14. It is resolved that on the establishment of union the
seat of government shall be fixed at Pretoria.
15. It is resolved that Lijdenburg has the full right of
electing two members of the Executive Council of whom one
shall be bound to attend the meeting continually.
16. It is resolved that a regular post should be established
without delay.
17. It is resolved that the Commandant-General previously
appointed for the Lijdenburg territory shall remain in office
and that he shall take the oath of office prescribed by the
Grondwet ; and further, that after the establishment of the
union the combined Executive Council shall attempt to get
428 SOUTH AFRICAN REPUBLIC [1859
goedkeuring van het publiek slechts een Commandant-Generaal voor
de geheele Republiek te behouden.
1 8. De Landdrost van de plaats waar de zetel des Gouvernements
is, zal worden benoemd op voordragt van den Uitvoerenden Raad door
den Volksraad. Om daartoe benoembaar te wezen zal het geen ver-
eischte zijn reeds eenigen tijd burger van dezen Staat te zijn geweest.
De vaststelling van dit artikel wordt overgelaten aan het oordeel van
den vereenigden Volksraad.
19. Wordt besloten, dat indien eene vereeniging tot stand gebragt
wordt, van wederzijde de verpligting bestaat om alle voorwaarden
van deze vereeniging volkomen en getrouw na te komen. En indien
door het Gouvernement en door aandrang der ingezetenen van een der
beide tegenwoordig bestaande Republieken inbreuken op een of meer
artikelen gemaakt, en dezelve daardoor verbroken worden, dan zal
daardoor deze vereeniging niet verbroken of ontbonden worden, maar
zullen zij die daarop inbreuk hebben gemaakt volgens wet gestraft
worden ; de artikelen waarop inbreuk is gemaakt of die geschonden
zijn blijven evenwel hun voile kracht behouden.
20. Wordt besloten aangaande de zaak van den heer J. A. Smellen-
kamp, die gevonnisd is door den Volksraad op den 17 den Junij 1854
tot betaling van Rds. 500 boete, wegens beleedigende uitdrukkingen
jegens den WelEerw. D. van der Hoff en kerkeraad gebezigd, dat, in aan-
merking nemende, dat genoemd vonnis een der oorzaken is geworden
dat er eene verwijdering in deze maatschappij is ontstaan, dat den
the general public to agree to the retention of only one Com-
mandant-General for the whole Republic.
18. The Landdrost of the place where the seat of govern-
ment is, shall be appointed by the Volksraad on the recom-
mendation of the Executive Council. To be eligible for
nomination it shall not be necessary for a person to have
been a burgher of this State for some time. The adoption
of this article shall be left to the judgment of the combined
Volksraad.
19. It is resolved that if a union is brought about, the obliga-
tion shall rest on both parties to observe faithfully the con-
ditions of this union in their entirety. And if one or more of
the articles are violated by the Government and by pressure
on the part of the inhabitants of either of the Republics now
existing, then this union shall not be thereby dissolved or
nullified, but those who shall have committed the breach shall
be punished according to law ; the articles, however, which
have been broken or violated continue to be of full force.
20. With regard to the case of Mr. J. A. Smellenkamp, who
has been sentenced by the Volksraad on the I7th June 1854
to pay a fine of 500 Rix-dollars for abusive remarks made to
the Rev. D. Van der Hoff and the kerkraad, it is decided that,
taking into consideration that the said sentence became one
of the causes of estrangement in this community, the 500 Rix-
dollars shall be returned to the said Mr. J. A. Smellenkamp,
and that he shall, from this day (23 Nov. 1859), be exempted
1859] UNION WITH LIJDENBURG 429
genoemden heer J. A. Smellenkamp de Rds. 500 teruggegeven zullen
worden, en dat hij van af den dag van heden (23 November 1859) ont-
heven wordt van net vonnis van den Landdrost van Potchefstroom, in
dato 1 1 Julij 1854, waarbij hij is verbannen uit deze Republiek, en dat
niemand, wie hij ook zijn moge, van heden af (23 November 1859)
een dezer zaken in geschil of in proces mag brengen. De boete van
Rds. 500 zal door beide Staten gemaatschappelijk worden betaald,
volgens art. 9 dezer overeenkomst.
Het lid H. Buhrmann heeft zich bij de behandeling van dit artikel
van de stemming onthouden, op grond dat hij agent in de zaak van
den heer J. A. Smellenkamp is.
21. Wordt besloten dat de Grond wet der Z.A. Republiek wordt
aangenomen, voor zooverre die niet strijdig is met een der bovenstaande
en volgende voorwaarden van vereeniging.
22. Wordt besloten, dat alle verbeteringen die in de Grondwet of in
andere wetten, nog gemaakt kunnen worden daarin zonder verzuim
gebragt zullen worden.
23. Wordt besloten, dat als algemeene Staatsvlag de bestaande
vlag der Z.A. Republiek wordt aangenomen ; maar dat het district
Lijdenburg een districts vlag, welke ook niet strijdig met de Staatsvlag
is, blijft behouden, endataanelk district van den geheele Staat, indien
verkiezende, eene districtsvlag zal worden toegestaan, overeenkomstig
de vereischten der Staatsvlag.
24. Wordt besloten, dat het Gouvernement der Z.A. Republiek
en der Republiek Lijdenburg zorg zal dragen dat deze vereeniging
from the sentence of the Landdrost of Potchefstroom, dated
nth July 1854, by which he was banished from this Republic,
and that no person whatever may from this day (23 Nov. 1859)
open a dispute or commence proceedings with regard to any
of these matters. The fine of 500 Rix-dollars shall be paid
by both states together according to art. 9 of this agreement.
The member, H. Buhrmann, has refrained from voting
when this article was being dealt with, on the ground that
he is the agent of Mr. J. A. Smellenkamp in the case.
21. Resolved that the Grondwet of the S.A. Republic be
adopted in so far as it does not conflict with one of the preced-
ing or of the following conditions of union. ,
22. Resolved that all improvements which can still be
made in the Grondwet or in any of the other laws shall be
effected without delay.
23. Resolved that as the general flag of the State the
existing flag of the S.A. Republic be adopted ; but that the
district of Lijdenburg shall continue to have a district flag,
which, moreover, shall not be at variance with the State
flag, and that to each district of the whole State a district
flag shall be given, if it is desired, which flag shall be in accord-
ance with the requirements of the State flag.
24. Resolved that the Governments of the S.A. Republic
and of the Republic of Lijdenburg shall see to it that this
430 SOUTH AFRICAN REPUBLIC [1859
zoo spoedig mogelijk aan het publiek bekend gemaakt en aan den
vereenigden Volksraad ter bekrachtiging zal voorgelegd worden, bij
welke bekrachtiging de vereeniging der Staten geheel tot stand
gebragt is.
25. Wordt besloten en vastgesteld, dat, daar deze vereeniging
tusschen de Z.A. Republiek en Lijdenburg met vele moeijelijkheden
weder gelukkig tot stand gebragt is, dat niet toegelaten of gedoogd zal
worden dat door iemand, wie het ook zij, de nu bestaande vrede
gestoord zal worden, en dat om zulks te voorkomen bepaald worde
dat niemand het regt zal hebben om de voor deze bestaan hebbende
kwesties en al wat daarop betrekking heeft op te halen, en wie op deze
wijze de vrede tracht te verstoren gestraft zal worden met eene geld-
boete van Rds. 25 tot 500, of verder naar den aard der zaak.
26. Besloten, om den vereenigden Volksraad op te roepen en
deszelfs vergadering plaats zal hebben te Pretoria, op den eersten
Maandag in April 1860, en zullen de leden van beide zij den ‘s morgens
ten 10 ure aan het Landdrostkantoor moeten tegenwoordig zijn.
Aldus gedaan overeenkomstig Volksraadsbesluiten van beide
zij den, en de notulen onzer vergadering alhier.
LANDDROSTKANTOOR, RUSTENBURG, 24 November 1859.
M. W. PRETORIUS, President.
W. C. J. VAN RENSBURG.
J. H. GROBLER.
. … . H. T. BUHRMANN, G.S.
P. J. COETSER.
C. VlLJOEN.
A. F. SCHUBART, Gouvts. Secretaris.
union shall be made known to the public and shall be sub-
mitted to the combined Volksraad for its ratification, upon
which ratification the union shall be complete and effective.
25. Whereas this union of the S.A. Republic and Lijden-
burg has with great difficulty been happily brought about
again, it is resolved and declared that it shall not be suffered
that the now existing peace shall be disturbed by any person,
whoever he may be, and that in order to avoid such disturb-
ance of the peace it shall be laid down that no person shall
have the right to bring up for discussion the previously existing
disputes or anything that has any relation to them, and that
whoever attempts to disturb the peace in that way shall be
punished with a fine of 25 to 500 Rix-dollars or further punish-
ment according to the nature of the case.
26. Resolved to summon the combined Volksraad to
hold a meeting at Pretoria on the first Monday in April 1860,
and that the members of both sides shall be present at the
Landdrost’s office at 10 o’clock in the morning.
This done in accordance with Volksraad resolutions of
both parties and with the minutes of our meeting in this place.
LANDDROST’S OFFICE, RUSTENBURG, 24 Nov. 1859.
M. W. PRETORIUS, President [and others].
1870] JUSTICES 431
Goedgekeurd en geteekend op heden, den 4 den April 1860, te
Pretoria, door den vereenigden Volksraad van de Z.A. Republiek en
van Lijdenburg.
D. BOTHA, Voorzitter. J. N. GROBLER, Voorzitter.
F. G. WOLMARANS. P. J. D. STEENKAMP.
H. R. LEMMER. J. J. MALAN.
P. MARE. J. VAN DIJK.
H. VENTER. S. P. BOTHA.
H. W. PRETORIUS. W. STEENKAMP.
H. DUVENAGE. J. H. JACOBS.
D. S. D. DU PLESSIS. J. H. BREITENBACH.
L. M. BRONKHORST. F. R. JANSEN VAN RENSBURG.
T. F. J. STEYN. J. M. DE BEER.
J. H. GROBLER. A. B. JOUBERT.
G. SMIT. G. C. SCHOEMAN.
C. GROBLER.
P. J. VAN STADEN.
J. J. P. PRINSLOO.
Locale Wetten der Z.A. Rep. I. 133.
No. 189. VOOR VREDEREGTERS IN DE Z.A. REPUBLIEK.
[22 Julij 1870.]
WET No. 14, iS/o. 1
(Goedgekeurd en vastgesteld bij Volksraadsbesluit, dd. 3 Junij 1870,
art. 154.)
NADEMAAL het noodig gevonden is ter betere handhaving der wet,
dat Vrederegters in de verscheidene districten van dezen Staat zullen
worden aangesteld, met magt om alle misdadigers en rondloopers
binnen hun regtsgebied te arresteren, of te doen arresteren, en in de
gevangenis te plaatsen, om teregtgesteld te worden, en in alle andere
Approved and signed this 4th day of April 1860, at Pre-
toria, by the combined Volksraad of the S.A. Republic and
of Lijdenburg.
D. BOTHA, Chairman J. N. GROBLER, Chairman
[and others]. [and others].
No. 189. FOR JUSTICES OF THE PEACE IN THE
S.A. REPUBLIC. [22 July 1870.]
LAW No. 14, IJS70. 1
(Approved and confirmed by Resolution of the Volksraad dated
3 June 1870, art. 154.)
WHEREAS it has been found necessary for the better enforce-
ment of the law to appoint Justices of the Peace in the several
districts of this State with power to arrest or cause to be
arrested wrong-doers and vagrants within their jurisdiction,
to be tried by law, and in all other matters to issue such orders
1 Finally repealed by Prod. No. 34 of 1901.
432 SOUTH AFRICAN REPUBLIC [1870
zaken zoodanige bevelen en vonnissen te geven als bij de wet bepaald
zal worden. Zoo wordt mits dezen vastgesteld en bepaald als volgt :
ART. i. Zijn HEd. de Staatspresident zal de magt hebben, van tijd
tot tijd daar, waar zulks mogt vereischt worden, bevoegde personen als
Vrederegters aan te stellen voor een dorp, district of de geheele Zuid-
Afrikaansche Republiek, onder eene aanstelling door hem onderteekend
en met ‘s lands zegel belegd.
2. Alle Vrederegters zoo aangesteld, zullen de magt hebben om
beeedigde verklaringen af te nemen, op zoodanige verklaringen mis-
dadigers te doen arresteren en ter voorlopig onderzoek of teregtstelling
in de gevangenis te plaatsen of op te zenden naar de naastbij zijnde
gevangenis en zullen zij gehouden zijn daarvan dadelijk kennis te geven
aan den Publieken Aanklager van het district waar die misdaad heeft
plaats gevonden, met toezending van copijen der afgelegde verklaringen.
3. Alle Vrederegters zijn hierdoor gemagtigd, wanneer er geen
Landdrost aanwezig is, om op een beeedigde klagte door eenig persoon
gemaakt over dreigementen van aanranding en dergelijke misdaden
tegen het ligchaam of de goederen, en na zich overtuigd te hebben dat
zoodanige misdaad waarschijnlik zal gepleegd worden, den verdachten
persoon voor hem te ontbieden om voldoende borgen te stellen voor
zijn stil en rustig gedrag, en bij gebreke om daaraan te voldoen, zoo-
danig persoon in verzekerde bewaring te nemen of te doen nemen, en
van een en ander dadelijk aan den Staatsprocureur of zijn vertegen-
woordiger kennis te geven met toezending der borgacte.
and judgments as shall be specified by law : Therefore it is
declared and affirmed as follows :
ART. i. The State President shall have the power from
time to time, as the necessity may arise, to appoint as Justices
of the Peace competent persons for a town or district, or for
the whole South African Republic, under a commission signed
by him and sealed with the public seal.
2. All Justices of the Peace so appointed shall have the
power to take down sworn declarations, to cause wrong-doers
to be arrested on such declarations and to put them in prison
for preliminary examination or trial, or to send them to be
imprisoned in the nearest jail ; and they shall be held to give
immediate notice thereof to the Public Prosecutor of the
district where the crime was committed, and to despatch to
him copies of the declarations made.
3. Every Justice of the Peace is hereby empowered, when
no Landdrost shall be present, if a complaint shall be made
on oath by any person to the effect that threats of assault
and similar crimes against his person or property have been
made, and after having satisfied himself that such crimes are
likely to be committed, to summon the suspected person before
him to give sufficient security for his quiet and peaceful be-
haviour, and if he shall fail to do so, to place or cause to be
placed in secure confinement such person, and to report the
whole case to the State Attorney or his representative, at the
same time transmitting the deed of security.
1870.1 JUSTICES
4. Zijn HEd. de Staatspresident zal op de dofpen waar geen Land-
drost aanwezig is Resident Vrederegters kunnen aanstellen, die be-
halve de magt hierboven aan Vrederegters toegekend, bevoegd zullen
zijn om civiele en crimineele zaken te onderzoeken en te beslissen,
dagvaardingen uit te reiken en vonnis te vellen in crimineele zaken tot
3 maanden gevangenisstraf met of zonder harden arbeid in of zonder
ijzers en 25 slagen, of geldboete tot een bedrag van ^7, IDS. ; en in
civiele zaken voor alle eischen niet te bovengaande een bedrag van
j37, IDS. in liquide zaken, en van ^15 in illiquide zaken, buiten de kost,
zullende de vonnissen binnen den gewonen termijn in appel kunnen
gebragt worden voor den Landdrost van het district, die tot dat einde
alle drie maanden op den 3 den Woensdag der maand op het dorp, waar
zoodanig Vrederegter resideert, zal zitting houden.bij welke gelegenheid
de Vrederegter als klerk zal ageren.
5. [De Vrederegters zullen beeedigd worden.]
6. Deze wet zal kracht hebben volgens bepaling in art. 69 der
Grondwet.
M. ]. VILJOEN, Wd. Staatspresident.
(Op last) J. J. MEINTJES, Jr., Wd. Gouvts. Secretaris.
GOUVERNEMENTSKANTOOR,
PRETORIA, 22 Julij 1870.
Locale Wetten der Z.A. Rep. I. 412.
4. The State President is authorised to appoint Resident
Justices of the Peace in the towns where no Landdrosts are
stationed to exercise the power given above to Justices of the
Peace, and also to be competent to try and decide civil and
criminal cases, to issue summonses, and to pronounce judg-
ment in criminal cases not exceeding 3 months’ imprisonment,
with or without hard labour, in chains or without chains,
and [to order corporal punishment to be inflicted not exceed-
ing] 25 lashes ; or to impose fines to the sum of 7, los. ; and
in civil cases for all demands not exceeding the sum of
37, los. in liquid cases, and of 15 in illiquid cases not including
the costs. Such judgments shall be subject to appeal within
the usual period before the Landdrost of the district who for
this purpose shall hold a session every three months on the
3rd Wednesday of the month in the town where such Justice
of the Peace shall reside, on which occasion the Justice of the
Peace shall act as clerk.
5. [Justices to take an oath.]
6. This law shall take effect according to the provisions
of art. 69 of the Grondwet.
M. J. VILJOEN, A cting State President.
(By order) J. J. MEINTJES, Jr., Acting Govt. Sec.
GOVERNMENT OFFICE,
PRETORIA, 22nd July 1870.
28
434 SOUTH AFRICAN REPUBLIC
No. 190. VOLKSRAADSBESLUIT, 6 NOVEMBER 1871.
ART. 280. l De Volksraad besluit, dat artikel 61 der Grondwet zal
luiden als volgt :
” De Staatspresident wordt door meerderheid der stemgeregtigde
burgers gekozen, en zal in functie blijven voor den tijd van vijf jaren,
tenzij hij voor zijne betrekking moge bedanken, of om wettige redenen
ontslagen wordt door den Volksraad. Om verkiesbaar te zijn moet
hij den ouderdom van 30 jaren hebben bereikt, behoeft hij op den dag
zijner benoeming geen burger van dezen Staat te wezen, maar moet hij
lidmaat zijn van eene Protestantsche Kerk en geen onteerend vonnis
ten zijnen laste hebben.”
Locale Wetten der Z.A . Rep. I. 427.
No. 191. INSTRUCTIE VOOR DEN THESAURIER-GENERAAL.
[27 Dec. 1871.]
WET No. 6, 1871. l
(Goedgekeurd en vastgesteld bij besluit van den Volksraad, artt. 443 en 447,
da, $ en 6 December 1871.)
ART. i. De fmantieele aangelegenheden van de Zuid-Afrikaansche
Republiek, hetzij Staatsinkomsten of uitgaven, gewone of buitengewone,
en de administratie aan de landskas, behooren tot het resort van den
No. 190. RESOLUTION OF THE VOLKSRAAD,
6 NOVEMBER 1871.
ART. 280. x The Volksraad decides that article 61 of the
Grondwet shall read as follows :
” The State President shall be chosen by majority of the
votes of the burghers possessing the franchise, and shall remain
in office for the period of five years, unless he shall resign his
post or shall be dismissed by the Volksraad on lawful grounds.
To be eligible he must have reached the age of 30 years, and
it is not required that he shall on the day of his nomination
be a burgher of this State ; but he shall be a member of a
Protestant Church, and he shall have had no dishonouring
sentence passed against him.”
No. 191. INSTRUCTIONS TO THE TREASURER-
GENERAL. [27 Dec. 1871.]
LAW No. 6, 1871. l
(Sanctioned and confirmed by resolution of the Volksraad, arts.
443 and 447, dated 5 and 6 December 1871.)
ART. i. The financial relations of the South African Re-
public, the ordinary as well as the special revenues and ex-
penditure of the State, fall under the department of the
1 Repealed by Procl. No. 34 of 1901.
iSyi] TREASURER-GENERAL 435
Thesaurier-Generaal. Hij heeft het bestuur over de Gouvernements-
noten en over het vervaardigen en uitgeven van postzegels.
2. Van zijne geheele administratie moet hij behoorlijk boek en reke-
ning houden.
3. Hij moet bij het opmaken en vaststellen der Begroting, en
buitengewone uitgaven en de daartoe noodige en te voorziene middelen
toegelaten worden, en heeft tot dit einde in alle geldelijke aangelegen-
heden zitting en eene adviseerende stem in den Uitvoerenden Raad.
4. Alle Landdrosten en andere ambtenaren belast met geldelijke
administratie zijn ook verpligt duplicaat-rekening bij den Thesaurier-
Generaal in te dienen, en heeft hij daarop toe te zien dat dit tijdig en
op behoorlijke wijze geschiedt. Nalatige en in gebreke blijvende
ambtenaren is hij zoowel geregtigd als verpligt aan te schrijven en
des noods aan den Uitvoerenden Raad te rapporteren.
5. Alle met geldelijke zaken belaste ambtenaren moeten maan-
delijks het saldo in kas bij den Thesaurier-Generaal storten, in gebreke
waarvan zij zullen behandeld worden overeenkomstig het laatste
gedeelte van art. 4.
6. De Thesaurier-Generaal mag alleen rekeningen uitbetalen die
door den Auditeur-Generaal zijn goedgekeurd, en welke van de noodige
bewijzen van wettigheid en van eene behoorlijke volmagt tot uitbetaling
vergezeld zijn.
7. De Thesaurier-Generaal moet daarop stiptelijk toezien dat alle
publieke Staatsinkomsten werkelijk op den bepaalden tijd ingevorderd
Treasurer-General. He has the management of the Govern-
ment notes and of the making and issuing of postage stamps.
2. Of his whole administration he shall keep book and
account in a fitting manner.
3. For preparing and settling the budget or any special
expenditure, and the necessary means to be provided therefor,
he shall take session and have an advisory vote in the
Executive Council on all financial matters.
4. All Landdrosts and other officials charged with the
financial administration are in duty bound to hand in accounts
in duplicate to the Treasurer-General, who shall see to it that
this is accomplished in time and in a fitting manner. He is
authorised and charged to write to any negligent officials and,
if necessary, to report them to the Executive Council.
5. All officials charged with financial affairs shall every
month pay to the Treasurer-General the funds in hand. Fail-
ing to do this they shall be dealt with according to the last
part of art. 4.
6. The Treasurer-General shall settle only such accounts
as have been approved of by the Auditor-General, and are
accompanied by the necessary proofs of legality and proper
authorisation for settlement.
7. The Treasurer-General shall see to it strictly that all
public revenues are actually collected at the times specified,
436 SOUTH AFRICAN REPUBLIC [1871
worden en moet hij alle daarbij voorkomende ongeregeldheden en ver-
traging zonder verzuim aan den Uitvoerenden Raad bekend maken.
8. Ten einde buitengewone, niet op de Begrooting bepaalde uit-
gaven te bewerkstelligen, en waarvoor geene fondsen aanwezig zijn,
moet de Thesauri er-Generaal de middelen tot verkrijging der fondsen
voorstellen aan het gouvernement.
9. De Thesaurier-Generaal is verpligt in de eerste week van iedere
maand zijne maandstaten met toebehoren van de vorige maand bij den
Auditeur-Generaal in te dienen, pok zal hij alle zes en twaalf maanden
een staat van ontvangsten en uitgaven van ‘s lands kas in de Staats-
courant publiceeren ; en bij het einde van het finantieele jaar zijne
boeken behoorlijk afsluiten.
10. leder Landdrost en elk Hoofdambtenaar van den Staat zal
verpligt zijn een inventaris van Gouvernements eigendommen in zijn
departement, zooals gebouwen, gronden, kantoormeubels, enz. bij den
Thesaurier-Generaal in te dienen en de waarde of inkoopprijs daarvan
aangeven, en moeten nieuwe aangekochte meubels, gebouwen en an-
dere eigendommen dadelijk aan den Thesaurier-Generaal worden
gerapporteerd.
1 1 . De Thesaurier-Generaal zal alleen zulke rekeningen betalen
door den Auditeur-Generaal geteekend, welke zijn volgens Begrooting
of volgens besluit van den Uitvoerenden Raad.
12. Deze instructie zal onmiddelijk in werking treden.
Locale Wetten der Z.A. Rep. I. 457.
and he shall without delay inform the Executive Council of
the occurrence of any irregularities therein.
8. In order to arrange for special expenses which do not
appear in the budget, and for which no funds are available,
the Treasurer-General shall propose to Government the means
by which the funds may be procured.
9. During the first week of every month the Treasurer-
General shall submit to the Auditor-General his monthly re-
turns with the necessary papers for the previous month ; he
shall also, every six months and every year, publish in the
Staatscourant a statement of the receipts and expenditure of
the public treasury, and at the end of the financial year he shall
make up his books in a fitting manner.
10. Every Landdrost and every chief official of the State
shall submit to the Treasurer-General an inventory of the
Government property in his department, such as buildings,
lands, office furniture, etc., with the value or cost price specified ;
and the addition of new furniture, buildings and other property
shall immediately be reported to the Treasurer-General.
11. The Treasurer-General shall settle only such accounts
signed by the Auditor-General as shall be in accordance with
the budget or in accordance with a resolution of the Executive
Council.
12. These instructions shall take effect immediately.
1876] FRANCHISE LAW 437
No. 192. VOLKSRAADSBESLUIT, 25 JULIJ 1872.
Art. I36. 1 Aan de orde Uit. Raadsbesluit dd. 12 Julij 1872,
art. 20 :
Bij art. 3 van het Reglement van Orde te voegen : ” Tevens zal
geen ambtenaar van den Staat, die als zoodanig bezoldiging geniet, als
lid van den Volksraad verkiesbaar zijn.” a
Dit Voorstel van Wet wordt door den Volksraad met acclamatie
aangenomen.
Locale Wetten der Z.A. Rep. I. 465.
No. 193. REGELENDE HET ALGEMEEN KIESREGT DER
BURGERS VAN DE ZUID-AFRIKAANSCHE REPUBLIEK.
[12 Junij 1876.]
WET No. i, i876. 3
(Geodgekeurd en vastgesteld bij Volksraadsbesluiten, dd. 29 Met 1876,
artt. 61, 64, 67, 71, 75, 80 en 91.)
NADEMAAL het wenschelijk is, dat het kiesregt van de burgers der
Zuid-Afrikaansche Republiek nader bepaald en omschreven worde,
zij het hierbij vastgesteld als volgt :
ART. i. Elk burger van de Zuid-Afrikaansche Republiek zal ge-
No. 192. RESOLUTION OF THE VOLKSRAAD,
25 JULY 1872.
ART. 136. x On the agenda a resolution of the Executive
Council, dated 12 July 1872, art. 20 :
To add to art. 3 of the Rules of Order : ” Also, no official
of the State, who as such receives a salary, shall be eligible as
a member of the Volksraad.” 2
This proposed law is passed by acclamation by the Volks-
raad.
No. 193. REGULATING THE GENERAL FRANCHISE
OF THE BURGHERS OF THE SOUTH AFRICAN
REPUBLIC. [12 June 1876.]
LAW No. i, 1876.*
(Sanctioned and confirmed by resolutions of the Volksraad, dated
29 May 1876, arts. 61, 64, 67, 71, 75, 80, and 91.)
WHEREAS it is desirable further to lay down and define
the franchise of the burghers of the South African Republic,
be it hereby enacted as follows :
ART. i. Every burgher of the South African Republic
1 Repealed by Procl. No. 34 of 1901.
2 On 4 Sept. 1871 the Volksraad had passed a resolution, ” that Messrs.
Jeppe and Smit, though civil servants, are not prohibited by law from sitting
as members of the Volksraad.” Locale Wetten der Z.A . Rep. I. 41 7.
8 Modified by a subsequent franchise law, No. 7, 1882, and finally repealed
by Procl. No. 34 of 1901. Vide also the franchise law on p. 500,
438 SOUTH AFRICAN REPUBLIC [1876
regtigd zijn te stemmen bij verkiezingen, met inachtneming van de
hieronder volgende bepalingen :
a. Om burger te zijn moet men binnen de Republiek geboren
zijn en den ouderdom van 21 jaren bereikt hebben, be-
halve in de keuze van krijgsofficieren, wanneer de ouder-
dom van 1 8 jaren voldoende zal zijn.
b. Niet in de Republiek geboren, maar van elders komende,
moet men, om burger te zijn, eigenaar wezen van vast
goed binnen de Republiek. 1
c. lemand van elders komende en geen vastgoed in de Republiek
bezittende verkrijgt het burgerregt door een jaar in-
woning, gehoorzaamheid aan de wet en goed gedrag. 1
d. Geen persoon, buiten den Staat geboren als genoemd in
letter & en c en na het passeeren dezer wet in de Republiek
komende, zal stemgeregtigd zijn tenzij hij door het
afleggen van den volgenden eed, voor den daartoe
door de Regering aangestelden ambtenaar, als burger of
onderdaan dezer Republiek is genaturaliseerd : 1
” Ik beloof en zweer plegtig trouw aan het Volk en de
shall be entitled to vote at elections according to the following
regulations :
a. To be a burgher one shall have been born in the
Republic, and have reached the age of 21 years,
except when military officers are to be elected,
in which case the age of 18 shall suffice.
b. A person not born in the Republic but having come
in from elsewhere must, in order to become a
burgher, be the owner of immovable property
within the Republic. 1
c. A person coming in from elsewhere and possessing
no immovable property obtains burgher-rights
by one year’s residence, obedience to the laws
and good behaviour. 1
d. No person born outside the State, as mentioned
under the letters b and c, and coming into the
Republic after the passing of this law, shall
possess the franchise unless, by taking the
following oath before an official appointed by
Government for that purpose, he shall become
naturalised as a burgher or subject of this
Republic : 1
” I promise and solemnly swear to be true
to the People and the Government of this Re-
1 Law No. 7, 1882, demanded of foreigners the acquirement of papers
of naturalisation after 5 years’ residence, or the taking of an oath of fidelity.
But surely this is an error : instead of of (or) in sub-sect, b of art. I we ought to
read en (and), so that both the 5 years’ residence and the oath were required.
Locale Wettender Z.A. Pep. I. 1131-32.
1876] FRANCHISE LAW 439
Regering dezer Republiek, gehoorzaamheid aan de wetten
en trouw aan hare onafhankelijkheid.”
2. Niemand, die niet tot de blanke bevolking 1 van de Z.A. Repu-
bliek wordt gerekend, zal als stemgeregtigde burger aangeteekend
worden, volgens art. 9 der Grondwet.
3. De in bovenstaande artikelen vermelde burgers hebben het regt
om hunne namen als kiezers te doen aanteekenen bij hunne respectieve
Veldcornetten.
4. Alleen de aldus aangeteekende stemgeregtigden hebben het regt
om hunne stemmen uit te brengen als volgt :
a. Voor het kiezen van een Veldcornet der wijk, elk in zijne
eigene wijk.
b. Voor een Raadslid zijner wijk of kiesafdeeling.
c. Voor elke verkiezing die het geheele district betreft.
d. Voor elke verkiezing die de geheele Republiek betreft.
5. Niemand mag deel nemen of zijn stem uitbrengen bij eene
verkiezing, voor een wijk of een district, waarin hij niet op de lijst der
kiezers is aangeteekend.
6. Elk stemgeregtigde van een distrikt, dat niet in kiesafdeelingen
verdeeld is, kan zijne stem uitbrengen op zoovele kandidaten als er
vakaturen zijn, waarvoor gestemd moet worden.
7. Elk stemgeregtigde burger, die zijn stem wenscht uit te brengen
op een kandidaat, moet den dag of de dagen, het uur of de uren, en de
public, to yield obedience to the laws and allegi-
ance to its independence.”
2. No person not regarded as belonging to the white popula-
tion 1 of the S.A. Republic shall be enrolled as a burgher
possessing the franchise, according to art. 9 of the Grondwet.
3. The burghers as mentioned in the above articles have
the right to have their names enrolled as electors by their
respective Field-cornets.
4. Only those thus enrolled as possessing the franchise
have the right to record their votes as follows :
a. For electing a Field-cornet of a ward each one shall
vote in his own ward.
b. For a member of the Raad to represent his ward
or electoral division.
c. At every election which concerns the whole district.
d. At every election which concerns the whole Re-
public.
5. No one may take part or record his vote at an election
for a ward or a district in which he is not entered on the voters’
roll.
6. Every elector of a district which is not divided into
electoral divisions can record his vote for as many candidates
as there are vacancies that must be filled.
7. Every burgher possessing the franchise who wishes to
record his vote for a candidate must take note of the day or
1 Attempts to specify those classes of people who were not regarded as
white were made in Law No. 2, 1883, art. 6, and Law No. 3, 1885, arts, i and a.
440 SOUTH AFRICAN REPUBLIC [1876
plaats van stemming, door de daartoe aangestelde stemopnemers te
worden bepaald, in acht nemen, en in persoon verschijnen, ten einde
zulks te doen.
8. [Dadelijk na den afloop der stemming zullen nog denzelfden
dag al de stembiljetten naar den Landdrost verzonden worden en
door hem aan den Staatssecretaris.]
9. Elk Veldcornet is verpligt jaarlijks in de maanden November
en December aanteekening te doen van al de stemgeregtigden in zijne
wijk, en zal tevens verpligt wezen op verzoek van nieuwe ingekomene
burgers aanteekening te doen.
10. Hij zal daarvan behoorlijk boek houden en een gecertificeerde
afschrift daarvan aan den Landdrost van zijn district toezenden. . . .
1 1 . De Veldcornet heeft het regt te weigeren om den naam van
iemand aan te teekenen wanneer hij vermeent daarvoor gegronde
redenen te hebben, welke redenen echter wanneer de tegenpartij ver-
kiest, aan het oordeel van den Landdrost of desverkiezende aan het
oordeel van den Uitv. Raad zullen worden overgelaten.
12. De Landdrost van ieder district zal jaarlijks in de maand
Ferbruarij van elk der in art. 10 vermelde copien een gecertificeerde
afschrift aan den Staatssecretaris opzenden.
Ookzalhij delijsten derkiezersdoenpublicerenindeStaatecoMraw*
13. Het volgens bovenstaande bepalingen verkregen kiesregt gaat
verloren of wordt vernietigd als volgt :
a. Door het verbeuren of verliezen van zijn burgerregt.
6. Door het met ter woon verlaten der Republiek.
days, the hour or hours, and the place of voting to be fixed by
the recording officer appointed for that purpose, and he must
appear in person in order to do so.
8. [Immediately after the completion of the poll and on
the same day, all the voting-papers shall be sent to the Land-
drost to be forwarded to the State Secretary.]
9. Every Field-cornet is bound annually in the months of
November and December to make a register of all those entitled
to vote in his ward, and he shall further be bound to enrol
newly arrived burghers on request being made by them.
10. He shall keep book properly thereof, and shall send a
certified copy thereof to the Landdrost of his district. . . .
11. The Field-cornet has the right to refuse to enrol the
name of a person when he believes he has good reasons for
so doing, which reasons, however, should the party wish it,
shall be left to be decided on by the Landdrost, or, if this be
preferred, by the Executive Council.
12. The Landdrost of each district shall annually in the
month of February send to the State Secretary a certified
copy of each of the copies mentioned in art. 10.
He shall also publish the lists of voters in the Staats-
courant. . . .
13. The franchise obtained according to the above articles
is lost or nullified in the following ways :
a. By any person forfeiting or losing his burgher right.
b. By removal from the Republic to reside elsewhere,
1876] FRANCHISE LAW 441
c. Door het verhuizen of vertrekken uit de eene wijk of district
naar een andere, wanneer men zich op nieuw moet laten
aanteekenen in de wijk of het district waar men zich met
ter woon vestigt.
d. Door het ontvangen van crimineele vonnissen, die onteerend
zijn.
14. lemand kan ook zijn kiesregt verbeuren door hetzelve in strijd
met deze wet uit te brengen.
15. Die zich tot het kiezen van den eenen of anderen kandidaat
heeft laten omkoopen verliest zijn kiesregt.
1 6. Overtreders dezer wet, volgens art. 15, zullen bovendien
gestraft worden met eene boete van 5 tot 10, of gevangenisstraf van
niet meer dan drie maanden, naar den aard der zaak.
i/. 1 Alle vroegere bepalingen, wetten en besluiten omtrent kiesregt
v66r ket passeren dezer wet van kracht, worden hiermede herroepen,
behalve de wet of de regulatien die omtrent de verkiezing van leden
van de Goudvelden bestaan, welke in voile kracht blijven.
1 8. Burgers die in lands dienst op kommando van hunne kiesaf-
deeling afwezig zijn, bij geval van eenige belangrijke kiezing, zullen
het regt hebben om bij eenigen ofncier of stemopnemer, daartoe bevoegd,
hunne stem uit te brengen op tijd en plaats, welke behoorlijk aldaar
zal vastgesteld worden, indien zoodanige burgers aan de andere
vereischten dezer wet voldoen. . . .
c. By moving or departing from one ward or district
to another, when it is necessary to be enrolled
anew in the ward or district where residence is
taken up.
d. By being convicted of any infamous crime.
14. A person may also forfeit his franchise by exercising
it in a manner contrary to this law.
15. Any person who has accepted a bribe to vote for any
candidate loses his franchise.
16. Those who contravene this law according to art. 15
shall moreover be punished with a fine of 5 to 10 or with
imprisonment lasting not more than three months, according
to the nature of the case.
17. J All earlier regulations, laws and resolutions regarding
the franchise, which were in force prior to the passing of this
law, are hereby repealed, except such law or regulations as
exist for the election of members of the gold-fields. These
remain in full force.
18. Burghers who are absent from their electoral division
in the country’s service on commando on the occasion of any
important election, shall have the right to record their votes
with any officer or recorder of votes authorised thereto, at a
time and place properly fixed there, provided that such burghers
shall conform to the other demands of this law. . . .
* This article was omitted in Law No, 7, 1882,
442 SOUTH AFRICAN REPUBLIC [1876
19. [De bij de wet benoemde stemopnemers zullen beeedigd worden
en zullen een salaris genieten.]
20. Hun eed zal zijn als volgt : [Eed weggelaten.]
21. Deze wet zal in werking treden volgens art. 69 der Grondwet.
Locale Wetten der Z.A. Rep. I. 645.
No. 194. VOOR DEN KRIJGSDIENST. [6 Junij 1876.]
WET No. 2, 1876.*
(Goedgekeurd en vastgesteld bij Volksraadsbesluit, dd. 2 Junij 1876,
artt. 94, 96 en 97.)
ART. i. De Staatspresident, met toestemming van den Uitvoerenden
Raad, verklaart oorlog en vrede. 2
Het vredestractaat behoeft de goedkeuring van den Volksraad,
die daartoe zoo spoedig mogelijk wordt zamengeroepen.
2. De Staatspresident, met toestemming van den Uitvoerenden
Raad, geeft last tot een commando, doch in geval de Uitv. Raad niet
tijdig genoeg bijeen kan komen, kan de Staatspresident 3 zulks doen
buiten hen en zulks ter zijner verantwoording.
3. Onder een commando wordt in deze wet verstaan het uitgaan
19. [The recorders of votes nominated by law shall be
sworn and shall receive a salary.]
20. Their oath shall be as follows : [Not copied.]
21. This law shall take effect according to art. 69 of the
Grondwet.
No. 194. FOR MILITARY SERVICE. [6 June 1876.]
LAW No. 2, 1876. *
(Sanctioned and confirmed by resolution of the Volksraad, dated
2 June 1876, arts. 94, 96, and 97.)
ART. i. The State President, with the concurrence of the
Executive Council, declares war and concludes peace. 2
Any treaty of peace needs the approval of the Volksraad,
which shall be summoned as soon as possible for that purpose.
2. The State President, with the concurrence of the Ex-
ecutive Council, gives orders for sending out a commando,
but in case the Executive Council can not meet in time, the
State President 3 can do so without its concurrence and on his
own responsibility.
3. By a commando is understood in this law the going out
1 Superseded by Law No. 2, 1883, and finally repealed by Procl. No. 34 of
1901.
8 Law 2, 1883, provides that if possible the Volksraad shall first be sum-
moned.
* Law 2, 1883, says, “the President by the advice of the Comman4ant-
General in his capacity as member of the Executive.”
1876] MILITARY LAW 443
van gewapende burgers en onderdanen van den Staat ter zake der
opstanden van kleurlingen of tot demping van onlusten onder de blanke
bevolking.
4. Nadat de burgers tot den krijgsdienst zullen opgeroepen zijn,
zullen zij staan onder het gezag en bevel van de volgende officieren,
zijnde naar rang van opklimming, die verantwoordelijk zijn volgens
de Grondwet : Assistent Veldcornetten, Veldcornetten, Commandanten
en Commandant-Generaal.
Voor ieder district wordt een Commandant gekozen door de Veld-
cornetschappen van het district v66rdat zij zulks verlaten zullen
hebben, op zoodanigen dag en plaats als door ZHEd. den Staatspresi-
dent zal worden bepaald.
De Commandant-Generaal wordt gekozen door het geheele leger, 1
op zoodanige plaats en tijd als door ZHEd. den Staatspresident zal
worden bepaald.
Het salaris van den Commandant-Generaal wordt bepaald op een
pond tien shillings sterling per dag, wanneer hij in dienst is, en dat
van de commandanten op vijftien shillings per dag wanneer zij in
dienst zijn.
5. De Staatspresident, met den Uitvoerenden Raad, geeft last tot
alle oproepingen voor oorlog of commandos, 2 en heeft het opperbevel
over het gehele leger.
of armed burghers and subjects of the State in the event of
risings of coloured people, or to put down disturbances among
the white population.
4. After the burghers shall have been called up for military
service they shall stand under the authority and command of
the following officers, from the lowest upwards, which officers
shall be responsible according to the Grondwet : Assistant
Field-cornets, Field-cornets, Commandants and the Command-
ant-General.
For each district a Commandant shall be chosen by the
Field-cornetcies of the district before they shall have departed
from it, on such day and at such place as shall be fixed by
the State President.
The Commandant-General shall be chosen by the whole
army, 1 at such place and time as shall be fixed by the State
President.
The salary of the Commandant-General shall be fixed at
one pound ten shillings sterling per day while he is serving,
and that of the Commandants at fifteen shillings per day while
they are serving.
5. The State President, together with the Executive Council,
gives orders for any calling-up for war or commandos, 2 and has
the supreme command of the whole army.
1 This provision is omitted from Law No. 2, 1883.
2 Law No. 2, 1883, art. 5, places the duty of calling-up on the Commandant-
GeneraJ.
444 SOUTH AFRICAN REPUBLIC [1877
6. Alle ingezetenen fusschen 1 6 en 60 jaren oud, die geene wettelijke
reden van verschooning hebben, zijn verpligt krijsdienst te doen. 1
Jongelieden beneden 18 jaren oud en mannen boven de 50 zullen
niet dan in de uiterste noodzakelijkheid worden opgeroepen.
De kleurlingen die in staat zijn om in den krijg van dienst te wezen,
kunnen opgeroepen worden.
7. [Vrijstellingen door de wet erkend.]
8. [Vrijgestelden zijn verplicht bijdragen te doen.]
9-44. [Bovengemelde bepalingen meer in ‘t bijzonder behandeld.]
Locale Wetten der Z.A. Rep. I. 649.
No. 195. VOLKSRAADSBESLUIT, 15 JUNIJ 1876.
ART. 230. De Volksraad besluit omtrent de zaak thans aan de
orde, 2 af te keuren dat de Uitv. Raad in strijd met de Grondwet zich
als een regterlijk lichaam boven een vonnis van het Hoog Geregtshof
gesteld heeft. Locale Wetten der Z.A. Rep. I. 669.
No. 196. VOLKSRAADSBESLUIT, 7 MAART 1877.
ART. 32. Aan de orde, het voorstel der Commissie vervat in het
rapport.
Dit voorstel wordt algemeen aangenomen.
6. All inhabitants between the ages of 16 and 60, who have
no lawful grounds for exemption, are bound to perform military
service. 1
Youths below 18 years of age and men above 50 shall not
be called up except in case of extreme need.
The coloured people who are able to be of service in war are
liable to be called up.
7. [Exemptions provided for by law.]
8. [Those exempted shall be held to make contributions.]
9-44. [The above provisions dealt with in greater detail.]
No. 195. RESOLUTION OF THE VOLKSRAAD,
15 JUNE 1876.
ART. 230. With regard to the matter now under discussion 2
the Volksraad resolves to express its disapproval of the action
of the Executive Council in having placed itself as a judicial
body above a sentence of the High Court of Justice in contraven-
tion of the Grondwet.
No. 196. RESOLUTION OF THE VOLKSRAAD,
7 MARCH 1877.
ART. 32. On the agenda, the proposal of the Committee
contained in the report.
This proposal is adopted unanimously.
1 Law No. 2, 1883, provides that a man called up may supply a substitute
to be approved of by his Field-cornet.
Resolution of the Executive, 12 June 1876, art. 108, setting aside a
sentence of the High Court at Zeerust, in Munnich v . Baumann.
1877] BRITISH INTERFERENCE 445
De Volksraad besluit :
Dat, daar H.M.’s Specialen Commissaris, volgens zijn Excellenties
uitgedrukt gevoelen, van oordeel is, dat de onafhankelijkheid der
Republiek niet gered of gewaarborgd kan worden door veranderingen
en hervormingen.
En de Volksvertegenwoordiging ten voile bereid is om alle gronden
van grieven tegen den Staat, hetzij deze in schjn of werkelijkheid
bestaan uit den weg te ruimen en tevens gereed is doortastende
maatregelen te nemen, gelijk zij reeds gedaan heeft, ter voorkoming
van die ongeregeldheden waarover geklaagd wordt en tot betere regeling
en bewaring van den vrede en de goede orde.
En het duidelijk blijkt uit den brief aan Zijne Excellentie Sir Henry
Barkly, met de daarbij gevoegde documenten, dat Harer Majesteits
Regering niet van zin is de Republiek tegen haren zin te dwingen tot
prijsgeving van hare onafhankelijkheid.
En tevens de Raad ten voile vertrouwt op de regtvaardigheid van
Harer Majesteits Regering en verzekerd is dat zij niet zou kunnen
gebieden om den burgers der Republiek hun heiligste goed te ont-
vreemden.
De Regering op te dragen om met Haren Britschen Majesteits
Specialen Commissaris in onderhandeling te treden, met het doel om
de zelfstandigheid van den Staat te handhaven en tevens zoodanige
tractaten te sluiten als noodig moogen zijn tot bewaring van de goede
verstandhouding tusschen de Republiek en Harer Britsche Majesteits
The Volksraad decides :
That, as H.M.’s Special Commissioner, according to His
Excellency’s expressed views, is of opinion that the inde-
pendence of the Republic cannot be saved or guaranteed through
changes or reforms ;
And as the representative body is fully prepared to remove
all grounds of grievance against the State, whether these
actually exist or in appearance only, and is further prepared
to take far-reaching measures as it has already done in
order to avoid those irregularities of which complaint is being
made, and for the better preservation of peace and good
order ;
And as it clearly appears from the letter of His Excellency
Sir Henry Barkly and the documents attached thereto, that
Her Majesty’s Government are not minded to force the Re-
public against its wish to sacrifice its independence ;
And as the Raad further has full faith in the justice of Her
Majesty’s Government, and is convinced that it would not
command the burghers of the Republic to be deprived of their
most sacred possession ;
That therefore the Government be instructed to enter into
communication with Her Britannic Majesty’s Special Com-
missioner, with a view to maintaining the autonomy of the
State, and further to conclude such treaties as may be necessary
for preserving the good understanding between the Republic
and Her Britannic Majesty’s Government and for maintaining
446 SOUTH AFRICAN REPUBLIC [1877
Regering en tot handhaving van de algemeene veiligheid van Zuid
Afrika, orde en rust, ten opzigte van de Naturallen.
Locale Wetten der Z.A. Rep. I. 683.
No. 197. GOUVERNEMENTS KENNISGEVING.
Ter algemeene informatie wordt onderstaand Uitv. Raadsbesluit,
dd. ii April 1877, art. 7, hiermede gepubliceerd.
THOS. BURGERS, Staatspresident.
GOUVERNEMENTSKANTOOR,
PRETORIA, 11 April 1877.
GOUVERNEMENTSKANTOOR, Z.A. REPUBLIEK,
PRETORIA, 11 April 1877.
Aan de order :
Brief van Harer Britsche Majesteits Specialen Commissaris, dd.
9 April 1877, kennis gevende dat Zijne Excellentie tot het besluit is
gekomen, om zonder verzuim het Britsch gezag te proclameren over
de Zuid Afrikaansche Republiek.
Besloten : Dat nademaal H.B. Majesteits Regering bij de Con-
ventie van Zandrivier in 1852, plegtig de onafhankelijkheid van het
volk ten noorden van de Vaalrivier heeft gewaarborgd, en dat nademaal
de Regering van de Zuid Afrikaansche Republiek zich niet bewust is
ooit eenige reden tot eene vijandige handeling te hebben gegeven aan
H. Majesteits Regering, noch ooit eenigen grond voor zulk een daad
van onverwijld geweld ; dat, nademaal deze Regering zich steeds
the general security, order and peace of South Africa with
regard to the natives.
No. 197. GOVERNMENT NOTICE.
For general information the following resolution of the
Executive Council, dated nth April 1877, art. 7, is published
herewith.
THOS. BURGERS, State President.
GOVERNMENT OFFICE,
PRETORIA, nth April 1877.
GOVERNMENT OFFICE, S.A. REPUBLIC,
PRETORIA, nth April 1877.
On the agenda :
A letter from Her Britannic Majesty’s Special Commis-
sioner, dated 9 April 1877, notifying that His Excellency has
decided to proclaim British authority over the South African
Republic without delay.
Decided : That whereas H.B. Majesty’s Government at the
Sand River Convention of 1852 has solemnly guaranteed the
independence of the nation to the north of the Vaal River, and
whereas the Government of the South African Republic is
not aware that it has ever given to H. Majesty’s Government
any cause for a hostile act or any ground for such an act of
1877] BRITISH INTERFERENCE 447
bereid heeft getoond en nog bereid is alles te doen wat van haar met
regt en billijkheid kan gevorderd worden, tevens alle oorzaken van
ontevredenheid die er mogen bestaan uit den weg te ruimen ; aangezien
tevens zij bij herhaling zich volkomen bereid heeft verklaard om met
H.M. Regering zoodanige tractaten te sluiten of verbindtenissen aan te
gaan als noodig moge geoordeeld worden voor de algemeene beveiliging
van de blanke bevolking van Zuid Afrika, en gewillig is zoodanige
verbindtenissen stiptelijk na te komen ; aangezien dat volgens publieke
verklaringen van H.M. Minister van Kolonien, Lord Carnarvon, er
geene begeerte bestaat bij de Britsche Regering om het volk der Zuid
Afrikaansche Republiek tegen zijn zin onder haar gezag te dwingen ;
en nademaal het volk, hetzij door memorien of anderzins, bij groote
meerderheid duidelijk heeft te kennen gegeven, er niet toe genegen te
zijn ; en nademaal de Regering overtuigd is niet in staat te zijn tegen-
over de overmagt van Groot Britannic de regten en onafhankeli jkheid
des volks met het zwaard te handhaven, en bovendien in geenen deele
een stap wenscht te nemen, waardoor de blanke inwoners van Zuid
Afrika in het aangezigt van den gemeenschappelijken vijand tegenover
elkander zouden worden verdeeld of in vijandelijke aanraking met
elkander komen, tot groot onheil van de gansche Chris telijke bevolking
van Zuid Afrika, v66r dat allereerst tot het laatste middel toe is beproefd
om langs vreedzamen weg en vriendschappelijke bemiddeling de regten
des volks te verzekeren zoo protesteert de Regering ten sterkste
tegen deze handelwijze van H.M. Specialen Commissaris en besluit
uncompromising violence ; and whereas this Government has
always shown itself willing and is still willing to do everything
that can in justice and equity be demanded of them, and to
remove all causes of dissatisfaction that may exist ; considering
also that they have repeatedly declared themselves fully pre-
pared to enter into such treaties or agreements with H.M.’s
Government as may be deemed necessary for the general
security of the white population of South Africa, and as they
are willing to observe strictly such agreements ; considering
that according to public declarations of H.M.’s Minister of
Colonies, Lord Carnarvon, there exists on the part of the
British Government no desire to force the people of the South
African Republic under its authority against their will ; and
whereas the people have by petitions as well as in other ways
clearly indicated that they are not so inclined ; and whereas
the Government is convinced that it is not able to maintain
with the sword the rights and the independence of the people
against the superior power of Great Britain, and moreover by
no means wishes to take a step by which the white inhabitants
of South Africa would be divided against each other in the
face of the common enemy, or would come into hostile contact
with one another, greatly to the detriment of the whole Christian
population of South Africa, before having first attempted to
assure the rights of the people in a peaceful manner and by
friendly mediation,
Therefore the Government most strongly protests against
this action of H.M.’s Special Commissioner, and decides further
44$ SOUTH AFRICAN REPUBLIC [1877
tevens eene commissie van afgevaardigden onverwijld naar Europa
en Amerika te zenden, met volmagt en instructie om, des vereischt,
een derden persoon bij zich te voegen, ten einde te beproeven aldaar
in de eerste plaats de belangen en wenschen des volks voor H.M. Regering
te leggen, en zoo dit geen gewenscht gevolg moge hebben, hetgeen de
Regering diep zou betreuren, en alsnog niet kan gelooven, dan te trachten
de vriendschappelijke hulp en bemiddeling van andere mogendheden
in te roepen, en allereerst van die, welke de onafhankelijkheid van
dezen Staat hebben erkend. Tot leden van die commissie worden
benoemd, de WelEd. Gestr. heeren Dr. E. J. P. Jorissen, Staatspro-
cureur, en S. J. P. Kruger, Vice-President van de Zuid Afrikaansche
Republiek.
Locale Wetten der Z.A . Rep. I. 698.
immediately to send a commission of delegates to Europe
and America, empowered and instructed to add a third
person to their number should this seem necessary, in order
first of all to attempt to lay the interests and the wishes of
the people before H.M.’s Government, and should this not
have the desired effect, which would deeply grieve the
Government, and which as yet they can not believe will
happen, then to try to call in the friendly assistance and
mediation of other Powers, beginning with those who have
acknowledged the independence of this State. As members
of that commission are appointed Dr. E. J. P. Jorissen, the
State Attorney, and S. J. P. Kruger, Vice-President of the
South African Republic.
No. 198. ANNEXATION OF THE S.A. REPUBLIC TO
THE BRITISH EMPIRE. [12 April 1877.]
Proclamation. By His Excellency Sir THEOPHILUS SHEP-
STONE, Knight Commander of the Most Distinguished
Order of St. Michael and St. George, Her Majesty’s Special
Commissioner for certain purposes in South Africa.
WHEREAS at a meeting held on the sixteenth day of
January, in the year of our Lord one thousand eight hundred
and fifty-two, at the Sand River, between Her Majesty’s
Assistant Commissioners, Major Hogge and C. M. Owen, Esq.,
on the one part, and a deputation from the emigrant farmers
then residing north of the Vaal River, at the head of which was
Commandant-General A. W. J. Pretorius, on the other part,
the said Her Majesty’s Assistant Commissioners did ” guaran-
tee in the fullest manner on the part of the British Government
to the emigrant farmers north of the Vaal River the right to
manage their own affairs, and to govern themselves according
to their own laws, without any interference on the part of
the British Government ” :
1877] THE ANNEXATION 449
And whereas the evident objects and inciting motives of
the Assistant Commissioners in granting such guarantee or
permission to persons who were Her Majesty’s subjects, were
” to promote peace, free trade and friendly intercourse ”
with and among the inhabitants of the Transvaal, in the hope
and belief that the territory which a few years afterwards,
namely, in February 1858, became known by the style and
title of ” The South African Republic,” would become a flourish-
ing and self-sustaining State, a source of strength and security
to neighbouring European communities, and a point from
which Christianity and civilisation might rapidly spread
towards Central Africa :
And whereas the hopes and expectations upon which this
mutual compact was reasonably and honourably founded have
been disappointed, and the circumstances as set forth more
at length in my Address to the people, of to-day’s date, here-
unto attached, 1 show that increasing weakness in the State
itself on the one side and more than corresponding growth
of real strength and confidence among the native tribes on
the other, have produced their natural and inevitable con-
sequences, as will more fully appear from a brief allusion to
the facts that, after more or less of irritating contact with
aboriginal tribes to the north, there commenced about the
year 1867 gradual abandonment to the natives in that direction
of territory settled by burghers of this State, in well-built
towns and villages, and on granted farms ; that this was
succeeded by the extinction of all effective rule over extensive
tracts of country included within the boundaries of the State,
and as a consequence of the practical independence, which
still continues, of large native tribes residing therein who had
until then considered themselves subjects :
That some few farmers, unwilling to forfeit homes which
they had created for their families, and to which they held
grants from the Government of the Transvaal, which grant
had, however, ceased, and still fail to protect them in their
occupation, made terms with the native chiefs, and now
occupy their farms on conditions of periodical payments to
those chiefs, notwithstanding the acknowledgment which such
payments involve :
That this decay of power and ebb of authority in the north
is being followed by similar processes in the south under yet
more dangerous circumstances, people of this State residing in
that direction having been compelled within the last three
months at the bidding of native chiefs, and at a moment’s
notice, to leave their farms and homes, their standing crops,
some of which were ready for reaping, and other property,
1 Attempts to find this Address have not been successful.
29
450 SOUTH AFRICAN REPUBLIC [1877
all to be taken possession of by natives, but that the Govern-
ment is more powerless than ever to vindicate its assumed
rights, or to resist the declension that is threatening its exist-
ence. That all confidence in its stability once felt by sur-
rounding and distant European communities has been with-
drawn. That commerce is well-nigh destroyed. That the
country is in a state of bankruptcy. That the white inhabi-
tants, discontented with their condition, are divided into
factions. That the Government has fallen into helpless
paralysis from causes which it has been and is unable to con-
trol or counteract. And that the prospect of the election of a
new President, so far from allaying the general anxiety, or
from inspiring hope in the future, is looked forward to by all
parties as most likely to result in civil war, with its attendant
anarchy and bloodshed.
That the condition above described affords strong tempta-
tion to neighbouring native powers, who are known to be
anxious and ready to do so, to make attacks and inroads
upon the state, which from its weakness it cannot repel, and
from which it has hitherto been saved by the restraining
influence of the British Government, exercised from Natal by
Her Majesty’s representative in that colony, in the hope, yet
unfulfilled, that a friendly understanding might be arrived at
between the Government of the Transvaal and the complaining
native chiefs :
That the Sicocoeni war, which would have produced but
little effect upon a healthy constitution, has not only proved
suddenly fatal to the resources and reputation of the Republic,
but has shown itself to be a culminating point in the history
of South Africa, in that a Makatee or Basuto tribe, unwarlike,
and of no account in Zulu estimation, successfully withstood
the strength of the state, and disclosed for the first time to
the native tribes outside the Republic, from the Zambesi to
the Cape, the great change that had taken place in the relative
strength of the white and the black races. That this dis-
closure at once shook the prestige of the white man in South
Africa, and placed every European community in peril. That
this common danger has caused universal anxiety, has given to
all concerned the right to investigate its causes, and to protect
themselves from its consequences, and has imposed the duty
upon those who have the power to shield enfeebled civilisation
from the encroachments of barbarism and inhumanity :
And whereas the inherent weakness of this Government
and state, from causes above alluded to, and briefly set forth,
and the fact that the past policy of the Republic has not only
failed to conciliate the friendship and goodwill, but has for-
feited the respect of the overwhelming native populations
1877] THE ANNEXATION 451
within and beyond its boundaries, which together probably
exceed one and a half million, render it certain that the
Transvaal will be the first to suffer from the consequences of
a pressure that has already reduced its political life to so
feeble a condition :
And whereas the ravaging of an adjoining friendly state
by warlike savage tribes cannot for a moment be contemplated
by Her Majesty’s Government without the most earnest and
painful solicitude, both on account of the miseries which such
an event must inflict upon the inhabitants of the Transvaal,
and because of the peril and insecurity to which it would
expose Her Majesty’s possessions and subjects in South Africa,
and seeing that the circumstances of the case have, from the
inherent weakness of the country already touched upon,
become so grave that neither this country nor the British
colonies in South Africa can be saved from the most calamitous
circumstances except by the extension over this state of Her
Majesty’s authority and protection, by means of which alone
oneness of purpose and action can be secured, and a fair
prospect of peace and prosperity in the future be established :
And whereas I have been satisfied by numerous addresses,
memorials, and letters which I have received, and by the
abundant assurances which personal intercourse has given
me, that a large proportion of the inhabitants of the Transvaal
see in a clearer and stronger light than I am able to describe
them, the urgency and imminence of the circumstances by
which they are surrounded, the ruined condition of the country,
and the absence within it of any element capable of rescuing
it from its depressed and afflicted state, and therefore earnestly
desire the establishment within and over it of Her Majesty’s
authority and rule ; and whereas the Government has been
unable to point out or devise any means by which the country
can save itself, and as a consequence relieve the other white
communities of South Africa from the danger of the dire
events, certain speedily to result from the circumstances by
which it is surrounded, and can entertain no reasonable hope
that it possesses, or is likely under its present form of govern-
ment to possess, the means to raise itself to a safe and prosperous
condition :
And whereas the emergency seems to me to be such as to
render it necessary, in order to secure the peace and safety
of the Transvaal territory as well as the peace and safety of
Her Majesty’s Colonies and of Her Majesty’s subjects else-
where, that the said Transvaal territory should provisionally,
and pending the announcement of Her Majesty’s pleasure,
be administered in Her Majesty’s name and on her behalf :
Now, therefore, I do in virtue of the power and authority
452 SOUTH AFRICAN REPUBLIC [1877
conferred upon me by Her Majesty’s Royal Commission,
dated at Balmoral, the fifth day of October 1876, and pub-
lished herewith, and in accordance with instructions conveyed
to me thereby and otherwise, proclaim and make known that
from and after the publication hereof the territory heretofore
known as the South African Republic, as now measured and
bounded, subject, however, to such local modifications as
may hereafter appear necessary, and as may be approved of
by Her Majesty, shall be and shall be taken to be British
territory ; and I hereby call upon and require the inhabitants
of the Transvaal, of every class and degree, and all Her
Majesty’s subjects in South Africa, to take notice of this my
Proclamation and to guide themselves accordingly :
And I hereby further proclaim and declare that I shall
hold responsible all such persons who in the Transvaal shall
venture opposition, armed or otherwise, to Her Majesty’s
authority hereby proclaimed, or who shall by seditious and
inflammatory language or exhortations or otherwise incite or
encourage others to offer such opposition, or who shall injure,
harass, disturb, or molest others because they may not think
with them on political matters ; and I do warn all such that
upon conviction of any of the above offences they will be
liable to the severe penalties which the law in such cases
ordains ; and I hereby appeal to and call upon the orderly,
right-thinking, and peace-loving people of the Transvaal to be
aiding and supporting Her Majesty’s authority :
And I proclaim further that all legal courts of justice now
in existence for the trial of criminal or civil cases or questions
are hereby continued and kept in full force and effect, and
that all decrees, judgments and sentences, rules and orders
lawfully made or issued, or to be made and issued by such
courts shall be as good and valid as if this Proclamation had
not been published ; all civil obligations, all suits and actions,
civil, penal, criminal, or mixed, and all criminal acts here
committed which may have been incurred, commenced, done,
or committed before the publication of this Proclamation,
but which are not fully tried and determined, may be tried
and determined by any such lawful courts or by such others
as it may be found hereafter necessary to establish for that
purpose :
And I further proclaim and make known that the Transvaal
will remain a separate Government, with its own laws and
legislature, and that it is the wish of Her Most Gracious
Majesty that it shall enjoy the fullest legislative privileges
compatible with the circumstances of the country and the
intelligence of its people. That arrangements will be made
by which the Dutch language will practically be as much the
1877] THE ANNEXATION 453
official language as the English ; all laws, proclamations, and
Government notices will be published in the Dutch language ;
in the Legislative Assembly members may, as they do now,
use either language ; and in the courts of law the same may
be done at the option of suitors to a cause. The laws now
in force in the state will be retained until altered by competent
legislative authority.
Equal justice is guaranteed to the persons and property
of both white and coloured ; but the adoption of this principle
does not and should not involve the granting of equal civil
rights, such as the exercise of the right of voting by savages,
or their becoming members of a Legislative Body, or their
being entitled to other civil privileges which are incompatible
with their uncivilised condition.
The native tribes living within the jurisdiction and under
the protection of the Government must be taught due obedience
to the paramount authority, and be made to contribute their
fair share towards the support of the state that protects
them.
All private bona fide rights to property, guaranteed by the
existing laws of the country and sanctioned by them, will be
respected.
All officers now serving the Government, and who may
be able and willing to serve under the altered circumstances
of the country, shall be entitled to retain their positions, and
such rights as their positions now give them.
All bona fide concessions and contracts with Governments,
companies, or individuals, by which the state is now bound,
will be honourably maintained and respected, and the pay-
ment of the debts of the state must be provided for.
The appointments of licenses, in virtue of which attorneys,
land surveyors, and others are entitled to practise their callings,
shall be respected in accordance with the terms and conditions
of such appointments or licenses.
GOD SAVE THE QUEEN.
Given under my hand and seal at Pretoria, in the South
African Republic, this twelfth day of April in the year
of our Lord one thousand eight hundred and seventy-
seven.
T. SHEPSTONE, Her Majesty’s Special
Commissioner.
By command of His Excellency,
M. OSBORN, Secretary.
S. W. Silver & Co.’s Transvaal (London, 1878).
454 SOUTH AFRICAN REPUBLIC [1877
No. 199. PROCLAMATIE. [12 April 1877.]
NADEMAAL Harer Britsche Majesteits Speciale Commissaris, Sir
Theophilus Shepstone, in weerwil van mijn plegtig protest op gisteren
gelegd tegen Zijner Excellenties voornemen, mij per missieve dd.
9 April, medegedeeld, goed heeft gedacht dat voornemen uit te voeren
en heden het gezag van Harer Britsche Majesteits Regering heeft
geproclameerd over de Zuid-Afrikaansche Republiek.
En nademaal de Regering besloten heeft voorlopig onder protest
te berusten, ten einde intusschen een gezantschap naar Europa en
Amerika te zenden, in de personen van de WelEd. heeren S. J. P.
Kruger en E. J. P. Jorissen, ten einde daar de regten des volks te
verdedigen en te trachten langs vreedzamen weg de zaak op te lossen.
Zoo is het dat ik, Thomas Franois Burgers, Staatspresident der
Z.A. Republiek, bij dezen uit naam en op advies van den Uitv. Raad
alle ambtenaren, burgers en ingezetenen gelast om zich te onthouden
van eenig woord of eenige daad van geweld waardoor de zending
vruchteloos zou kunnen gemaakt worden. En ik vermaan alle burgers
en ingezetenen het besluit der Regering te helpen handhaven en bij
te staan tot de bewaring van orde en het voorkomen van bloedver-
gieten.
THOS. BURGERS, Staatspresident.
Locale Wetten der Z.A . Rep. I. 699.
No. 199. PROCLAMATION. [12 April 1877.]
WHEREAS Her Britannic Majesty’s Special Commissioner,
Sir Theophilus Shepstone, in spite of my solemn protest made
yesterday against His Excellency’s intention communicated
to me by letter dated gth April, has thought fit to carry out
that intention and has this day proclaimed the authority of
Her Britannic Majesty’s Government over the South African
Republic ;
And whereas the Government has decided to submit for
the present under protest, in order to send a mission to Europe
and America consisting of Messrs. S. J. P. Kruger and E. J. P.
Jorissen to defend there the rights of the people and try to
settle the matter in a peaceful manner ;
Now therefore, I, Thomas Francois Burgers, State President
of the S.A. Republic, in the name and by the advice of the
Executive Council, command all officials, burghers and inhabi-
tants to refrain from any word or deed of violence whereby
the mission could be rendered futile. And I admonish all
burghers and inhabitants to aid in carrying out the resolution
of the. Government and to assist in preserving order and pre-
venting bloodshed.
i88i] PRETORIA CONVENTION 455
No. 200. THE CONVENTION OF PRETORIA.
[3 Aug. 1881.]
Convention l for the Settlement of the Transvaal Territory.
Her Majesty’s Commissioners for the settlement of the
Transvaal territory, duly appointed as such by a Commission
passed under the Royal Sign Manual and Signet, bearing date
the 5th of April 1881, do hereby undertake and guarantee, on
behalf of Her Majesty, that from and after the 8th day of
August 1881, complete self-government, subject to the suzer-
ainty of Her Majesty, her heirs and successors, will be accorded
to the inhabitants of the Transvaal territory, upon the following
terms and conditions, and subject to the following reservations
and limitations :
ARTICLE I. The said territory, to be hereinafter called the
Transvaal State, will embrace the land lying between the
following boundaries, to wit : [Boundaries given here.]
II. Her Majesty reserves to herself, her heirs and suc-
cessors, (a) the right from time to time to appoint a British
Resident in and for the said State, with such duties and
functions as are hereinafter defined ; (b) the right to move
troops through the said State in time of war, or in case of the
apprehension of immediate war between the Suzerain Power
and any foreign State, or Native tribe in South Africa ; and
(c) the control of the external relations of the said State, in-
cluding the conclusion of treaties, and the conduct of diplo-
matic intercourse with foreign powers, such intercourse to be
carried on through Her Majesty’s diplomatic and consular
officers abroad.
III. Until altered by the Volksraad or other competent
authority, all laws, whether passed before or after the an-
nexation of the Transvaal territory to Her Majesty’s dominions,
shall, except in so far as they are inconsistent with, or re-
pugnant to, the provisions of this Convention, be and remain
in force in the said State, in so far as they shall be applicable
thereto : Provided that no future enactment specially affect-
ing the interests of natives shall have any force or effect in the
said State without the consent of Her Majesty, her heirs and
successors, first had and obtained and signified to the Govern-
ment of the said State through the British Resident : Provided
further, that in no case will the repeal or amendment of any
laws which have been enacted since the annexation have
a retrospective effect so as to invalidate any acts done or
liabilities incurred by virtue of such laws.
IV. On the 8th day of August 1881, the Government of the
said State, together with all rights and obligations thereto
1 Superseded by the London Convention, 27 Feb. 1884.
456 SOUTH AFRICAN REPUBLIC [1881
appertaining, and all State property taken over at the time
of annexation, save and except munitions of war, will be handed
over to Messrs.
Stephanus Johannes Paulus Kruger,
Martinus Wessel Pretorius, and
Petrus Jacobus Joubert,
or the survivor or survivors of them, who will forthwith cause
a Volksraad to be elected and convened ; and the Volksraad
thus elected and convened will decide as to the further ad-
ministration of the Government of the said State.
V. All sentences passed upon persons who may be con-
victed of offences contrary to the rules of civilised warfare,
committed during the recent hostilities, will be duly carried out,
and no alteration or mitigation of such sentences will be made
or allowed by the Government of the Transvaal State without
Her Majesty’s consent, conveyed through the British Resident.
In case there shall be any prisoners in any of the gaols of the
Transvaal State, whose respective sentences of imprisonment
have been remitted in part by Her Majesty’s Administrator,
or other officer administering the Government, such remission
will be recognised and acted upon by the future Government
of the said State.
VI. Her Majesty’s Government will make due compensa-
tion for all losses or damage sustained by reason of such acts as
are in the 8th Article hereinafter specified, which may have been
committed by Her Majesty’s forces during the recent hostilities,
except for such losses or damage as may already have been
compensated for, and the Government of the Transvaal State
will make due compensation for all losses or damage sustained
by reason of such acts as are in the 8th Article hereinafter
specified, which may have been committed by the people who
were in arms against Her Majesty during the recent hostilities,
except for such losses or damage as may already have been
compensated for.
VII. The decision of all claims for compensation, as in the
last preceding article mentioned, will be referred to a Sub-
Commission, consisting of the Honourable George Hudson,
the Honourable Jacobus Petrus de Wet, and the Honourable
John Gilbert Kotze.
In case one or more of such Sub-Commissioners shall be
unable or unwilling to act, the remaining Sub-Commissioner or
Sub-Commissioners will, after consultation with the Govern-
ment of the Transvaal State, submit for the approval of Her
Majesty’s High Commissioner, the names of one or more
persons to be appointed by him, to fill the place or places thus
vacated.
i88i] PRETORIA CONVENTION 457
The decision of the said Sub-Commissioners, or of a majority
of them, will be final.
The said Sub-Commissioners will enter upon and perform
their duties with all convenient speed. They will, before
taking evidence, or ordering evidence to be taken, in respect of
any claim, decide whether such claim can be entertained at all
under the rules laid down in the next succeeding article.
In regard to claims which can be so entertained, the Sub-
Commissioners will, in the first instance, afford every facility
for an amicable arrangement as to the amount payable in
respect of any claim, and only in cases in which there is no
reasonable ground for believing that an immediate amicable
arrangement can be arrived at, will they take evidence, or
order evidence to be taken.
For the purpose of taking evidence and reporting thereon,
the Sub-Commissioners may appoint deputies, who will with-
out delay submit records of the evidence and their reports to
the Sub-Commissioners.
The Sub-Commissioners will arrange their sittings, and the
sittings of their deputies, in such a manner as to afford the
greatest convenience to the parties concerned and their wit-
nesses. In no case will costs be allowed to either side, other
than the actual and reasonable expenses of witnesses whose
evidence is certified by the Sub-Commissioners to have been
necessary. Interest will not run on the amount of any claim
except as is hereinafter provided for.
The said Sub-Commissioners will forthwith, after deciding
upon any claim, announce their decision to the Government
against which the award is made, and to the claimant.
The amount of remuneration payable to the Sub-Com-
missioners and their deputies will be determined by the High
Commissioner after all the claims have been decided upon.
The British Government and the Government of the Transvaal
State will pay proportionate shares of the said remuneration,
and of the expenses of the Sub-Commissioners and their
deputies, according to the amounts awarded against them
respectively.
VIII. For the purpose of distinguishing claims to be
accepted from those to be rejected the Sub-Commissioners will
be guided by the following rules, viz. : Compensation will be
allowed for losses or damage sustained by reason of the fol-
lowing acts committed during the recent hostilities, viz. :
(a) commandeering, seizure, confiscation, or destruction of
property, or damage done to property ; (b) violence done or
threats used by persons in arms.
In regard to acts under (a), compensation will be allowed
for direct losses only.
458 SOUTH AFRICAN REPUBLIC [1881
In regard to acts falling under (b), compensation will be
allowed for actual losses of property, or actual injury to the
same, proved to have been caused by its enforced abandon-
ment.
No claims for indirect losses, except such as are in this
article specially provided for, will be entertained.
No claims which have been handed in to the Secretary of
the Royal Commission after the ist day of July 1881, will be
entertained, unless the Sub-Commissioners shall be satisfied
that the delay was reasonable.
When claims for loss of property are considered, the Sub-
Commissioners will require distinct proof of the existence of
the property, and that it neither has reverted, nor will revert
to the claimant.
IX. The Government of the Transvaal State will pay and
satisfy the amount of every claim awarded against it within one
month after the Sub-Commissioners shall have notified their
decision to the said Government, and in default of such pay-
ment the said Government will pay interest at the rate of six
per cent, per annum from the date of such default ; but Her
Majesty’s Government may, at any time before such payment,
pay the amount, with interest, if any, to the claimant in satis-
faction of his claim, and may add the sum thus paid to any
debt which may be due by the Transvaal State to Her Majesty’s
Government, as hereinafter provided for.
X. The Transvaal State will be liable for the balance of the
debts for which the South African Republic was liable at the
date of annexation, to wit : the sum of 48,000^. in respect of
the Cape Commercial Bank Loan, and 85,6671. in respect of the
Railway Loan, together with the amount due on the 8th August
1881, on account of the Orphan Chamber debt, which now
stands at 2^,2261. 155., which debts will be a first charge upon
the revenue of the State. The Transvaal State will moreover
be liable for the lawful expenditure lawfully incurred for the
necessary expenses of the Province since annexation, to wit,
the sum of 265,0007., which debt, together with such debts as
may be incurred by virtue of the gth Article, will be a second
charge upon the revenues of the State.
XL The debts due as aforesaid by the Transvaal State to
Her Majesty’s Government will bear interest at the rate of
three and a half per cent., and any portion of such debt as may
remain unpaid on the 8th August 1882, shall be repayable by a
payment for interest and Sinking Fund of six pounds and
ninepence per lool. per annum, which will extinguish the debt
in twenty-five years. The said payment of six pounds and
ninepence per ioo/., shall be payable half-yearly, in British
currency, on the 8th February and 8th August in each year :
i88i] PRETORIA CONVENTION 459
Provided always that the Transvaal State shall pay, in re-
duction of the said debt, the sum of ioo,ooo/. before the
8th August 1882, and shall be at liberty at the close of any
half-year to pay off the whole or any portion of the outstanding
debt.
XII. All persons holding property in the said State on the
8th day of August 1881 will continue to enjoy the rights of
property which they have enjoyed since the Annexation. No
person who has remained loyal to Her Majesty during the
recent hostilities shall suffer any molestation by reason of his
loyalty ; or be liable to any criminal prosecution or civil action
for any part taken in connexion with such hostilities ; and all
such persons will have full liberty to reside in the country, with
enjoyment of all civil rights, and protection for their persons
and property.
XIII. Natives will be allowed to acquire land, but the
grant or transfer of such land will in every case be made to, and
registered in the name of, the Native Location Commission,
hereinafter mentioned, in trust for such natives.
XIV. Natives will be allowed to move as freely within the
country as may be consistent with the requirements of public
order, and to leave it for the purpose of seeking employment
elsewhere, or for other lawful purposes, subject always to the
Pass Laws of the said State, as amended by the Legislature of
the Province, or as may hereafter be enacted under the pro-
visions of the 3rd Article of this Convention.
XV. The Provisions of the 4th Article of the Sand River
Convention are hereby re-affirmed, and no slavery or ap-
prenticeship partaking of slavery will be tolerated by the
Government of the said State.
XVI. There will continue to be complete freedom of re-
ligion and protection from molestation for all denominations,
provided the same be not inconsistent with morality and good
order ; and no disability shall attach to any person in regard
to rights of property by reason of the religious opinions which
he holds.
XVII. The British Resident will receive from the Govern-
ment of the Transvaal State such assistance and support as
can by law be given to him for the due discharge of his functions.
He will also receive every assistance for the proper care and
preservation of the graves of such of Her Majesty’s Forces as
have died in the Transvaal ; and if need be, for the expropria-
tion of land for the purpose.
XVIII. The following will be the duties and functions of
the British Resident :
(i) He will perform duties and functions analogous to
460 SOUTH AFRICAN REPUBLIC [1881
those discharged by a Charge d’ Affaires and
Consul-General.
(2) In regard to Natives within the Transvaal State
he will, (a) report to the High Commissioner, as
representative of the Suzerain, as to the working
and observance of the provisions of this Con-
vention ; (b) report to the Transvaal authorities
any cases of ill-treatment of Natives, or attempts
to incite Natives to rebellion, that may come to
his knowledge ; (c) use his influence with the
Natives in favour of law and order ; and (d)
generally perform such other duties as are by
this Convention entrusted to him, and take such
steps for the protection of the persons and
property of Natives as are consistent with the
laws of the land.
(3) In regard to Natives not residing in the Transvaal,
(a) he will report to the High Commissioner and
the Transvaal Government any encroachments
reported to him as having been made by Trans-
vaal residents upon the land of such Natives,
and in case of disagreement between the Trans-
vaal Government and the British Resident, as
to whether an encroachment had been made, the
decision of the Suzerain will be final, (b) The
British Resident will be the medium of com-
munication with Native Chiefs outside the
Transvaal, and, subject to the approval of the
High Commissioner, as representing the Suzerain,
he will control the conclusion of treaties with
them, and (c) he will arbitrate upon every
dispute between Transvaal residents and Natives
outside the Transvaal (as to acts committed
beyond the boundaries of the Transvaal) which
may be referred to him by the parties interested.
(4) In regard to communications with Foreign Powers,
the Transvaal Government will correspond with
Her Majesty’s Government through the British
Resident and the High Commissioner.
XIX. [About boundaries.]
XX. All grants or titles issued at any time by the Transvaal
Government in respect of land outside the boundary of the
Transvaal State, as defined in Article I., shall be considered
invalid and of no effect, except in so far as any such grant or
title relates to land that falls within the boundary of the
Transvaal State ; and all persons holding any such grant so
considered invalid and of no effect will receive from the
i88i] PRETORIA CONVENTION 461
Government of the Transvaal State such compensation, either
in land or in money, as the Volksraad shall determine. In
all cases in which any Native Chiefs or other authorities outside
the said boundaries have received any adequate consideration
from the Government of the former South African Republic
for land excluded from the Transvaal by the first article of
this Convention, or where permanent improvements have
been made on the land, the British Resident will, subject to
the approval of the High Commissioner, use his influence to
recover from the native authorities fair compensation for the
loss of the land thus excluded, or of the permanent improve-
ments thereon.
XXI. Forthwith, after the taking effect of this Convention,
a Native Location Commission will be constituted, consisting
of the President (or in his absence the Vice-President) of the
State, or some one deputed by him, the Resident, or some one
deputed by him, and a third person to be agreed upon by the
President (or the Vice-President, as the case may be) and the
Resident ; and such Commission will be a standing body for
the performance of the duties hereinafter mentioned.
XXII. The Native Location Commission will reserve to
the native tribes of the State such locations as they may be
fairly and equitably entitled to, due regard being had to the
actual occupation of such tribes. The Native Location Com-
mission will clearly define the boundaries of such locations,
and for that purpose will, in every instance, first of all ascertain
the wishes of the parties interested in such land. In case
land already granted in individual titles shall be required for
the purpose of any location, the owners will receive such
compensation, either in other land or in money, as the Volks-
raad shall determine. After the boundaries of any location
have been fixed no fresh grant of land within such location
will be made, nor will the boundaries be altered without the
consent of the Location Commission. No fresh grants of land
will be made in the districts of Waterberg, Zoutpansberg, and
Lijdenberg, until the locations in the said districts respectively
shall have been defined by the said Commission.
XXIII. If not released before the taking effect of this
Convention, Sikukuni, and those of his followers who have
been imprisoned with him, will be forthwith released, and the
boundaries of his location will be defined by the Native Loca-
tion Commission in the manner indicated in the last preceding
Article.
XXIV. The independence of the Swazis, within the
boundary line of Swaziland, as indicated in the first Article
of this Convention, will be fully recognised.
XXV. No other or higher duties will be imposed on the
462 SOUTH AFRICAN REPUBLIC [1881
importation into the Transvaal State of any article, the
produce or manufacture of the dominions and possessions of
Her Majesty, from whatever place arriving, than are or may
be payable on the like article, the produce or manufacture of
any other country, nor will any prohibition be maintained or
imposed on the importation of any article, the produce or
manufacture of the dominions and possessions of Her Majesty,
which shall not equally extend to the importation of the like
articles, being the produce or manufacture of any other country.
XXVI. All persons other than Natives conforming them-
selves to the laws of the Transvaal State (a) will have full
liberty, with their families, to enter, travel, or reside in any
part of the Transvaal State ; (&) they will be entitled to hire
or possess houses, manufactories, warehouses, shops, and
premises ; (c) they may carry on their commerce either in
person or by any agents whom they may think fit to employ ;
(d) they will not be subject, in respect of their persons or
property, or in respect of then: commerce or industry, to any
taxes, whether general or local, other than those which are
or may be imposed upon Transvaal citizens.
XXVII. All inhabitants of the Transvaal shall have free
access to the Courts of Justice for the prosecution and defence
of their rights.
XXVIII. All persons, other than natives, who established
their domicile in the Transvaal between the I2th day of April
1877 and the date when this Convention comes into effect,
and who shall, within twelve months after such last-mentioned
date, have their names registered by the British Resident, shall
be exempt from all compulsory military service whatever.
The Resident shall notify such registration to the Government
of the Transvaal State.
XXIX. Provision shall hereafter be made by a separate
instrument for the mutual extradition of criminals, and also
for the surrender of deserters from Her Majesty’s Forces.
XXX. All debts contracted since the Annexation will be
payable in the same currency in which they may have been
contracted.
All uncancelled postage and other revenue stamps issued
by the Government since the Annexation will remain valid,
and will be accepted at their present value by the future Govern-
ment of the State. All licenses duly issued since the Annexa-
tion will remain in force during the period for which they may
have been issued.
XXXI. No grants of land which may have been made,
and no transfers or mortgages which may have been passed
since the date of Annexation, will be invalidated by reason
merely of their having been made or passed after such date.
i88i] PRETORIA CONVENTION 463
All transfers to the British Secretary for Native Affairs in
trust for Natives will remain in force, the Native Location
Commission taking the place of such Secretary for Native Affairs.
XXXII. This Convention will be ratified by a newly
elected Volksraad within the period of three months after its
execution, and in default of such ratification this Convention
shall be null and void.
XXXIII. Forthwith after the ratification of this Con-
vention, as in the last preceding article mentioned, all British
troops in Transvaal Territory will leave the same, and the
mutual delivery of munitions of war will be carried out.
Signed at Pretoria this 3rd day of August 1881.
(Signed) HERCULES ROBINSON,
President and High Commissioner.
EVELYN WOOD, Major-General, g
Officer Administering the Government.
J. H. DE VlLLIERS.
We, the undersigned . . . representatives of the Transvaal
Burghers, do hereby agree to all the above conditions, reserva-
tions, and limitations, under which self-government has been
restored to the inhabitants of the Transvaal Territory, subject
to the suzerainty of Her Majesty, Her Heirs and Successors,
and we agree to accept the Government of the said Territory,
with all rights and obligations thereto appertaining, on the
8th day of August 1881, and we promise and undertake that
this Convention shall be ratified by a newly-elected Volksraad
of the Transvaal State within three months from this date.
Signed at Pretoria, this 3rd day of August 1881.
(Signed) S. J. P. KRUGER.
M. W. PRETORIUS.
P. J. JOUBERT.
Part. Papers, Ret. to an address of the House
of Lords, dated 15 June 1883 (42), p. in.
No. 201. PROCLAMATIE. [8 Aug. 1881.]
Aan De Burgers !
Op heden den Ssten Augustus 1881 is het land weder onder onze
Regeering teruggekeerd.
Dit is gebeurd na het teekenen eener Conventie op den 3 den
Augustus 1 88 1 tusschen de Vertegenwoordigers der Koninklijke Com-
Noo 201. PROCLAMATION. [8 Aug. 1881.]
To the Burghers !
On this 8th day of August 1881 the country has once more
come back under our Government.
This has taken place on the signing of a Convention on the
3rd August 1881 between the representatives of the Royal
464 SOUTH AFRICAN REPUBLIC [1881
missie en de leden van het Driemanschap, welke Conventie aan den
Volksraad ter bekrachtiging voorgelegd en publiek zal gemaakt
worden.
Met de grootste dankbaarheid aan onzen God deelen wij dit aan
alle ingezetenen mede.
Nu is het voor alien den tijd om de kracht van ons land te toonen,
en door Eendracht Macht te maken.
Wij danken alle Burgers voor hunnen ijver en gehoorzaamheid en
vertrouwen nu ook, dat zij zonder verzuim onze handen sterk zullen
maken.
Wij verwachten dat alle ingetenen hunne belastingen dadelijk
zullen betalen, om ons land te kunnen besturen.
Aan alle ingezetenen zonder eenig onderscheid belooven wij de
bescherming der Wet, en al de voorrechten daaraan verbonden.
Ingezetenen die geen Burgers zijn en het ook niet willen worden
deelen wij mede, dat zij het recht hebben om zich bij den Resident
aan te geven als Britsche onderdanen, volgens art. 28 der nu vastge-
stelde Conventie. Maar ieder wete, dat voor alle ingezetenen, Burger
of niet, alle de gewone rechten van eigendom, handel en verkeer
dezelfde zijn.
Wij herhalen plechtig, onze leuze is EENDRACHT en VERZOENING
onze Vrijheid is Orde en Wet.
,y. – . S. J. P. KRUGER, Vice-President.
M. W. PRETORIUS,
P. J. JOUBERT,
Leden van het Driemanschap,
W. EDUARD BOK, Staatssecretaris.
Locale Wetten der Z.A. Rep. I. 1010.
Commission and the members of the Triumvirate, which Con-
vention will be submitted to the Volksraad for endorsement
and will be published.
With the deepest gratitude to our God we announce this to
all the inhabitants.
Now is the time for all to show the strength of our country
and to attain to Strength through Unity.
We thank all Burghers for their zeal and their obedience,
and now we trust, too, that they will strengthen our hands
without delay.
We expect that all the inhabitants shall pay their taxes
immediately in order to be able to govern our country.
To all the inhabitants without exception we promise the
protection of the Law and all the privileges connected there-
with.
We inform the inhabitants who are not Burghers and do
not wish to become such, that they are at liberty to give in
their names to the Resident as British subjects, according to
Art. 28 of the Convention now concluded. But let all men know
that for all inhabitants, whether they be Burghers or not, all
the ordinary rights of property, trade, and traffic are the same.
We solemnly repeat : our motto is UNITY and RECONCILIA-
TION, our Freedom is Order and Law.
1883] DISTRICT COUNCILS 465
No. 202. OP DE DISTRICTSRADEN. [14 Junij 1883.]
WET No. 6, iSSj. 1
(Goedgekeurd en vastgesteld bij besluit van den HEd. Achtb. Volksraad
dd. 12 Junij 1883, art. 278.)
Tot uitvoering van artt. 11-13 van Wet No. 3, 1881 (Bijlage van
de Grondwet).
En met herroeping der Wet No. 19, i88o, 2 wordt vastgesteld :
ART. i . In ieder district bestaat een Districtsraad uit zooveel leden
als er Veldcornetschappen zijn in net district.
2. De Landdrost is Voorzitter en lid van den Districtsraad. Als
eerste Secretaris zal de Districtsraad een der klerken van het Land-
drostkantoor kunnen benoemen, tegen een bepaald salaris.
3. Om te kiezen of gehozen te worden moet men aan de vereischten
der algemeene kieswet 3 voldoen, niet in staat van faillissement ver-
keeren, en vast goed bezitten in het district op eigen naam, of huurder
van vast goed zijn van een som van minstens ^50 per jaar en in het
district woonachtig zijn.
4. Niemand die aannemer is onder eenig contract met den Districts-
raad, zal bevoegd zijn om gekozen te worden tot lid daarvan.
De Veldcornetten kunnen geen leden van den Districtsraad zijn.
No. 202. FOR THE DISTRICT COUNCILS. [14 June 1883.]
LAW No. 6, 1883.!
(Sanctioned and confirmed by resolution oj the Volksraad,
dated 12 June 1883, art. 278.)
To provide for carrying out arts. 11-13 f Law No. 3,
1881 (Addendum to the Grondwet).
And with the repeal of Law No. 19, i88o, 2 it is enacted :
ART. i. In each district there shall be a District Council
of so many members as there are Field-cornetcies in the
district.
2. The Landdrost shall be Chairman and member of the
District Council. As first Secretary the District Council shall
be at liberty to appoint one of the clerks of the Landdrost’s
Office at a fixed salary.
3. To be an elector or to be elected one must conform to
the demands of the general election law, 3 must not be in a
state of bankruptcy, and must possess in his own name im-
movable property in the district, or be a renter of immovable
property to the sum of at least 50 per year and must reside
in the district.
4. No person who is a party to any contract with the District
Council shall be eligible as a member of the same.
The Field-cornets can not be members of the District
Council.
1 Repealed by Procl. No. 34 of 1901.
2 Entitled ” For the Establishment of District Councils in this Province.”
3 Law No. 7, 1882, the provisions of which modified those of Law No. i,
1876, which see.
30
SOUTH AFRICAN REPUBLIC [1883
5. De leden hebben zitting voor drie jaren.
6. De eerste Districtsraad onder deze Wet gekozen, zal in werking
blijven tot den laatsten dag van December 1886, en zal dan aftreden
en eene nieuwe electie van leden plaats hebben zoo als later zal worden
bepaald.
7. De verkiezing heeft in ieder Veldcornetschap plaats, op tijd en
wijze als bij afzonderlijke proclamatie, nader door den Staatspresident
zal worden bepaald.
8. De lijsten der burgers door de Veldcornetten gehouden, liggen
ten grondslag voor de verkiezing.
9. Klagten tegen de verkiezing of gehouden stemming worden
binnen 14 dagen na de publicatie van den uitslag der verkiezing schrif-
telijk ingezonden bij den Landdrost van het district.
10. De Landdrost met de Veldcornetten van het district vormen
het Hof, dat binnen 14 dagen na den termijn in art. 9 genoemd, deze
klagten, in tegenwoordigheid der partijen en in open Hof, onder-
zoekt en beslist.
1 1. Van den uitspraak is appel bij den Uitvoerenden Raad. Wan-
neer het bij uitspraak van den Uitv. Raad blijkt dat de klagten on-
gegrond zijn geweest, moet de appellant de onkosten door zijn
tegenpartij gemaakt, betalen.
12. De taak van den Districtsraad is het onderhouden en het toezigt
op het onderhoud van alle publieke wegen in het district : de verbetering
daarvan, de bevordering der openbare communicatie door den aanleg
van bruggen.
5. The members have session for three years.
6. The first District Council elected under this Law shall
remain in operation till the last day of December 1886, and
shall then leave office, and a fresh election of members shall
take place, as shall be laid down at a later date.
7. The election shall take place in each Field-cornetcy at
such time and place as shall be more definitely fixed by the
State President in a separate proclamation.
8. The lists of burghers kept by the Field-cornets shall
form the basis for the election.
9. Complaints against the election or the voting performed
shall be sent in, in writing, to the Landdrost of the district
within 14 days after the publication of the result of the election.
10. The Landdrost with the Field-cornets of the district
shall constitute a Court which shall, within 14 days after the
period mentioned in art. 9, examine and decide on these com-
plaints in the presence of the parties and in open Court.
11. From the judgment there shall be an appeal to the
Executive Council. When it shall appear from the decision
of the Executive Council that the complaints are groundless,
the appellant shall pay the expenses incurred by his opponent.
12. The task of the District Council is to maintain in good
order, and cause to be maintained, all public roads in the
district : the improvement thereof and the advancement of
public communication by laying down bridges.
1883] DISTRICT COUNCILS 467
13. Tot dekking der onkosten daarvan stelt het Rijk l aan het
District beschikbaar het weggeld dat volgens de wet door de ingezetenen
van het district wordt betaald.
14. Indien deze gelden niet voldoende zijn, kan de Districtsraad
een bijzondere belasting heffen, na vooraf daarop de goedkeuring van
den Volksraad verkregen te hebben. 2
15. Jaarlijks wordt de begrooting van ontvangst en uitgaaf v66r de
vaststelling door den Districtsraad aan de Regering toegezonden, ten
einde deze in staat te stellen om te beoordeelen of zij iets bevat in
strijd met de algemeene of met deze wet. In dit geval onthoudt de
Regering hare goedkeuring.
1 6. Alleen een goedgekeurde en gepubliceerde begrooting geeft
regt om uitgaven te doen en inkomsten te heffen.
17. Het in art. 13 genoemde weggeld blijft betaalbaar bij den Land-
drost, en wordt door dezen bij den Thesaurier gestort.
De Regering doet, op aanvraag van den Districtsraad, zulke uitbeta-
lingen daaruit aan den Districtsraad als noodig zijn voor de finantieele
administratie van het district.
18. De rekening van inkomsten en uitgaven wordt ook jaarlijks,
v66r de vaststelling aan de Regering toegezonden, met hetzelfde doel
13. For defraying the expenses thereof the Empire x shall
place at the disposal of the District the road-money which is
paid by the inhabitants of the district according to law.
14. If these funds shall not be sufficient, the District
Council shall be at liberty to raise a special tax after having
first obtained the approval of the Volksraad thereon. 2
15. The estimates of receipts and expenditure shall be sent
annually by the District Council to the Government before
they shall be passed, in order that the Government may be
able to judge whether they contain anything in conflict with
the general law or with this law. In that case the Government
shall withhold its sanction.
16. Only the estimates that are approved of and published
shall give the right to spend money and collect the revenue.
17. The road-money mentioned in art. 13 shall continue
to be payable to the Landdrost and shall be paid in by him
to the Treasurer.
The Government, on the request of the District Council,
shall make therefrom such disbursements to the District
Council as shall be necessary for the financial administration
of the district.
18. The accounts of revenue and expenditure shall likewise
be sent to the Government each year, before the passing
thereof, with the same object and the same competency on
1 Law No. i, 1887, substituted the words de Regering (Government) for het
Rijk (Empire), which last seems quite meaningless in this law.
2 Law No. i, 1887, simply provided that if the funds were insufficient the
Volksraad should decide the matter.
468 SOUTH AFRICAN REPUBLIC [1883
en dezelfde bevoegdheid voor de Regering als in art. 1 5 van de Begroo-
ting is bepaald.
19. Eenmaal per drie maanden houdt de Districtsraad in het
dorp waar de Landdrost zijn zetel heeft, een gewone vergadering.
Buitengewone vergaderingen zoo dikwijls zulks noodig mogt zijn.
20. De leden hebben regt op vergoeding van reis- en verblijfkosten
naar tarief van 1882.
2 1 . Drie l leden maken met den Landdrost een quorum uit.
22. Deze wet moet herzien worden in de zitting van den Volksraad
van 1886, ten eindede nieuwe verkiezing voor iSS/tekunnen regelen. 2
23. Deze Wet treedt in werking i Augustus 1883.
Locale Wetten der Z.A. Rep. I. 1189.
No. 203. GOUVERNEMENTS KENNISGEVING, No. 211.
[i Oct. 1883.]
Naardien het in eenige kantoren de gewoonte blijkt geworden te
zijn dat ambtenaren zich ter bekoming van eenigerlei informatie van
welken aard ook, ter eerste instantie wenden tot het Gouvernements-
kantoor direct, waardoor referenten van dit Bureau naar andere
Departementen herhaaldelijk noodzakelijk worden v66r de verlangde
inlichtingen kunnen worden verschaft, en het Gouvernementskantoor
aldus onnoodig tot een medium wordt gemaakt voor het voeren van
the part of the Government as is provided for in art. 15 with
regard to the Estimates.
19. Once in three months the District Council shall hold
an ordinary meeting in the town where the Landdrost is
stationed. Special meetings shall be held as often as may be
necessary.
20. The members shall have a right to receive payment
of their travelling expenses and expenses of living, according
to the tariff of 1882.
21. Three 1 members in addition to the Landdrost shall
form a quorum.
22. This law shall be revised during the 1886 session of the
Volksraad, in order to be able to arrange for the election of
1887.2
23. This law shall take effect on i August 1883.
No. 203. GOVERNMENT NOTICE, No. 211. [i Oct. 1883.]
As it appears to have become the custom in some offices
for officials to direct their requests for information on all
kinds of subjects to the Government Office in the first instance,
by which custom it repeatedly becomes necessary for this
Office to refer to other Departments before the desired informa-
tion can be obtained, which makes the Government Office
an unnecessary medium for conducting correspondence which
1 Changed to two by Law No. i. 1887.
2 In accordance with this provision Law No. i, 1887, provided for the
holding of subsequent elections.
1883] GOVERNMENT OFFICES 469
correspondentie die op meer doelmatige wijze en ten einde de afdoening
der zaak te bevorderen, kan gevoerd worden met de desbetreffende
departementen direct, zoo wordt bij dezen ter algemeene informatie
bekend gemaakt dat de Landdrosten in de respective Districten en ook
andere beambten, zich hebben te wenden tot het kantoor waar de
gewenschte inlichtingen kunnen worden verschaft zonder tusschen-
komst van dit Bureau, tenzij zulks om bestaande redenen niet wen-
schelijk worden geacht of de verlangde inlichtingen niet anders kunnen
verkregen worden.
Informatie in zake regtspleging, regts- of wetsquesties zal der-
halve moeten ingewonnen worden bij ZEd. Gestr. den Staatsprocureur,
in zake Naturellen bij den WelEd. Heer Superintendent van Naturelle
Zaken ; in krijgszaken bij den Commandant-Generaal ; in zake het
onderwijs bij den Superintendent van Onderwijs ; in zake Rekeningen
of ‘t houden van Boeken en Administratie bij den Auditeur- en
Thesaurier-Generaal ; in zake Gronden, Grondbrieven, Transporten,
Inspecties en dergelijke, bij den Registrateur van Acten of Landmeter-
Generaal ; in zake het Postwezen bij den Postmeester-Generaal, enz. enz.
Particuliere personen worden vriendelijk verzocht zich eveneens
zoveel mogelijk aan dezen regel te houden.
Op last,
W. EDUARD BOK, Staatssecretaris,
Locale Wetten der Z.A. Rep. I. 1232.
can be carried on in a more suitable manner and with a view
to securing greater finality by direct consultation with the
Departments concerned; therefore it is hereby notified for
general information that the Landdrosts in the respective
Districts as also other officials are to direct their enquiries to
the Office where the desired information can be supplied without
the intervention of this Office, unless for existing reasons this
is not deemed advisable or the desired information can not be
obtained in another way.
Information concerning the administration of justice, legal
-matters and points of law must therefore be procured from the
State Attorney ; regarding Natives from the Superintendent
of Native Affairs ; regarding military matters from the Com-
mandant – General ; regarding education from the Super-
intendent of Education ; regarding Accounts or the keeping
of Books and Administration from the Auditor and Treasurer-
General ; regarding Lands, Deeds of Sale of Lands, Transfers,
Inspections and such-like, from the Registrar of Deeds or the
Surveyor – General ; regarding the Postal Service from the
Postmaster-General, etc. etc.
Private individuals are also kindly requested to adhere to
this rule as far as possible.
No. 204. THE LONDON CONVENTION. [27 Feb. 1884.]
WHEREAS the Government of the Transvaal State, through
its delegates, consisting of Stephanus Johannes Paulus Kruger
470 SOUTH AFRICAN REPUBLIC [1884
(President of the said State), and Stephanus Jacobus du Toit
(Superintendent of Education), and Nicholas Jacobus Smit
(a member of the Volksraad), have represented that the Con-
vention signed at Pretoria on the 3rd day of August 1881,
and ratified by the Volksraad of the said State on the 25th
October 1881, contains certain provisions which are incon-
venient, and imposes burdens and obligations from which the
said State is desirous to be relieved, and that the south-western
boundaries fixed by the said Convention should be amended,
with a view to promote the peace and good order of the said
State, and of the countries adjacent thereto; and whereas Her
Majesty the Queen of the United Kingdom of Great Britain
and Ireland has been pleased to take the said representations
into consideration.
Now, therefore, Her Majesty has been pleased to direct,
and it is hereby declared that the following articles of the
new Convention, signed on behalf of Her Majesty by Her
Majesty’s High Commissioner in South Africa, the Right
Honourable Sir Hercules George Robert Robinson, . . .
Governor of the Colony of the Cape of Good Hope, and on
behalf of the Transvaal State (which shall hereinafter be called
the South African Republic) by the above-named delegates,
. . . shall, when ratified by the Volksraad of the South African
Republic, be substituted for the articles embodied in the
Convention of 3rd August 1884, which latter, pending such
ratification, shall continue in full force and effect.
ARTICLE i. [Boundaries of the South African Republic
given here.]
2. The Government of the South African Republic will
strictly adhere to the boundaries defined in the first article
of the Convention, and will do its utmost to prevent any of
its inhabitants from making any encroachments upon lands
beyond the said boundaries. The Government of the South
African Republic will appoint Commissioners upon the eastern
and western borders whose duty it will be strictly to guard
against irregularities and all trespassing over the boundaries.
Her Majesty’s Government will, if necessary, appoint Com-
missioners in the native territories outside the eastern and
western borders of the South African Republic to maintain
order and prevent encroachments.
Her Majesty’s Government and the Government of the
South African Republic will each appoint a person to proceed
together to beacon off the amended south-west boundary as
described in article one of this Convention ; and the President
of the Orange Free State shall be requested to appoint a referee
to whom the said persons shall refer any questions in which
they may disagree respecting the interpretation of the said
1884] LONDON CONVENTION 471
article, and the decision of such referee thereon shall be final.
The arrangement already made under the terms of article
nineteen of the Convention of Pretoria of the 3rd August 1881,
between the owners of the farms Grootfontein and Valleifontein
on the one hand, and the Barolong authorities on the other,
by which a fair share of the water supply of the said farms
shall be allowed to flow undisturbed to the said Barolongs,
shall continue in force.
3. If a British officer is appointed to reside at Pretoria or
elsewhere within the South African Republic to discharge
functions analogous to those of a Consular Officer he wUl
receive the protection and assistance of the Republic.
4. The South African Republic will conclude no treaty or
engagement with any State or nation other than the Orange
Free State, nor with any native tribe to the eastward or west-
ward of the Republic until the same has been approved by Her
Majesty the Queen.
Such approval shall be considered to have been granted if
Her Majesty’s Government shall not, within six months after
receiving a copy of such treaty (which shall be delivered to
them immediately upon its completion), have notified that the
conclusion of such treaty is in conflict with the interest of
Great Britain or of any of Her Majesty’s possessions in South
Africa.
5. The South African Republic will be liable for any balance
which may still remain due of the debts for which it was liable
at the date of annexation, to wit, the Cape Commercial Bank
Loan, the Railway Loan, and the Orphan Chamber Debt,
which debts will be a first charge upon the revenues of the
Republic. The South African Republic will moreover be
liable to Her Majesty’s Government for 250,000, which will
be a second charge upon the revenues of the Republic.
6. The debt due as aforesaid by the South African Republic
to Her Majesty’s Government will bear interest at the rate of
three and a half per cent., from the date of the ratification of
this Convention, and shall be repayable by a payment for
interest and sinking fund of six pounds and ninepence per
100 per annum, which will extinguish the debt in twenty-five
years. The said payment of six pounds and ninepence per
100 shall be payable half-yearly, in British currency, at the
close of each half-year from the date of such ratification ;
provided always that the South African Republic shall be
at liberty at the close of any half-year to pay off the whole or
any portion of the outstanding debt.
Interest at the rate of three and a half per cent, on the
4ebt as standing under the Convention of Pretoria shall as
472 SOUTH AFRICAN REPUBLIC [1884
heretofore be paid to the date of the ratification of this
Convention.
7. All persons who held property in the Transvaal on the
8th day of August 1881, and still hold the same, will continue
to enjoy the rights of property which they have enjoyed since
the I2th April 1877. No person who has remained loyal to
Her Majesty during the late hostilities shall suffer any molesta-
tion by reason of his loyalty ; or be liable to any criminal
prosecution or civil action for any part taken in connection
with such hostilities ; and all such persons will have full
liberty to reside in the country, with enjoyment of all civil
rights and protection for their persons and property.
8. The South African Republic renews the declaration
made in the Sand River Convention, and in the Convention
of Pretoria, that no slavery or apprenticeship partaking of
slavery will be tolerated by the Government of the said
Republic.
9. There will continue to be complete freedom of religion
and protection from molestation for all denominations, pro-
? vided the same be not inconsistent with morality and good
order ; and no disability shall attach to any” person in regard
to rights of property by reason of the religious opinions which
he holds.
10. [British Resident to receive assistance in caring for
graves of British soldiers.]
11. All grants or titles issued at any time by the Transvaal
Government in respect of land outside the boundary of the
South African Republic, as defined in article one, shall be
considered invalid and of no effect, except in so far as any
such grant or title relates to land that falls within the boundary
of the South African Republic ; and all persons holding any
such grant so considered invalid and of no effect will receive
from the Government of the South African Republic such
compensation, either in land or in money, as the Volksraad
shall determine. In all cases in which any native chiefs or
other authorities outside the said boundaries have received
any adequate consideration from the Government of the South
African Republic for land excluded from the Transvaal by the
first article of this Convention, or where permanent improve-
ments have been made on the land, the High Commissioner
will recover from the native authorities fair compensation for
the loss of the land thus excluded, or of the permanent im-
provements thereon.
12. The independence of the Swazies, within the boundary
line of Zwaziland, as indicated in the first article of this Con-
vention, will be fully recognised.
13. Except in pursuance of any treaty or engagement
1884] LONDON CONVENTION 473
made as provided in article four of this Convention, no other
or higher duties shall be imposed on the importation into the
South African Republic of any article coming from any part
of Her Majesty’s dominions than are or may be imposed on
the like article coming from any other place or country ; nor
will any prohibition be maintained or imposed on the importa-
tion into the South African Republic of any article coming
from any part of Her Majesty’s dominions which shall not
equally extend to the like article coming from any other place
or country. And in like manner the same treatment shall be
given to any article coming to Great Britain from the South
African Republic as to the like article coming from any other
place or country.
These provisions do not preclude the consideration of
special arrangements as to import duties and commercial
relations between the South African Republic and any of
Her Majesty’s colonies or possessions.
14. All persons, other than natives, conforming themselves
to the laws of the South African Republic (a) will have full
liberty, with their families, to enter, travel, or reside in any
part of the South African Republic ; (b) they will be entitled
to hire or possess houses, manufactories, warehouses, shops,
and premises ; (c) they may carry on their commerce either
in person or by any agents whom they may think fit to employ ;
(d) they will not be subject, in respect of their persons or
property, or in respect of their commerce or industry, to any
taxes, whether general or local, other than those which are or
may be imposed upon citizens of the said Republic.
15. All persons, other than natives, who established their
domicile in the Transvaal between the I2th day of April 1877
and the 8th August 1881, and who within twelve months after
such last-mentioned date have had their names registered by
the British Resident, shall be exempt from all compulsory
military service whatever.
16. Provision shall hereafter be made by a separate instru-
ment for the mutual extradition of criminals, and also for the
surrender of deserters from Her Majesty’s Forces.
17. All debts contracted between the I2th April 1877 and
the 8th August 1881 will be payable in the same currency in
which they may have been contracted.
18. No grants of land which may have been made, and no
transfers or mortgages which may have been passed, between
the I2th April 1877 and the 8th August 1881 will be in-
validated by reason merely of their having been made or
passed between such dates.
All transfers to the British Secretary for Native Affairs in
trust for natives will remain in force, an officer of the South
474 SOUTH AFRICAN REPUBLIC [1884
African Republic taking the place of such Secretary for Native
Affairs.
19. The Government of the South African Republic will
engage faithfully to fulfil the assurances given, in accordance
with the laws of the South African Republic, to the natives of
the Pretoria Pitso by the Royal Commission in the presence of
the Triumvirate and with their entire assent (i) as to the
freedom of the natives to buy or otherwise acquire land under
certain conditions ; (2) as to the appointment of a commission
to mark out native locations ; (3) as to the access of the natives
to the courts of law ; and (4) as to their being allowed to move
freely within the country or to leave it for any legal purpose
under a pass system.
20. This Convention will be ratified by a Volksraad of the
South African Republic within the period of six months after
its execution, 1 and in default of such ratification this Con-
vention shall be null and void.
Signed in duplicate in London this” 27th day of February
1884.
(Signed) HERCULES ROBINSON.
S. J. P. KRUGER.
S. J. DU TOIT.
N. J. SMIT.
Statute Law of the Transvaal, I. 122.
No. 205. VORM VAN LASTBRIEF TOT PERSOONLIJK ARREST.
In naam en van wege de Regeering en het volk der Z.A. Republiek,
aan den Hoofdbaljuw of zijnen wettigen plaatsvervanger,
Saluut :
Gij wordt gelast A. B., van de . . . Straat, in Pretoria, Koopman,
te nemen, zoo hij in dese Republiek worde gevonden en hem in veilige
bewaring te houden, zoo dat gij hem voor den Hoofdrechter (en
andere de Rechters van het Hoog^Gerechtshof) van gezegde Republiek
te Pretoria hebt op den . . . dag van … aanstaande, ten tien ure
des voormiddags, ten einde dan en daar te antwoorden op eisch van
No. 205. FORM OF WARRANT OF ARREST.
In the name and on behalf of the Government and the
people of the S.A. Republic, to the Chief Sheriff or his lawful
deputy,
Greeting :
You are ordered to fetch A. B., residing in … Street,
Pretoria, Merchant, if he is to be found in this Republic, and to
keep him in safe custody, so that you may bring him before
the Chief Justice (and the other Judges of the High Court)
of the said Republic at Pretoria on the . . . day of … next,
at ten o’clock in the forenoon, in order to answer then and
1 Ratified by resolution of the Volksraad, dated 8th August 1884, art. 53.
1884] WARRANT OF ARREST 475
C. D., van . . . waarom hij niet heeft betaald aan gezegde C. D.,
de som van . . . sterling, wettig geld die hij aan gezegde C. D. schuldig
is, en hem wederrechtelijk onthoudt (of niet heeft afgeleverd aan
gezegden C. D. een zekerpaard, met zadel, toom, enz., of ander roerend
goed, hetwelk de gezegde A. B. wederrechtelijk den gezegden C. D.
onthoudt, of niet aan gezegden C. D. zijn schade voldaan heeft door
den gezegden C. D. geleden, met betrekking tot, enz., vermeldende
eenig delict of injurie door den verweerder aangedaan, waar dit het
geval moge zijn) zooals voorzegd ; en dat gij dan en daar dezen
lastbrief hebt met een relaas van alles dat gij daarop gedaan hebt.
Getuige: de WelEd. Achtbare John Gilbert Kotze, LL.B., Hoofd-
rechter van gezegde Republiek, te Pretoria, den . . . dag van . . .
in het jaar onzes Heeren een duizend acht hondred en …
P. J. K., Griffier van het Hoog Geregtshof.
E.F.,
No. . . . STRAAT, PRETORIA,
Procureur van klager.
Staatscourant Z.A . Rep. 21 Feb. 1884.
No. 206. VOLKSRAADSBESLUIT, 17 SEPTEMBER 1884.
ART. 490. x De Raad vereenigde zich nu eenparig met het
concept als onder, en nam het aan als het besluit van den Raad, het
there the demand of C. D., of . . ., why he has not paid to the
said C. D. the sum of … sterling, lawful money which he is
owing to the said C. D., and which he is illegally withholding
from him (or why he has not delivered to the said C. D. a
certain horse, with saddle, bridle, etc., or other movable pro-
perty, which he, the said A. B., is illegally withholding from the
said C. D. ; or why he has not made good to the said C. D.
the loss sustained by him, the said C. D., in the matter of, etc.,
specifying any damage or loss caused by the defendant, wherever
such may have occurred) as aforesaid ; and then and there
you shall have with you this warrant together with an account
of everything that you have done in obedience to it.
Witness : the Rt. Hon. John Gilbert Kotze, LL.B., Chief
Justice of the said Republic, at Pretoria, the . . . day of
… in the year of our Lord one thousand eight hundred
and . . .
P. J. K., Registrar of the High Court
of Justice.
E.F.,
No STREET, PRETORIA,
Plaintiff’s Attorney.
No. 206. RESOLUTION OF THE VOLKSRAAD,
17 SEPTEMBER 1884.
ART. 490. * The Raad now unanimously agreed to the
draft as below, and adopted it as the resolution of the Raad,
1 Repealed by Procl. No. 34 of 1901.
476 SOUTH AFRICAN REPUBLIC [1884
getal af te vaardigen leden aan de Regering te worden overgelaten.
En door haar eveneens in overleg met de andere Regeringen de plaats
waar de conferentie zal gehouden worden te worden bepaald.
” De Volksraad, van gevoelen dat de H.E. Regering der Zuid
Afrikaansche Republiek met de Regeringen der Staten en de Kolonien
van Zuid Afrika in onderhandeling dient te treden over de noodzake-
lijkheid van het sluiten van een tolverbond, op den grondslag van
wederkeerige vrije invoer van de voortbrengselen der nijverheid dier
Staten en Kolonien, magtigt hierbij de HEd. Regering de Regeringen
van genoemde Staten en Kolonien uit te noodigen tot het houden
eener conferentie van afgevaardigden uit de respective Staten en
Kolonien, ten einde over het sluiten van zoodanig tolverbond te
onderhandelen, tot welke conferentie de H.E. Regering dezer Republiek
leden zal afvaardigen. Inmiddels wordt der Regering opgedragen
in corresppndentie met de Regering der Kaap Kolonie te treden ten
einde de heffing van invoerrechten op voortbrengselen uit beide landen
wederzijds voorloopig te staken, tot tijd en wijle over het sluiten van
een tolverbond zal zijn beslist.”
Locale Wetten der Z.A. Rep. I. 1265.
No. 207. VOLKSRAADSBESLUIT, 3 OCTOBER 1884.
ART. 749. 1 De Raad in overweging nemende dat er redenen
bestaan te gelooven dat er scholen worden ondersteund uit ‘s lands
the number of members to be sent as delegates to be left to the
decision of the Government, who shall likewise, in consultation
with the other Governments, fix on the place where the con-
ference shall be held.
” The Volksraad, being of opinion that the Government of
the South African Republic should enter into communication
with the Governments of the States and Colonies of South
Africa with regard to the necessity of forming a customs
union on the basis of the reciprocal free importation of products
of the industry of those States and Colonies, hereby empowers
the Government to invite the Governments of the said States
and Colonies to hold a conference of delegates from the
respective States and Colonies in order to treat about the
forming of such a customs union, to which conference the
Government of this Republic shall send as delegates
members. Meantime the Government is instructed to enter
into communication with the Government of the Cape Colony
with a view to discontinuing reciprocally, for the present,
the levying of import duties on products of both countries
till such time as the formation of a customs union shall be
decided on.”
No. 807. RESOLUTION OF THE VOLKSRAAD,
3 OCTOBER 1884.
ART. 749- 1 The Raad, considering that there is reason to
believe that there are schools which are supported from the
1 Repealed by Procl. No. 34 of 1901,
1884] CAPE POSTAL CONVENTION 477
kas waar~het medium van onderwijslniet is de Hollandsche taal,
ingevolge de vereischten der wet, 1 draagt de Regering op naar deze
omstandigheden onderzoek in te^stellen door middel van ZEd. den
Superintendent van Onderwijs en de wet stiptelijk toe te passen.
Locale Wetten der Z.A. Rep. I. 1268.
No. 208. VOLKSRAADSBESLUIT, 3 NOVEMBER 1884.
ART. 1 1 66. De Raad gelet hebbende op Uitv. Raadsbesluit
Art. 267, dd. i November 1884, en op de nu voorgestelde Postconventie
met de Regeering van de Kaapkolonie, besluit :
a. De Regering te magtigen tot net sluiten dezer Conventie.
b. De Regering te autoriseeren om net binnenlandsch posttarief
daarmede in overeenstemming te brengen.
c. De Regering te magtigen dergelijke Conventie aan te gaan
met de Regeringen van den O. Vrijstaat en Natal. 2
Locale Wetten der Z.A. Rep. I. 1298.
No. 209. VOLKSRAADSBESLUIT, 22 OCTOBER 1884.8
[Wordt besloten, dat van nu voortaan de Superintendent van
Naturellen zaken zal zijn ex officio omcieel lid van den Uitv. Raad
evenals de Commandant-Generaal.]
Locale Wetten der Z.A. Rep. I. 1274.
public treasury, and in which the medium of instruction is not
the Dutch language as is demanded by law x instructs the
Government to make enquiries into these circumstances
through the Superintendent of Education and to apply the
law strictly.
No. 208. RESOLUTION OF THE VOLKSRAAD,
3 NOVEMBER 1884.
ART. 1166. The Raad, having noted the resolution of the
Executive Council, art. 267, dated ist Nov. 1884, an d having
considered the Postal Convention now proposed to be con-
cluded with the Government of the Cape Colony, resolves :
a. To authorise the Government to conclude the said
Convention.
b. To authorise the Government to bring the inland
postal tariff into line therewith.
c. To empower the Government to conclude similar
conventions with the Governments of the O.F.
State and Natal. 2
No. 209. RESOLUTION OF THE VOLKSRAAD,
22 OCTOBER 1884.3
[Resolved, that in future the Superintendent of Native
Affairs, like the Commandant-General, shall be ex officio a
member of the Executive Council.]
1 Law No. i, 1882, art. 7 ; Locale Wetten der Z.A. Rep. I. 1071.
a Postal Conventions were concluded with the O.F. State and Natal in 1885.
‘ Repealed by Prod. No. 34 of 1901.
478 SOUTH AFRICAN REPUBLIC [1886
No. 210. VOLKSRAADSBESLUIT, 29 JUNIJ 1886.
ART. 73O. 1 De Volksraad, overwogen hebbende memorie ver-
zoekende de aanstelling eener commissie, om met eene gelijksoortige
commissie door den Vrijstaatschen Volksraad benoemd te beraadslagen
over een nauwere verbintenis en latere vereeniging der twee Zuster-
Republieken ; kennis genomen hebbende van het besluit van den
E.A. Volksraad van den Oranje Vrijstaat, een gelijksoortig verzoek
zijner burgers afwijzende, wegens de Britsche Suzereiniteit, waaronder
de Z.A. Republiek zoude staan, zoodat door de verlangde vereeniging
de onafhankelijkheid van den Oranje Vrijstaat in gevaar zoude worden
gebragt, met de gronden waarop voormeld besluit berust niet kunnende
instemmen ; betreurt het ten zeerste, dat door voormeld besluit de
Raad onzerzijds belet wordt aan het verzoek der memorialisten voor
het tegenwoordige te voldoen, terwijl de Raad, zich vereenigende
met het verzoek der memorialisten wat betreft de wenschelijkheid
der zaak, zich bereid verklaart in de toekomst eenigen praktischen
weg tot het gewenschte doel te volgen.
Locale Wetten der Z.A. Rep. II. 79.
No. 211. VOLKSRAADSBESLUIT, 7 JULI 1886.
ART. 877. J De Raad, de talrijk geteekende memories thans
aan de orde, vragende vermindering van Volksraadsleden, overwogen
No. 210. RESOLUTION OF THE VOLKSRAAD,
29 JUNE 1886.
ART. 73O. 1 The Volksraad, having had under consideration
a memorial requesting the appointment of a commission
to consult with a similar commission appointed by the Free
State Volksraad as to a closer connection between and subse-
quent union of the two sister Republics ; having been informed
of the resolution of the Volksraad of the Orange Free State,
which refused a similar request made by their burghers by
reason of the British Suzereignty under which the S. A. Republic
is alleged to stand, so that by the desired union the inde-
pendence of the Orange Free State would be endangered,
the Volksraad, being unable to admit the grounds on which
the said resolution rests, deeply regrets that on account of the
said resolution the Raad on our part is prevented from acceding
to the request of petitioners for the present ; meanwhile the
Raad, associating itself with the request of the petitioners as
regards the desirability of the matter, declares itself prepared
to follow any practicable course for the attainment of the
desired end in the future.
No. 211. RESOLUTION OF THE VOLKSRAAD,
7 JULY 1886.
ART. 877. x The Raad, having had under consideration
the numerously signed memorials now under discussion asking
1 Repealed by Procl. No. 34 of 1901.
1887] STELLALAND 479
hebbende, besluit het getal leden voor de districten Pretoria,
Potchefstroom, Lijdenburg en Rustenburg te bepalen op drie leden
elk, en voor de overige districten twee leden elk ; en besluit verder
dat de Raad zelf de vermindering zal regelen voor dat de Raad op-
breekt ; en besluit verder om aan de memorialisten kennis te geven
dat aan hun verzoek is voldaan.
Locale Wetten der Z.A. Rep. II. 81.
No. 212. VOLKSRAADSBESLUIT, 9 MEI 1887.
ART. 57. 1 ” De Volksraad, gelet hebbende op Uitv. Raadsbesluit,
art. 162, dd. 9 Mei 1887, besluit :
‘-‘ a. dat alle personen, die tijdens het overnemen van het stuk
gronds, door de Londensche Conventie toegevoegd aan
deze Republiek, stemgerechtigde burgers waren, in de
landstreken toen genaamd Stellaland en Goosen, en wier
woningen, woonplaatsen of plaatsen, gelegen waren in
het gebied dat door de Londensche Conventie aan deze
Republiek is toegevoegd, en die sinds dien tijd geheel
of grootendeels gevestigd zijn geweest in deze Republiek,
zullen stemgerechtigde burgers zijn van deze Republiek ;
for a decrease in the number of members of the Volksraad,
resolves to place the number of members for the districts of
Pretoria, Potchefstroom, Lijdenburg, and Rustenburg at three
each, and for the other districts at two members each ; and
resolves further that the Raad shall itself regulate the decrease
before it is dissolved ; and resolves further to inform the
memorialists that their request has been acceded to.
No. 212. RESOLUTION OF THE VOLKSRAAD,
9 MAY 1887.
ART. 57. x The Volksraad, having noticed the resolution
of the Executive Council, art. 162, dated 9 May 1887, decides :
a. that all persons, who, at the time of taking over the
piece of country which was added to this Republic
by the London Convention, were burghers pos-
sessing the franchise in the territories then called
Stellaland and Goshen, and whose dwellings,
places of abode or farms were situated within the
territory which was added to this Republic by
the London Convention, and who have since
that time been settled entirely or for the greater
part in this Republic, shall be burghers of this
Republic and shall possess the franchise ;
1 Repealed by Procl. No. 34 of 1901.
480 SOUTH AFRICAN REPUBLIC [1887
”- b. dat een lijst van al deze personen zal worden opgemaakt
en in de Staatscourant gepubliceerd ;
‘-‘ c. dat de uitvoering van dit besluit worde opgedragen aan
de Regeering . . . ;
” d. dat de beslissing over de vraag, wie in de termen van dit
besluit zal vallen, zal berusten bij de Regeering. Van
de beslissing der Regeering zal een appel in hoogste
instantie zijn bij den Uitvoerenden Raad, welk appel
bij den Uitvoerenden Raad moet zijn ingediend binnen
zes weken nadat de beslissing der Regeering aan den
belanghebbende is medegedeeld.”
Locale Wetten der Z.A. Rep. II. 191.
No. 213. VOLKSRAADSBESLUIT, 21 JULIJ 1887.
ART. laoj. 1 De Raad gelet hebbende op art. 4 van ‘t Commissie
rapport thans onder behandeling, verzoekende een ambtenaar als
hoofd van ‘t mijnwezen, besluit zich te vereenigen met genoemde
aanbeveling en besluit de Regeering te machtigen genoemden amb-
tenaar aan te stellen onder een salaris van 600 per jaar.
Locale Wetten der Z.A. Rep. II. 203.
b. that a list of all these persons shall be made up
and published in the Staatscourant ;
c. that the carrying into effect of this resolution shall
be entrusted to the Government . . . ;
d. that the decision as to who shall fall under the
terms of this resolution shall rest with the Govern-
ment. From the decision of the Government
there shall be an appeal in the last resort to
the Executive Council, which appeal must be
handed in to the Executive Council within six
weeks from the time when the decision of the
Government shall be communicated to the party
concerned.
No. 213. RESOLUTION OF THE VOLKSRAAD,
21 JULY 1887.
ART. 1203. 1 The Raad, having noticed art. 4 of the Com-
mission’s report now under discussion, in which it is requested
that an official be appointed as head of the mining industry,
decides to accept the said recommendation, and decides to
authorise the Government to appoint the said official at a salary
of 600 per year.
1 Repealed by Procl. No. 34 of 1901.
1887] PUBLIC DIGGINGS 481
No. 214. OP DE VERTEGENWOORDIGING IN DEN VOLKSRAAD
VAN DE PUBLIEKE DELVERIJEN. [n Aug. 1887.]
WET No. 12, 1887. 1
(Goedgekeurd en vastgesteld bij besluit van den Edel Achtb. Volksraad,
art. 1266, dd. 25 Julij 1887.)
De Volksraad, de noodzakelijkheid inziende van eene nieuwe
regeling aangaande de vertegenwoordiging in den Volksraad, van de
bewoners der publieke delverijen, in dezen Staat gelegen, besluit daarom-
trent de navolgende regelen en bepalingen vast te stellen.
ARTIKEL i. Er zullen, waar zulks door ZHEd. met advies en consent
van den Uitvoerenden Raad, noodig geacht moge worden, een of meer
geproclameerde publieke delverijen tot een afzonderlijke kiesafdeeling
worden verklaard. ZHEd. de Staatspresident zal eveneens het recht
hebben met advies en consent van den Uitvoerenden Raad, bestaande
of nog te proclameeren publieke delverijen toe te voegen aan zulk een
kiesafdeeling, of die er van af te scheiden en aan eene andere dergelijke
kiesafdeeling toe te voegen.
2. De grenzen van zulk een kiesafdeeling zullen door ZHEd. den
Staatspresident bij proclamatie in de Staatscourant worden bekend
gemaakt, evenals de veranderingen die in die grenzen van tijd tot tijd
mochten worden aangebracht.
3 . De volgens wet stemgerechtigde burgers van zulk een kiesafdeeling
No. 214. ABOUT THE REPRESENTATION IN THE
VOLKSRAAD OF THE PUBLIC DIGGINGS, [n Aug.
1887.]
LAW No. 12, I887- 1
(Approved and confirmed by resolution of the Volksraad, art. 1266,
dated 25 July 1887.)
The Volksraad, realising that it is necessary to make a
new arrangement regarding the representation in the Volks-
raad of those dwelling on the public diggings situated within
this State, resolves to lay down the following rules and regula-
tions on the subject :
ARTICLE i. Where it may be deemed necessary by the
State President, with the advice and consent of the Executive
Council, one or more diggings, having been proclaimed public
diggings, shall be declared to form a separate electoral division.
The State President shall likewise have the right, with the
advice and consent of the Executive Council, to add any
public diggings now existing or which may still be declared
public, to such electoral division, or to separate the same
therefrom and to add them to another such electoral division.
2. The boundaries of such an electoral division shall be
made public by the State President by proclamation in the
Staatscourant, as also the changes in those boundaries which
may be effected from time to time.
3. The burghers of such an electoral division possessing
1 Repealed by Procl. No. 34 of 1901.
31
482 SOUTH AFRICAN REPUBLIC [1888
zullen gerechtigd zijn, tot het verkiezen van een vertegenwoordiger in
den Volksraad, welke vertegenwoordiger volgens de vereischten der
wet, als zoodanig verkiesbaar moet zijn.
Locale Wetten der Z.A. Rep. II. 153.
No. 215. HET GEBRUIK DER HOLLANDSCHE TAAL
VRERPLICHTEND STELLENDE. [30 Juli 1888.]
WET. No. 10, I888. 1
(V astgesteld en goedgekeurd bij besluiten van den Ed. Achtb. Volksraad,
artt. 1017/1025, dd. 13 Juli 1888, en artt. 1026/1027, dd. 14 Juli
1888, en art. 1030, dd. 16 Juli 1888.)
ART. i. De Hollandsche taal is de officieele taal des lands. Alle
andere talen zijn vreemde talen.
2. ‘Alle officieele stukken, kennisgevingen, dienstbrieven en andere
schrifturen van ambtenaren moeten zijn opgesteld en geschreven in de
Hollandsche taal. Zij mogen vergezeld gaan van eene vertaling in
eene vreemde taal. Deze vertalingen moeten echter als zoodanig zijn
gemerkt.
Correspondentie met het buitenland mag in een vreemde taal
geschieden.
3. In alle Hoven van den Staat zal steeds door alle ambtenaren de
Hollandsche taal worden gebruikt. Die ambtenaren zullen tevens
zorgen dat alle pleidooien in die taal worden gehouden.
the franchise according to law shall be entitled to elect one
representative for the Volksraad, which representative shall
be eligible as such according to the demands of the law.
No. 215. MAKING THE USE OF THE DUTCH LANGUAGE
COMPULSORY. [30 July 1888.] *
LAW No. 10, i888. 2
(Confirmed and approved by resolution of the Volksraad, arts.
1017/1025, dated 13 July 1888, and art. 1026/1027, dated
14 July 1888, and art. 1030, dated 16 July 1888.)
ART. i. The Dutch language shall be the official language
of the country. All other languages are foreign languages.
2. All official documents, notices, official correspondence
and other writings of officials shall be composed and written
in the Dutch language. They may be accompanied by a
translation into a foreign language. This translation, how-
ever, shall be marked as such.
Correspondence with foreign countries may be conducted
in a foreign language.
3. In all Courts of the State the Dutch language shall
always be used by all officials. Those officials shall further
see to it that all pleadings are held in that language.
1 Repealed by Procl. No. 34 of 1901.
ASIATIC IMMIGRATION 483
4. Alle opveilingen zullen door de Marktmeesters geschieden in de
Hollandsche taal.
De Marktmeesters zullen echter het recht hebben om het door hen
gezegde daarna te herhalen in een vreemde taal.
5. Ambtenaren, die zich niet houden aan de voorschriften van de
artikelen 2, 3 of 4 dezer Wet, kunnen door de Regeering worden gestraft
met eene boete, die door de Regeering naar omstandigheden zal worden
bepaald, echter niet tebovengaande de som van /io voor elke overtre-
ding, met schorsing of met ontslag.
6. Deze Wet treedt in werking dadelijk na publicatie in de Staats-
courant.
Locale Wetten dev Z,A. Rep. III. 33.
No. 216. VOLKSRAADSBESLUIT, 9 MEI 1888.
ART. 41. De Raad, gelet hebbende op de Regeeringsmissive, dd.
19 April, 11., met Uitv. Raadsbesluit, art. 346, dd. 6 Sept. 1887, daarin
vervat, neemt kennis van de mededeeling daarin gedaan. Naardien
het echter is gebleken en het steeds meer en meer blijkt dat het in-
stroomen van Koelies, Chineezen en andere Aziaten binnen deze Re-
publiek, nadeelig werkt op de belangen van dezen Staat, draagt de
Raad de Regeering op zich wederom in correspondentie te stellen met
Harer Majesteits Regeering, ten einde een zoodanige wijziging in de
bepalingen der Conventie te bekomen als waardoor het de Regeering
4. All auction sales shall be held by the Market-masters
in the Dutch language.
The Market-masters shall, however, have the right to
repeat in a foreign language what was said by them.
5. Officials who do not adhere to the provisions of articles 2,
3, or 4 of this Law, are liable to be punished by the Govern-
ment with a fine to be fixed by the Government according to
circumstances, but not exceeding the sum of 10 for each
offence, together with suspension or dismissal.
6. This Law shall take effect immediately after its publica-
tion in the Staatscourant.
No. 216. RESOLUTION OF THE VOLKSRAAD,
9 MAY 1888.
ART. 41. The Raad, having noticed the Government’s
letter, dated igth April last, together with the resolution of
the Executive Council, art. 346, dated 6th September 1887,
contained therein, takes note of the information therein given.
As, however, it has appeared and it becomes more and more
evident that the streaming-in of Coolies, Chinese, and other
Asiatics into this Republic is detrimental to the interests of
this State, the Raad authorises the Government to enter into
communication with Her Majesty’s Government again, in
order to obtain such a change in the provisions of the Con-
vention as shall permit the Government of the Country to
484 SOUTH AFRICAN REPUBLIC [1889
dezes lands zal vrijstaan de instrooming der bedoelde volken te beletten
of op voldoende wijze te regelen.
Het Uitv. Raadsbesluit luidde als volgt :
Aan de orde : Minute 4095/87, inhoudende Volksraadsbesluit,
art. 589, dd. 17 Juni 1887, re net beletten van den verderen invoer van
Koelies, Chineezen en alle andere Aziaten.
De Uitv. Raad zich vereenigende met het advies van den Staats-
procureur, 1 ziet geen kans een Concept Wet zooals door memorialisten
gevraagd, aan den E.A. Volksraad voor te leggen.
Locale Wetten der Z.A. Rep. III. 37.
No. 217. VOLKSRAADSBESLUITEN, 27 MEI 1889.
ART. 253. ‘ De Volksraad, in overweging genomen hebbende
het Uitv. Raadsbesluit, art. 260, dd. 13 Mei 1889, gelet hebbende
op de dringende aanvraag der Regeering om meer hulp in den Uitv.
Raad, kennis genomen hebbende van de vele veranderingen sedert 1873
aangebracht, in de samenstelling van den Uitv. Raad, 2 in aanmerking
nemende de verklaring der beide rechtsgeleerde adviseurs van de
Regeering, dat het verkiezen van nog een lid van den Uitv. Raad niet
prohibit the streaming-in of the said nations or to regulate it
in an adequate manner.
The resolution of the Executive Council ran as follows :
On the agenda : Minute 4095/87, containing resolution of
the Volksraad, art. 589, dated lyth June 1887, about pro-
hibiting the further introduction of Coolies, Chinese, and all
other Asiatics.
The Executive Council, associating itself with the advice
of the State Attorney, 1 sees no chance of laying before the
Volksraad such a Bill as the memorialists have requested.
No. 217. RESOLUTION OF THE VOLKSRAAD,
27 MAY 1889.
ART. 253. The Volksraad, having deliberated on the
resolution of the Executive Council, art. 260, dated i3th May
1889, having noticed the urgent request of the Government
for more help in the Executive Council, having noted the
many changes effected since 1873 in the composition of the
Executive Council, 2 taking into account the statement of both
the legal advisers of the Government to the effect that the
election of another member of the Executive Council will not
be in conflict with the existing laws of the country, having
1 The opinion of the State Attorney ran as follows : ” It seems to me
fortunate that the instruction of the Volksraad contains the words, ‘ if
possible.’ A law, as here asked for, which clearly has for its aim and object
to prohibit the influx of Chinese, Coolies, etc., is at variance with the Conven-
tion with England. Therefore I cannot ad vise that such a law be proposed
to the Volksraad. (Signed) DR. W. J. LEYDS, State Attorney.”
2 Since 1874 there had been three unofficial members of the Executive.
1889] THE GRONDWET 485
in strijd zal zijn met de bestaande wetten des|lands, geletjhebbende op
de voorgelegde memories, besluit nog een officieel lid voor den Uitv.
Raad te verkiezen als notulenhouder van den Raad, met dezelfde toelage
als aan de non-officieele leden wordt toegestaan.”
ART. 256. ” De Volksraad besluit dat net pas gekozen officieel lid
en notulenhouder van den Uitv. Raad in dienst zal blijven voor den
tijd van 3 jaar en dat de gezegde ambtenaar bee’edigd zal worden voor
den Uitv. Raad.”
Locale Wetten der Z.A. Rep. III. 150.
No. 218. GRONDWET VAN DE ZUID AFRIKAANSCHE
REPUBLIEK. [19 Nov. 1889.]
[De belangrijkste punten waarop deze Grondwet verschilde van
die van 1858 zijn aangegeven aan de voet van de bladzij-
den 363-410. Hier volgen enige artikelen die niet op die
wijze behandeld konden worden.]
ART. 82 [85].* De Staatspresident oefent zijne macht uit met den
Uitvoerenden Raad. Den Staatspresident zal een Uitvoerende Raad
toegevoegd worden, bestaande uit den Commandant-Generaal, twee
stemgerechtigde burgers, een Secretaris en een Notulenhouder, welke
gelijke stem zullen hebben en den titel voeren van leden van den
Uitvoerenden Raad. De Superintendent van Naturellen Zaken en de
Notulenhouder zullen ex-officio lid zijn van den Uitvoerenden Raad.
De Staatspresident en leden van den Uitvoerenden Raad zullen wel
taken into their consideration the memorials submitted,
decides to choose yet another official member for the Executive
Council as keeper of the minutes of the Raad, with the same
allowance as is made to the non-official members.
ART. 256. The Volksraad decides that the newly elected
official member and Minute-keeper of the Executive Council
shall remain in office for a period of three years, and that said
official shall take the oath before the Executive Council.
No. 218. GRONDWET OF THE SOUTH AFRICAN
REPUBLIC. [19 Nov. 1889.]
[The chief points of difference between this Grondwet and that of
1858 are indicated in foot-notes on pp. 363-410. The
following articles could not be dealt with in this way.]
ART. 82 [85]. 1 The State President exercises his power along
with the Executive Council. With the State President shall
be associated an Executive Council consisting of the Com-
mandant-General, two burghers possessing the franchise, a
Secretary and a Minute-keeper whose votes shall all be of
equal value and who shall bear the title of members of the
Executive Council. The Superintendent of Native Affairs
and the Minute-keeper shall be ex officio members of the
1 The bracketed numbers indicate the corresponding articles of the old
Grondwet.
486 SOUTH AFRICAN REPUBLIC [1889
zitting doch geen stem in den Volksraad hebben. Het zal den Staats-
president vrijstaan bij voorkomende belangrijke zaken de hoofdambte-
naren uit te noodigen in den Uitvoerenden Raad tegenwoordig te zijn,
wier departement, het te behandelen onderwerp meer direct aangaat.
Gezegde hoofd-ambtenaar zal alsdan een stem in den Uitvoerenden
Raad hebben, en mede verantwoordelijk zijn voor de genomen besluiten
en die mede onderteekenen.
83. Volgens de bedoeling van art. 82 zullen als hoofdambtenaren
beschouwd worden : de Staatsprocureur, Thesaurier, Auditeur, Super-
intendent van Onderwijs, Weesheer, Registrateur van Akten, Land-
meter-Generaal, Postmeester-Generaal, het Hoofd van het Mijnwezen,
Hoofddirecteur van den Telegraafdienst en het Hoofd van Publieke
Werken.
115 [127]. Het Volk vertrouwt de rechtspraak toe aan :
a. Een Hoog Gerechtshof ;
b. Een Rondgaand Hof ;
c. De Landdrosten in hunne qualiteit en zoodanige andere
ambtenaren als door de Wet met rechtelijke bevoegdheid
zullen worden bekleed.
De Hoven doen uitspraak zoo spoedig mogelijk na het voldingen
der zaak.
De Hoofdrechter en Strafrechters moeten behoorlijk in de rechten
gepromoveerd zijn.
Executive Council. The State President and the members of
the Executive Council shall have session but no right to vote
in the Volksraad. When important matters arise, the State
President shall be at liberty to invite those head-officials to
attend the Executive Council whose departments are more
directly concerned with the matter to be dealt with. The
said head-officials shall then have a vote in the Executive
Council, shall share the responsibility for the decisions taken,
and they too shall sign them.
83. According to the intention of art. 82 the following
persons shall be regarded as head-officials : the State Attorney,
the Treasurer, the Auditor, the Superintendent of Education,
the Orphan Master, the Registrar of Deeds, the Surveyor-
General, the Postmaster-General, the Head of the Mining
Industry, the Chief Director of the Telegraph Service, and the
Head of Public Works.
115 [127]. The nation entrusts the pronouncing of judg-
ment to :
a. A High Court of Justice ;
b. A Circuit Court ;
c. The Landdrosts in their [judicial] capacity, and such
other officials as shall be invested by law with
judicial authority.
The courts shall pronounce sentence as soon as possible
after a case has been decided.
The Chief Justice and the Puisne Judges shall hold proper
degrees in law.
THE GRONDWET 487
Het Openbaar Ministerie der Publieke Vervolging berust bij den
Staatsprocureur en onder zijn toezicht bij de Publieke Aanklagers der
verschillende districten.
De Leden der beide eerste Hoven worden voor hun leven aangesteld.
De Wet regelt voor hen de wijze waarop bij wangedrag of onbe-
kwaamheid hun ontslag eervol of niet eervol, zal worden verleend.
I4O. 1 Districtsraden en Stads- of Dorpsbesturen kunnen opgericht
worden waar de bevolking zulks verlangt. Aan het hoofd van ieder
district staat een Landdrost, die ex-officio Voorzitter is van den Districts
Raad, te kiezen door de burgers van het district, uit zooveel leden
bestaande als er Veldkornetschappen zijn.
141. Aan de Districtsraden is de zorg der openbare wegen of andere
openbare werken in het district toevertrouwd, benevens van alle andere
zaken welke door de Wet hun worden opgelegd.
142. Met uitzondering van de bij de Wet vastgestelde salarissen
worden alle kosten van het Districtsbestuur door het district zelf
gedragen. Jaarlijks wordt daartoe eene begrooting van inkomsten en
uitgaven gemaakt door den Districtsraad vastgesteld en aan den Uit-
voerenden Raad ter goedkeuring opgezonden. Telken jare wordt
op gelijke wijze rekening gedaan van het verloopen dienstjaar, die door
den Districtsraad wordt gesloten en voor finale goedkeuring aan den
Uitvoerenden Raad wordt opgezonden.
The office of Public Prosecutor shall rest with the State
Attorney and, under his supervision, with the Public Pro-
secutors of the several districts.
The members of the first two courts shall be appointed for
life.
The law regulates concerning them the- manner in which
in case of misbehaviour or incompetence they can receive an
honourable or dishonourable dismissal.
140. 1 District Councils and town or village managements
may be established where the population so desires. At the
head of each district is a Landdrost who is ex officio Chairman
of the District Council to be elected by the burghers of the
district and to consist of as many members as there are field-
cornetcies.
141. To the District Councils shall be entrusted the care
of the public roads or other public works in the district, as also
of all other matters which may be placed under their charge.
142. With the exception of the salaries appointed by law
all expenses of the District Council shall be borne by the district
itself. An annual estimate of revenue and expenditure shall
be drawn up, confirmed by the District Council and submitted
to the Executive Council for approval. In the same manner
accounts shall be rendered each year of the previous financial
year, which accounts shall be passed by the District Council
and submitted to the Executive Council for their final
sanction.
1 Vide also the 1858 Grondwet, art. 174, and footnote.
488 SOUTH AFRICAN REPUBLIC [1890
De Districtsraad zal voor het heffen van eenige belasting de
goedkeuring van den Volksraad vooraf ontvangen.
143. Aan het hoofd van ieder stads- of dorpsbestuur, bij de wet
als zoodanig erkend, staat een Burgemeester en een Raad van 6 of 8
leden, naar de bevolking.
Alle kosten tot goedmaking van deze plaatselijke administratie
worden door iedere plaats gedragen. Voor het heffen van eenige
belasting door een Stads- of dorpsbestuur wordt de goedkeuring der
wet vereischt.
Voor de plaatselijke begrooting en rekening gelden dezelfde regels
als in het vorig artikel voor die van een district zijn vastgesteld.
* * *
Locale Wetten der Z.A. Rep. III. 173.
No. 219. TOT INSTELLING EENER VOLKSVERTEGENWOOR-
DIGING BESTAANDE UIT TWEE VOLKSRADEN.
[23 Juni 1890.]
WET No. 4, i8go. 1
(Goedgekeurd en vastgesteld bij besluit van den E.A. Volksraad, art. 460
dd. 23 Juni 1890.]
ARTIKEL i. De Wetgevende Macht zal berusten bij eene Volks-
vertegenwoordiging, die zal bestaan uit een Eersten Volksraad en een
Tweeden Volksraad.
The District Council shall, before it levies any tax, first
receive the sanction of the Volksraad.
143. At the head of each town or village management
recognised as such by law there shall be a Mayor and a Council
of 6 or 8 members, according to the population.
All charges for defraying the expenses of this local ad-
ministration shall be borne by each place. For the levying of
any taxes by a town or village management legal sanction is
demanded.
For the local estimates and accounts the same rules shall
apply as are laid down in the preceding article for those of a
district.
No. 219. TO ESTABLISH A NATIONAL REPRESENTA-
TION CONSISTING OF TWO VOLKSRAADS.
[23 June 1890.]
LAW No. 4, iSgo. 1
(Approved and confirmed by resolution of the Volksraad, art. 460,
dated 23 June 1890.)
ARTICLE I. The power to legislate shall rest with a national
representation which shall consist of a First Volksraad and a
Second Volksraad.
1 Repealed by Procl. No. 34 of 1901.
1890] THE TWO VOLKSRAADS 489
2. De Eerste Volksraad zal zijn het hoogste gezag in den Staat,
evenals voor het inwerkingtreden dezer wet de Volksraad.
De Eerste Volksraad zal zijn het lichaam tot aan de inwerking-
treding dezer wet genoemd de Volksraad. Van af het tijdstip dier
inwerkingtreding zal de naam van dat lichaam veranderd worden van
Volksraad in Eerste Volksraad. De personen, als leden dat lichaam
vormend, zullen echter dezelfden blijven ; alleen zullen zij van af
genoemd tijdstip in plaats van leden van den Volksraad genoemd
worden leden van den Eersten Volksraad.
Alle wetten en besluiten, betrekking hebbende op den Volksraad en
de leden daarvan zullen van kracht blijven en van toepassing zijn op
den Eersten Volksraad en de leden daarvan, uitgezonderd in zooverre
als daarin door deze en latere wetten verandering wordt of zal worden
gebracht.
3. De Eerste en de Tweede Volksraad vergaderen minstens eenmaal
‘s jaars.
Hunne gewone vergaderingen worden in eene vereenigde zitting
geopend op den eersten Maandag in de maand Mei, onder voorzitter-
schap van den voorzitter van den Eersten Volksraad.
Buitengewone vergaderingen kunnen door den Staatspresident
worden bijeengeroepen zoo dikwijls hij die in ‘s lands belang noodig
oordeelt.
4. Het getal van de leden van den Tweeden Volksraad zal hetzelfde
2. The First Volksraad shall be the highest authority in
the State, as was the Volksraad before this law came into
effect.
The First Volksraad shall be the body called till the taking
effect of this law the Volksraad. From the moment of such
taking effect the name of that body shall be changed from
Volksraad to First Volksraad. The persons, however, who
constitute that body as members shall remain the” same ; only,
they shall, from the moment mentioned, be called members
of the First Volksraad instead of members of the Volksraad.
All laws and resolutions having reference to the Volksraad
and the members thereof shall remain in force and be applicable
to the First Volksraad and the members thereof, except in so
far as any change shall be made therein by this law or by later
laws.
3. The First and the Second Volksraad shall meet at least
once a year.
Their ordinary meetings shall be opened in a combined
session on the first Monday in the month of May under the
chairmanship of the chairman of the First Volksraad.
Special meetings may be called by the State President as
often as he deems them necessary in the interests of the
country.
4. The number of members of the Second Volksraad shall
490 SOUTH AFRICAN REPUBLIC [1890
zijn als van den Eersten Volksraad. Dit getal zal voor beide Volksraden
nader door den Eersten Volksraad worden bepaald. 1
5. [Eed der leden.]
6. De wijze van verkiezing van de leden van den Tweeden^ Volks-
raad, zal dezelfde zijn als die van de leden van den Eersten Volksraad.
7. De leden van den Tweeden Volksraad zullen dezelfde toelagen
genieten als de leden van den Eersten Volksraad, en dezelfde ver-
plicfytingen hebben, wat betreft de bekendraaking hunner wetten en
besluiten aan hunne kiezers.
8. De leden van den Tweeden Volksraad worden gekozen voor den
tijd van vier jaren.
In de eerste gewone zitting van den Tweeden Volksraad zal door net
lot worden bepaald welke leden zullen behooren tot die helft, die reeds
na verloop van de eerste twee jaren zal moeten aftreden.
9. De leden van den Eersten Volksraad worden gekozen door die
stemgerechtigde burgers welke het burgerrecht verkregen hebben 6f
v66r de inwerkingtreding dezer wet 6f daarna door geboorte, en den
ouderdom van zestien jaren bereikt hebben.
Het kiesrecht voor den Eersten Volksraad kan bovendien ook
verkregen worden door hen, die gedurende 10 jaar verkiesbaar zijn
geweest voor den Tweeden Volksraad, bij besluit van den Eersten
Volksraad en volgens regelen later bij de wet vast te stellen.
10. De leden van den Tweeden Volksraad worden gekozen door
be the same as of the First Volksraad. This number shall be
later specified for both Volksraads by the First Volksraad. 1
5. [The oath of members.]
6. The manner of electing the members of the Second
Volksraad shall be the same as that of electing members of
the First Volksraad.
7. The members of the Second Volksraad shall enjoy the
same allowances as the members of the First Volksraad and
shall be under the same obligations as regards making their
electors acquainted with their laws and resolutions.
8 The members of the Second Volksraad shall be chosen
for the period of four years.
In the first ordinary session of the Second Volksraad it shall
be decided by lot which members shall belong to that half who
shall vacate their seats on the expiry of the first two years.
9. The members of the First Volksraad shall be chosen by
those burghers possessing the franchise who have acquired
the franchise either before the taking effect of this law or there-
after by birth, and who have reached the age of sixteen years.
The franchise for the First Volksraad may moreover also
be obtained by those who for 10 years have been eligible for
the Second Volksraad, on a resolution of the First Volksraad,
and according to rules to be fixed by law hereafter.
10. The members of the Second Volksraad shall be elected
1 By resolution of 2 Aug. 1890, art. 1 168, each Volksraad had 24 members.
1890] THE TWO VOLKSRAADS 491
alle stemgerechtigde burgers, die den ouderdom van zestien jaren
bereikt hebben.
1 1 . Niemand mag zich voor beide Volksraden of in meer districten
of kiesafdeelingen tegelijk verkiesbaar stellen.
12. [Verboden familiebetrekking van leden.]
13. [Krijgsofficieren en ambtenaren zijn niet verkiesbaar.]
14. [Gekleurden, bastaarden, personen van een openlijk slecht
gedrag, niet-gerehabiliteerde bankroetiers ook niet verkiesbaar.]
15. Orn te kunnen zitting nemen als lid van den Eersten Volksraad
nioet hij, die daartoe wettig gekozen is, dertig jaren oud en lid eener
Protestantsche kerk zijn, in de Republiek wonen, daar vast eigendom
hebben en het burgerrecht verkregen hebben, of v66r de inwerking-
treding dezer wet, of daarna door geboorte, 6f het kierecht voor den
Eersten Volksraad verkregen hebben volgens alinea 2 van art. 9.
1 6. Om te kunnenzitting nemen als lid van den Tweeden Volksraad
moet hij, die daartoe wettig gekozen is, dertig jaren oud, gedurende de
twee onmiddellijk voorafgaande jaren stemgerechtigd burger, lidmaat
eener Protestantsche kerk zijn, in de Republiek wonen en daar vast
eigendom hebben.
17. Elke Volksraad kiest zijn eigen voorzitter uit zijn midden.
1 8. Elke Volksraad benoemt buiten zijn midden zijn eigen secretaris
op voordracht van den Uitvoerenden Raad.
by all burghers possessing the franchise who have reached the
age of sixteen years.
11. No one may place himself eligible for both Volksraads
or in more districts or electoral divisions [than one] at the
same time.
12. [Forbidden family relationship of members.]
13. [Military officers and officials are not eligible.]
14. [Coloured people, half-castes, persons of openly bad
behaviour, and unrehabilitated bankrupts not eligible.]
15. In order to be able to take session as a member of the
First Volksraad, any person lawfully chosen must be thirty
years of age and a member of a Protestant Church, he must
reside in the Republic, possess immovable property there, and
must have obtained the franchise either before the taking
effect of this law or thereafter by birth, or he must have ob-
tained the franchise for the First Volksraad according to
section 2 of art. 9.
16. In order to be able to take session as a member of the
Second Volksraad, any person lawfully chosen must be thirty
years of age, must have been a burgher possessing the franchise
during the two years immediately preceding, must be a member
of a Protestant Church, must reside in the Republic, and
must possess immovable property there.
17. Each Volksraad shall elect its own chairman from its
midst.
18. Each Volksraad shall appoint its own secretary, not
being one of its own members, on the recommendation of the
Executive Council.
492 SOUTH AFRICAN REPUBLIC [1890
19. Elke’^ Volksraad zal te beoordeelen hebben of verkiezingen en de
qualificaties van zijn eigen leden volgens wet zijn.
20. [Elk Volksraad stelt zijn eigen reglement van orde vast.]
21. De Staatspresident en de leden van den Uitvoerenden Raad
zullen in beide Volksraden zitting hebben, met recht van deelneming
aan de discussies, doch geene stem.
22. Het quorum zowel van den Eersten als van den Tweeden
Volksraad zal bestaan uit twaalf leden.
Als in den Tweeden Volksraad geen quorum aanwezig is, zal zijn
secretaris daarvan onmiddellijk bericht doen aan den Eersten Volks-
raad.
23. [Beide Volksraden zitten in het openbaar.]
24. [Zij houden notulen van hunne handelingen.]
25. Elk Volksraad heeft het recht zijn eigen leden te straff en voor
wanordelijk gedrag.
Elk Volksraad heeft daarenboven het recht een lid uit te stooten
met twee derden der uitgebrachte stemmen.
26. Aan het volk zal drie maanden tijds gelaten zijn om over een
voorgestelde wet zijn oordeel aan de Volksraden desverkiezende te
kunnen inleveren, behalve die wetten, die geen uitstel kunnen lijden.
27. De Tweede Volksraad zal de macht hebben de volgende onder-
werpen zoo noodig bij wijze van wet of besluit verder te regelen :
i. Het mijnwezen.
19. Each Volksraad shall decide whether elections and the
qualifications of its own members are in accordance with law.
20. [Each Volksraad shall lay down its own rules of pro-
cedure.]
21. The State President and the members of the Executive
Council shall have session in both Volksraads, with the right to
take part in discussions, but without a vote.
22. The quorum of the First as well as of the Second Volks-
raad shall consist of twelve members.
When in the Second Volksraad no quorum is present, its
secretary shall immediately announce the fact to the First
Volksraad.
23. [The sessions of both Volksraads shall be open to the
public.]
24. [Minutes of their proceedings shall be kept.]
25. Each Volksraad shall have the right to punish its own
members for disorderly behaviour.
Each Volksraad shall, moreover, have the right to expel a
member by the decision of two-thirds of the votes recorded.
26. A period of three months shall be given the people in
which to express their opinion on a proposed law to the Volks-
raads, should they so desire, except in the case of those laws
which can brook no delay.
27. The Second Volksraad shall have the power further to
regulate if necessary by law or resolution the following
subjects :
i. The mining industry.
1890] THE TWO VOLKSRAADS 493
2. Het maken en onderhouden van wagen en postwegen.
3. Het postwezen.
4. Het telegraaf- en telefoonwezen.
5. Het beschermen van uitvindingen, monsters en fabrieks-
merken.
6. Het beschermen van het recht van den auteur.
7. De exploitatie en het onderhoud der houtbosschen en der
zoutpannen.
8. Het bestrijden van besmettelijke ziekten.
9. De toestand, de rechten en verplichtingen van maat-
schappijen.
10. Insolventie.
11. De civiele procedure.
12. De crimineele procedure.
13. Zulke andere onderwerpen als de Eerste Volksraad nader
bij besluit of wet zal bepalen, of de Eerste Volksraad
speciaal naar den Tweeden Volksraad zal verwijzen.
28. Alle wetten of besluiten door den Tweeden Volksraad aangeno-
men, worden door hem zoo spoedig mogelijk, namelijk uiterlijk binnen
acht en veertig uren medegedeeld, zoowel aan den Eersten Volksraad
als aan den Staatspresident.
29. De Staatspresident heef t het recht, wanneer hij van den Tweeden
Volksraad kennis heeft gekregen van de aanneming van een wet of een
besluit, om binnen veertien dagen na ontvangst dier kennisgeving
2. The making and the up-keep of wagon and postal
roads.
3. The postal service.
4. The telegraph and telephone service.
5. The protection of inventions, samples [or patterns]
and trade-marks.
6. The protection of authors’ rights.
7. The utilising and up-keep of forests and salt-pans.
8. The combating of infectious diseases.
9. The condition, rights and duties of companies.
10. Insolvency.
11. Civil procedure.
12. Criminal procedure.
13. Such other subjects as the First Volksraad shall
further specify by resolution or law, or as the
First Volksraad shall specially refer to the
Second Volksraad.
28. All laws or resolutions adopted by the Second Volks-
raad shall be made known by it as soon as possible, namely,
at the latest within forty-eight hours, to the First Volksraad
as well as to the State President.
29. The State President shall have the right, when he shall
have received notice from the Second Volksraad of the adop-
tion of a law or a resolution, to submit such law or such
494 SOUTH AFRICAN REPUBLIC [1890
die wet of dat besluit aan den Eersten Volksraad ter behandeling
voor te leggen.
De Staatspresident is in ieder geval verplicht om van de ontvangst
van zulk een kennisgeving mededeeling te doen aan den Eersten
Volksraad binnen gezegden termijn.
30. Indien de Staatspresident binnen de veertien dagen, bedoeld in
art. 29, de medegedeelde besluit niet aan den Eersten Volksraad ter
behandeling heeft voorgelegd, en de Eerste Volksraad het evenmin
noodig geacht heeft binnen die veertien dagen, bedoelde wet of be-
doeld besluit uit eigen beweging in behandeling te nemen, zal
de Staatspresident, tenzij hij, met advies en consent van den
Uitvoerenden Raad, het in het belang van den Staat onwenschelijk
acht, verplicht zijn die wet of dat besluit in de eerstvolgende
Staatscourant te doen publiceeren, tenzij binnen bovenbedoelde veertien
dagen de Eerste Volksraad mocht verdaagd zijn, in welk geval de
publicatie in de Staatscourant eerst na verloop van acht dagen na den
aanvang der eerstvolgende zitting van den Eersten Volksraad zal
plaats vinden.
31. Geen wet of besluit, door den Tweeden Volksraad aangenomen
zal van kracht zijn, tenzij door den Staatspresident gepubliceerd
in de Staatscourant.
32. De wettelijke kracht van een wet of een besluit, door den
Staatspresident in de Staatscourant gepubliceerd, mag niet word en
resolution, within fourteen days after receiving the notice, to
the First Volksraad to be dealt with by them.
The State President shall in any case be bound to inform
the First Volksraad within the said period of the receipt of
such notice.
30. If the State President shall not submit the resolution
conveyed to him to the First Volksraad to be dealt with by
them within the fourteen days mentioned in art. 29, and if
likewise the First Volksraad shall not deem it necessary on
their own initiative to deal with the said law or the said re-
solution within the said period of fourteen days, then the
State President, unless he shall, with the advice and consent
of the Executive Council, deem such a course undesirable in
the interests of the State, shall be bound to cause that law or
that resolution to be published in the next issue of the Staats-
courant, unless the First Volksraad should be adjourned within
the said period of fourteen days, in which case the publication
in the Staatscourant shall take place only on the expiry of
eight days after the beginning of the next following session
of the First Volksraad.
31. No law or resolution adopted by the Second Volksraad
shall be of force unless it shall be published in the Staatscourant
by the State President.
32. The legal force of a law or a resolution published by
the State President in the Staatscourant shall not be disputed,
1890] FRANCHISE LAW 495
betwist, behoudens het recht van het volk om memories daaromtrent
te maken.
33. Deze wet treedt in werking twee maanden na publicatie in
de Staatscourant.
Locale Wetten der Z.A. Rep. IV. 22.
No. 220. WIJZIGING VAN WET No. 7, 1882.
[23 Juni 1890.]
WET No. 5, iSgo. 1
(Goedgekeurd en vastgesteld bij besluit van den E.A. Volksraad,
art. 461, dd. 23 Juni 1890.)
NADEMAAL het voor het tot stand komen eener wet op eene
Volksvertegenwoordiging, bestaande uit twee Volksraden, wenschelijk
is wijziging te brengen in Wet No. 7, 1882, genaamd de wet regelende
het algemeen kiesrecht der burgers van de Zuid-Afrikaansche
Republiek, zoo wordt hierbij vastgesteld en bepaald als volgt :
ARTIKEL i. Het eerste artikel van Wet No. 7, 1882, wordt hierbij
gewijzigd als volgt :
Om het kiesrecht in de Republiek te bezitten moet men burger
zijn. Daaromtrent gelden de volgende bepalingen :
a. Om burger te wezen moet men binnen de Republiek geboren
zijn of genaturaliseerd worden. Om kiezer te zijn,
moet men den ouderdom van 16 jaren bereikt hebben.
saving, however, the right of the people to present petitions
concerning it.
33. This law shall take effect two months after its publica-
tion in the Staatscourant.
No. 220. A MODIFICATION OF LAW No. 7, 1882.
[23 June 1890.]
LAW No. 5, 1890.!
(Approved and confirmed by resolution of the Volksraad, art. 461,
dated 23 June 1890.)
WHEREAS it is desirable for the coming into operation of a
law for a National Representation consisting of two Volksraads
to modify Law No. 7, 1882, entitled, ” the Law to regulate the
general franchise of the burghers of the South African Re-
public,” therefore it is hereby affirmed and laid down as follows :
ARTICLE i. The first article of Law No. 7, 1882, is hereby
modified as follows :
In order to possess the franchise in the Republic one must
be a burgher. With regard thereto the following regulations
shall be of force :
a. In order to be a burgher one must have been
born within the Republic or must have been
naturalised. In order to be a voter one must
have reached the age of 16 years.
1 Superseded by Law No. 13, 1891, for which see No. 224.
496 SOUTH AFRICAN REPUBLIC [1890
b. Personen, niet in de Republiek geboren, maar van ciders
ingekomen, kunnen net burgerrecht verkrijgen en dus
burgers worden, wanneer zij de hieronder vermelde
brieven van naturalisatie verkregen hebben en den
gevorderden eed hebben afgelegd.
c. Zulke personen zullen in handen van den daartoe aangewezen
ambtenaar den volgenden eed afleggen :
“Ik … tot heden . . . geboren . . . verlangend burger
der Zuid-Afrikaansche Republiek te worden en voldaan
hebbende aan alle voorschriften der wet betrekkelijk
de naturalisatie, verzaak, zie af en doe af stand van
alle gehoorzaamheid, getrouwheid en onderworpenheid
aan alle vreemde Vorsten, Hoofden, Staten en Souve-
reiniteiten en in ‘t bijzonder den Vorst, het Hoofd, den
Staat of de Souvereiniteiten waarvan ik tot nu toe een
onderdaan en burger ben, en zweer als onderdaan den
eed van getrouwheid en gehoorzaamheid aan de Regee-
ring en hare wetten en het volk der Zuid-Afrikaansche
Republiek.”
d. Vreemdelingen van elders ingekomen, kunnen toegelaten
worden tot de naturalisatie, mits zij van den Landdrost
van hun district of van den veldkornet hunner wijk
het bewijs overleggen, dat zij zich minstens twee jaren
hier te lande metterwoon gevestigd hebben en gedurende
b. Persons who were not born in the Republic but have
come in from elsewhere may obtain burgher
rights and thus may become burghers when
they have obtained the letters of naturalisation
mentioned below and have taken the oath
prescribed.
c. Such persons shall take the following oath before
any official appointed for the purpose :
” I … till to – day . . . born . . . being
desirous of becoming a burgher of the South
African Republic and having conformed to all
the demands of the law regarding naturalisation,
abandon, discard and renounce all obedience,
allegiance and subjection to all foreign Princes,
Heads, States and Sovereignties and in particular
to the Prince, Head, State or Sovereignty of
which I have till now been a subject and burgher,
and as a subject I swear the oath of allegiance
and obedience to the Government and its laws
and the people of the South African Republic.”
d. Foreigners who have come in from elsewhere may be
admitted to naturalisation, provided that they
submit proof from the Landdrost of their district
or the Field-cornet of their ward of having re-
sided in this country for at least two years, of
having conducted themselves during that time
1890] FRANCHISE LAW 497
dien tijd zich getrouw en gehoorzaam aan de wetten
des lands gedragen hebben en zich ook minstens twee
jaren lang hebben laten inschrijven op de veldcornet-
schapslijsten.
Het verzoek om naturalisatie wordt door den veld-
kornet, door middel van den Landdrost, met de noodige
bewijsstukken aan de Regeering opgezonden en door deze
aan den Staatsprocureur gerefereerd, die de stukken,
na ze in orde bevonden te hebben, terugzendt aan den
Uitvoerenden Raad, die dan de brieven van naturalisatie
uitreikt en den bedoelden persoon den eed afneemt
of door een daartoe aangewezen persoon doet afnemen.
De kosten der naturalisatie zijn ^5.
e, Personen, onder bijzondere omstandigheden door de
Regeering tot de naturalisatie uitgenoodigd, behoeven
geen twee jaren in het land gewoond te hebben of bij
den veldcornet ingeschreven te zijn geweest om tot de
naturalisatie te worden toegelaten en behoeven ook
geen som daarvoor te betalen.
2. Artikel 3 van genoemde wet wordt hierbij gewijzigd als volgt :
De in bovenstaande artikelen vermelde burgers, die het kiesrecht
hebben verkregen, hebben het recht om hunne namen als kiezers
te doen aanteekenen bij hunne respective veldcornetten, nadat zij
in a manner faithful and obedient to the laws
of the country, and of having had their names
enrolled for at least two years on the Field-
cornets’ lists.
The request to be naturalised shall be sent by
the Field-cornet, through the Landdrost, accom-
panied by the necessary proofs, to the Govern-
ment, and shall be referred by them to the State
Attorney, who shall send the proofs, after having
found them in order, back to the Executive
Council, who shall then issue the naturalisation
papers to the person concerned, and shall ad-
minister the oath or cause it to be administered
by some person appointed for the purpose.
The cost of naturalisation shall be 5.
e. Persons invited by the Government under special
circumstances to be naturalised need not to have
resided in the country for two years or to have
been enrolled by the Field-cornet in order to
be admitted to naturalisation, nor need they to
pay any sum therefor.
2. Article 3 of the said law shall hereby be modified as
follows :
The burghers mentioned in the preceding sections, who
have obtained the franchise, shall have the right to have their
names enrolled as voters by their respective Field-cornets,
32
498 SOUTH AFRICAN REPUBLIC [1890
het bewijs hebben geleverd dat zij het burger- en kiesrecht hebben
verkregen.
3. [Verplichtingen der Veldcornetten ten opzichte der kiezerslijs-
ten.]
4. Deze wet treedt in werking twee maanden na publicatie in de
Staatscourant.
Locale Wetten der Z.A. Rep. IV. 27.
No. 221. VOLKSRAADSBESLUIT, u AUGUSTUS 1890.
ART. I236. 1 De Raad vereenigde zich met Uitvoerende Raads-
besluit art. 502, dd. 9 Augustus 1890, en nam aldus het daarin vervatte
concept Volksraadsbesluit als het besluit van den Volksraad aan.
Gemelde Uitvoerende Raadsbesluit luidt :
Aan de orde : Bespreking over het wenschelijke, dat, vooral met
het oog op de tegenwoordige omstandigheden der Republiek, de
Regeering gemachtigd worde door den E.A. Volksraad, zaken,
waarvoor geen voorziening door den E.A. Volksraad is gemaakt en
die niet kunnen wachten tot de aanstaande zitting van den E.A.
Volksraad, zonder groote moeilijkheden te veroorzaken, te kunnen
afdoen.
Besloten aan den E.A. Volksraad voor te stellen, evenals in vorige
jaren, het navolgende besluit te passeeren :
De Volksraad besluit de Regeering te machtigen en op te dragen
voorzieningen en regelingen te maken ten aanzien van alle zaken,
after they shall have submitted the proofs of having obtained
burgher rights and the franchise.
3. [Duties of the Field-cornets with regard to voters’
lists.]
4. This law shall take effect two months after its publica-
tion in the Staatscourant.
No. 221. RESOLUTION OF THE VOLKSRAAD,
ii AUGUST 1890.
ART. I236. 1 The Raad approved of the Executive Council’s
resolution, art. 502, dated 9 Aug. 1890, and thus adopted the
draft resolution for the Volksraad contained therein as its own
resolution.
The said resolution of the Executive Council is as follows :
On the agenda : A discussion of the desirability, especially
with the present circumstances of the Republic in view, of
authorising the Government to dispose of matters for which
no provision has been made by the Volksraad and which
cannot stand over till the next session of the Volksraad without
grave difficulties being caused.
Decided to propose to the Volksraad that it shall, as in
previous years, pass the following resolution :
The Volksraad resolves to authorise and require the Govern-
ment .to make provisions and regulations with regard to all
1 Repealed by Procl. No. 34 of 1901.
1891] THE FRANCHISE 499
waarvoor door den Volksraad geen voorziening is gemaakt en die van
zoo dringenden aard zijn, dat zij niet kunnen blijven liggen tot de
navolgende zitting van den Volksraad, en, dat dergelijke regelingen
kracht van wet zullen hebben tot nadere beslissing daaromtrent van
den Volksraad.
De Regeering zal daarvan rapport doen in de eerstvolgende gewone
zitting.
Locale Wetten dev Z.A. Rep. IV. 79.
No. 222. EERSTE VOLKSRAADSBESLUIT, 31 JULI 1891.
ART. 1197. De Raad vereenigde zich bij acclamatie met het
commissierapport. 1
Gemeld rapport luidt :
Uw Commissie is van oordeel, dat de burgers der Republiek, die
in 1880 en 1881, te Paardekraal met opheffing der handen, zoo goed
als onder cede zich aan ons hebben verbonden en die met ons saam-
gestreden hebben gedurende den Vrijheidsoorlog, en die verder
gedurende den Vrijheidsoorlog zich bij ons aangesloten hebben, en
met ons tot het einde van den Vrijheidsoorlog gestreden hebben en
nog in de Republiek woonachtij zijn, daardoor van zelf en als door
een krachtige naturalisatie bij ons zijn ingelijfd, en beveelt den E.A.
matters for which no provision has been made by the Volks-
raad and which are of so pressing a nature that they cannot
stand over till the next session of the Volksraad, and that such
regulations shall have the force of law till the Volksraad shall
further decide thereon.
The Government shall deliver a report thereon in the next
ordinary session.
No. 222. RESOLUTION OF THE FIRST VOLKSRAAD,
31 JULY 1891.
ART. 1197. The Raad adopted the committee’s report x
with acclamation.
The said report is as follows :
Your committee is of opinion that the burghers of the
Republic who in 1880 and 1881 at Paardekraal, raising their
hands, as good as united themselves with us by oath, and who
fought by our sides during the War of Independence, and who
further combined with us during the War of Independence,
and who fought on our side till the end of the War of In-
dependence, and who are still resident in the Republic, have
in that way, of their own accord, and as it were by a mighty
deed of naturalisation, been incorporated with us ; and your
committee recommends to the First Volksraad that the said
1 A report of the Memorials Committee with reference to eight petitions
which requested that the franchise should be granted to persons who had
assisted in the War of Independence. This resolution was formally repealed
by Procl. No. 34 of 1901.
500 SOUTH AFRICAN REPUBLIC [1892
Eersten Volksraad aan de bedoelde burgers stemgerechtigd te
verklaren onder Wet No. 7, 1882.
Locale Wetten der Z.A. Rep. IV. 288.
No. 223. EERSTE VOLKSRAADSBESLUIT, 26 AUGUSTUS 1892.
ART. 1292. [Zij die zich voor het passeeren van Wet No. i, 1876,
in de Z.A. Republiek gevestigd hebben, zijn stemgerechtigde burgers.]
Locale Wetten der Z.A. Rep. IV. 630.
No. 224. TOT VERDUIDELIJKING EN WIJZIGING VAN
WET No. 13, 1891. [20 Sept. 1893.]
WET No. 14, 1893. L
REGELENDE HET ALGEMEEN KIESRECHT DER BURGERS VAN DE
ZUID-AFRIKAANSCHE REPUBLIEK.
(Goedgekeurd bij besluit van den Edelachtb. Volksraad onder art. 1341,
dd. 8 September 1893.)
NADEMAAL het wenschelijk is, dat het kiesrecht van de burgers der
Zuid-Afrikaansche Republiek nader bepaald en omschreven worde,
zi j het hierbi j vastgesteld als volgt :
ARTT. 1-3. [In hoofdzaak de bepalingen reeds neergelegd, vooral
die van Wet No. 5, 1890.]
4. De stemgerechtigde burgers, die het kiesrecht hebben verkregen,
burghers should be declared to possess the franchise in accord-
ance with Law No. 7, 1882.
No. 223. RESOLUTION OF THE FIRST VOLKSRAAD,
26 AUGUST 1892.
ART. 1292. [Those who have settled in the S.A. Republic
before the passing of Law No. i, 1876, shall be burghers pos-
sessing the franchise.]
No. 224. TO EXPLAIN AND MODIFY LAW No. 13, 1891.
[20 Sept. 1893.]
LAW No. 14, 1893. 1
REGULATING THE GENERAL FRANCHISE OF THE BURGHERS
OF THE SOUTH AFRICAN REPUBLIC.
(Approved of by resolution of the Volksraad under art. 1341,
dated 8 Sept. 1893.)
WHEREAS it is desirable that the franchise of the burghers
of the South African Republic should be further laid down
and described, be it hereby affirmed as follows :
ARTS. 1-3. [In the main the provisions already laid down
are repeated, in particular those of Law No. 5, 1890.]
4. The burghers possessing the franchise, who have obtained
* Repealed by Procl. No. 34 of 1901.
1893] FRANCHISE LAW 501
of v66r de inwerkingtreding van Wet No. 4, 1890, of daarna krachtens
het recht, voortvloeiende uit de geboorte binnen de Zuid-Afrikaansche
Republiek, hebben het recht hunne stem uit te brengen als volgt :
a. Voor het kiezen van een veldcornet der wijk, elk in zijn eigen
wijk.
b. Voor elke verkiezing, die het geheele district of de kiesaf-
deeling hunner inwoning betreft.
c. Voor elke verkiezing, die de geheele Zuid-Afrikaansche
Republiek betreft.
Uitbreiding van dit kiesrecht kan niet geschieden zonder dat een
voorstel daartoe een jaar lang gepubliceerd is geweest in de Staats-
courant en minstens twee derden van genoemde stemgerechtigde
burgers zich daarvoor hebben verklaard. 1
De stemgerechtigde burgers, die het kiesrecht hebben verkregen
krachtens naturalisatie na de inwerkingtreding van Wet Not 4, 1890,
hebben het recht hunne stem uit te brengen als volgt :
a. Voor het kiezen van een Veldcornet der wijk, elk in zijn
eigen wijk.
b. Voor een lid van den Tweeden Volksraad van het district
of de kiesafdeeling hunner inwoning.
c. Voor elke andere verkiezing, die het geheele district of de
the same either before the taking effect of Law No. 4, 1890, or
thereafter by virtue of the right arising from their having been
born within the South African Republic, shall have the right
to record their votes as follows :
a. In electing a Field-cornet of the ward, every burgher
in his own ward ;
b. At every election which concerns the whole district
or the electoral division in which they reside ;
c. At every election which concerns the whole of the
South African Republic.
No extension of this franchise can take place unless a
proposal to that effect has been published in the Staatscourant
for one year and at least two-thirds of the said burghers pos-
sessing the franchise have declared themselves in favour of
such extension. 1
The burghers possessing the franchise, who have obtained
the same by virtue of their naturalisation after the taking
effect of Law No. 4, 1890, shall have the right to record their
votes as follows :
a. In electing a Field-cornet of the ward, every burgher
in his own ward ;
b. For a member of the Second Volksraad for the district
or the electoral division in which they reside ;
c. At every other election which concerns the whole
district or the electoral division in which they
1 This is the highest degree of rigidity ever reached in the Transvaal C&n-
stitution. It will have been observed up to this date that a majority in the
Volksraad could generally accomplish any change. But cf. art. 42, p. 371, and
foot-note.
502 SOUTH AFRICAN REPUBLIC [1894
kiesafdeeling hunner inwoning betreft en waar zij
volgens wet toe gerechtigd zijn.
5-23. [Hoe men stemmen mag, enz.]
24. Alle wetten en bepalingen, in strijd met deze wijziging, worden
hiermede herroepen en deze wijziging zal dadelijk na publicatie kracht
van wet hebben. 1
Locale Wetten der Z.A . Rep. IV. 806.
No. 225. EERSTE VOLKSRAADSBESLUIT, 23 AUGUSTUS 1894.
ART. 1454.* De Eerste Volksraad, lettende op het schrijven van
de rechters van het Hooggerechtshof, dd. 7 Augustus jl., overgelegd
bij Regeeringsmissive thans aan de orde, overwegende, dat het wen-
schelijk is, gevolg te geven aan art. 115 der Grondwet, waarbij wordt
bepaald, dat de wet de wijze regelt, waarop bij wangedrag of onbe-
kwaamheid aan de rechters ontslag eervol of niet eervol zal worden
verleend, 3 overwegende, dat deze zaak geen uitstel lijden kan, daar reeds
te lang verzuimd is geworden uitvoering te geven aan bovengenoemd
voorschrift der Grondwet, overwegende, dat het ook wenschelijk en
noodzakelijk is dergelijke bepalingen te maken, met betrekking tot
den Staatspresident en leden van den Uitvoerenden Raad, besluit als
volgt :
ART. i. De Staatspresident, leden van den Uitvoerenden Raad
en die van het Hooggerechtshof staan terecht :
reside when they shall be legally entitled to vote
at such election.
5-23. [The manner of voting, etc.]
24. All laws and regulations which are in conflict with this
modified law are hereby repealed, and this modified law shall
have force of law immediately on its publication. 1
No. 225. RESOLUTION OF THE FIRST VOLKSRAAD ,
23 AUGUST 1894.
ART. 1454. 2 The First Volksraad, taking note of the letter
of the judges of the High Court of Justice, dated yth August,
transmitted by the Government’s communication now under
discussion ; considering that it is desirable to give effect to
art. 115 of the Grondwet whereby it is laid down that the law
shall regulate the manner in which in case of bad behaviour or
incompetence the judges may receive an honourable or dis-
honourable dismissal ; 3 considering that this matter can brook
no delay, as too long a delay has already been allowed in giving
effect to the provision of the Grondwet above mentioned ; that
it is also desirable and necessary to make similar rules with
regard to the State President and the members of the Executive
Council ; decides as follows :
ART. i. The State President, the members of the Executive
Council and those of the High Court of Justice shall be tried :
1 First published on 27 Sept. 1893.
8 Repealed by Procl. No. 34 of 1901. 3 Page 487.
1894] OFFICIALS 503
a. wegens misdaden en overtredingen voor den gewonen
rechter ;
b. wegens ambtsmisdrijven, wangedrag of onbekwaamheid voor
een bijzonder hof.
2. De aanklacht wegens ambtsmisdrijven, wangedrag of onbe-
kwaamheid geschiedt schriftelijk :
a. Voor den Staatspresident en de leden van den Uitvperenden
Raad aan den Voorzitter van den Eersten Raad, die de aan-
klacht voor den Eersten Volksraad brengt, en indien de
Eerste Volksraad overtuigd is, dat er redelijke gronden zijn
voor de aanklacht, deze in handen stelt van den Staats-
procureur en maatregelen neemt voor de aanstelling van
het bijzonder hof.
b. Voor de leden van het Hooggerechtshof bij de Regeering,
die, indien zij overtuigd is, dat er redelijke gronden zijn
voor de aanklacht, met advies en consent van den
Uitvoerenden Raad, het betrokken lid dadelijk in zijn
ambt schorst en daarvan schriftelijk kennis geeft aan
den Voorzitter van den Eersten Volksraad, welke
Volksraad maatregelen neemt voor de samenstelling
van het bijzondere hof.
a. for crimes and transgressions before the usual
judge ;
b. for offences committed in their official capacity, for
bad behaviour or for incompetence before a
special court. .
2. Indictments for offences committed in their official
capacity, for bad behaviour or for incompetence shall be made
in writing :
a. In the case of the State President and the members
of the Executive Council to the Chairman of the
First Raad, who shall bring the charge before the
First Volksraad, and if the First Volksraad shall
be convinced that there are reasonable grounds
for the charge it shall place the same in the hands
of the State Attorney and shall take steps for the
appointment of the special court.
b. In the case of members of the High Court of Justice
to the Government which, if convinced that
there are reasonable grounds for the charge,
shall with the advice and consent of the Exe-
cutive Council immediately suspend the member
concerned, and shall give written notice thereof
to the Chairman of the First Volksraad, which
Volksraad shall take steps for forming the special
court,
504 SOUTH AFRICAN REPUBLIC [1894
De manier van procedeeren bij het bijzonder hof is zoo na
mogelijk dezelfde als voor het Hooggerechtshof.
3. Wanneer de Staatspresident of een lid van den Uitvoerenden
Raad in staat van beschuldiging is gesteld, heeft dit onmiddellijk
schorsing in zijn ambt of waardigheid door den Eersten Volksraad
tengevolge. De Vice-President treedt, zoo noodig, op als Voorzitter
van den Uitvoerenden Raad in plaats van den Staatspresident.
4. Het bijzonder hof, in artt. i en 2 bepaald zal samengesteld zijn
uit vijf leden van den Eersten Volksraad, daartoe door dat lichaam
gekozen en uit hoogstens vier leden van het Hooggerechtshof door
dat hof daartoe aangewezen, uitgezonderd het lid of de leden, die in
staat van beschuldiging zijn gesteld.
5. Indien de gewone rechter, bij misdaden waaraan een onteerende
straf is verbonden, en het bijzondere hof bij ambtsmisdrijven, wange-
drag of onbekwaamheid, den in staat van beschuldiging zijnde, schuldig
bevindt, wordt deze, indien hij Staatspresident of lid van den Uitvoe-
renden Raad is, bij speciaal besluit van den Eersten Volksraad, zoo
noodig daartoe speciaal opgeroepen, uit zijn ambt of waardigheid ontzet.
De Regeering ontzet het veroordeelde lid van het Hooggerechtshof.
6. Dit besluit treedt in working dadelijk na publicatie in de
Staatscourant.
Locale Wetten der Z.A. Rep. V. 307.
The manner of proceeding in the special court
shall be as nearly as possible the same as in the
High Court of Justice.
3. When the State President or a member of the Executive
Council is placed under the necessity of having to answer a
charge, this shall immediately have the result that he shall be
suspended from his office or dignity by the First Volksraad.
The Vice-President shall then, if necessary, act as Chairman
of the Executive Council in stead of the State President.
4. The special court provided for in arts. I and 2 shall be
composed of five members of the First Volksraad chosen for
the purpose by that body, and not more than four members of
the High Court of Justice appointed for the purpose by that
court, not including the member or members placed under the
necessity of having to answer a charge.
5. If the ordinary judge shall find the accused guilty in the
case of crimes for which a dishonouring sentence has been
prescribed, or if the special court shall find the accused guilty
in the case of offences committed in an official capacity, bad
behaviour or incompetence, then the latter, if he be the State
President or a member of the Executive Council, shall be dis-
missed from his office or dignity by special resolution of the
First Volksraad, which shall be specially summoned for the
purpose if necessary.
The Government shall dismiss a member of the High Court
of Justice against whom sentence has been pronounced.
6. This resolution shall take effect immediately on its
publication in the Staatscourant,
1896] ALIENS 505
No. 226. EERSTE VOLKSRAADSBESLUIT, 25 JULI 1895.
[Toekenning van het voile stemrecht aan hen die opgekommandeerd
werden voor de oorlogen in Zoutpansberg en de expeditie naar Swazie-
land meemaakten.]
Locale Wetten der Z.A. Rep. VI. 280.
No. 227. DE GRONDWET DER ZUID-AFRIKAANSCHE
REPUBLIEK. [13 Juni 1896.]
WET No. 2, i896. 2
[Deze Grondwet verschilde van die van het jaar 1889 vooral daarin
dat het de belangrijke veranderingen insloot die sedert die tijd in de
constitutie gemaakt werden. De voornaamste van die veranderingen
zijn in de bovenstaande stukken vervat.]
Locale Wetten der Z.A. Rep. VII. 35.
No. 228. REGELENDE HET RECHT TOT UITZETTING VAN
VREEMDELINGEN. [8 Oct. 1896.]
WET No. 25, i896. 3
(Goedgekeurd en vastgesteld door den B.A . Eersten Volksraad, bij art.
1819 zijner notulen, dd. 28 September 1896.)
NADEMAAL art. 6 der Grondwet bepaalt dat het grondgebied der
No. 226. RESOLUTION OF THE FIRST VOLKSRAAD,
25 JULY 1895.*
[The full franchise is granted to those who were called up
for service in the war at Zoutpansberg and who took part in
the expedition to Swaziland.]
No. 227. THE GRONDWET OF THE SOUTH AFRICAN
REPUBLIC. [13 June 1896.]
LAW No. 2, 1896. 2
[This Grondwet differed from the one of 1889 mainly in
that it embodied the important constitutional changes indicated
by the laws passed after 1889, the chief of which are given
above.]
No. 228. REGULATING THE RIGHT TO EXPEL
FOREIGNERS. [8 Oct. 1896.]
LAW No. 25, 1896. 3
(Approved and confirmed by the First Volksraad by art. 1819 of
their minutes, dated 28 September 1896.)
WHEREAS art. 6 of the Grondwet lays it down that the
1 Repealed by Procl. No. 34 of 1901.
2 Formally repealed by Procl. No. 34 of 1901,
Repealed by Procl. No. 34 of 190?,
506 SOUTH AFRICAN REPUBLIC [1896
Republiek openstaat voor iederen vreemdeling, mits hij zich aan hare
wetten onderwerpt, en
Nademaal geene wettelijke bepalingen bestaan, het recht der
Regeering regelende om vreemdelingen, die zich niet aan de wetten der
Republiek onderwerpen of die gevaarlijk zijn voor de openbare rust en
orde over de grenzen te zetten, en
Nademaal deze wet geen uitstel kan lijden en ofschoon niet drie
maanden van te voren volgens de bepalingen van de Grondwet gepu-
bliceerd dadelijk in behandeling moet worden genomen,
Zoo wordt hiermede bepaald en vastgesteld als volgt :
i. De vreemdeling, die mondeling of in geschrifte opruit tot
ongehoorzaamheid aan of overtreding van de wet of eenige wettelijke
bepaling, of middelen van dwang en geweld aanwendt, waardoor de
openbare rust en orde in gevaar gebracht wordt of kan worden, of
anderszins door zijne handelingen gevaarlijk is voor de openbare rust
en orde, kan op last van ZHEd. den Staats president, handelende
met advies en consent van den Uitvoerenden Raad, na het advies van
den Staatsprocureur te hebben gehoord, worden uitgezet.
De vreemdeling, wiens uitzetting door ZHEd. den Staatspresident
is bevolen, is verplicht binnen een tijd in het bevel te bepalen na
bekomen kennisgeving den Staat te verlaten.
Gedurende dien tijd kan hij gebruik maken van de bevoegdheid bij
art. 5 verleend en inmiddels in verzekerde bewaring gesteld worden.
Wanneer hij van die bevoegdheid geen gebruik maakt of het
Hooggerechtshof zijne bezwaren ongegrond bevonden heeft, wordt
territory of the Republic stands open for every foreigner,
provided he submits to the laws ; and
Whereas there exist no legal regulations specifying the
right of the Government to take foreigners across the frontiers
if they do not submit to the laws of the Republic or if they are
dangerous to the public peace and order ; and
Whereas this law can brook no delay, and must be dealt
with immediately although not published three months in
advance according to the provisions of the Grondwet ;
Now therefore it is hereby laid down and affirmed as follows :
i. Any foreigner who by word or in writing incites any
person to disobey the law or any lawful regulation, or who
employs any forceful means whereby the public peace and
order are or may be endangered, or who in any other way
by reason of his actions is a danger to the public peace and
order, may be expelled by command of the State President
acting with the advice and consent of the Executive Council
after having obtained the opinion of the State Attorney.
. Any foreigner whose expulsion has been ordered by the
State President shall be bound to depart from the State within
a period to be specified in the order on receipt of a notification.
During that time he may make use of the privilege allowed
in art. 5, and shall in the meantime be placed in safe custody.
If he shall not avail himself of that privilege, or if the High
Court of Justice shall have found his objections groundless,
1896] ALIENS 507
aan den last tot uitzetting onmiddellijk gevolg gegeven. Indien wordt
beslist dat hij een burger is dan valt hij onder art. 2.
2. ZHEd. de Staatspresident, handelende met advies en consent
van den Uitvoerenden Raad en na net advies van den Staatsprocureur
te hebben gehoord, heeft de bevoegdheid aan vreemdelingen en
burgers, die mondeling of in geschrifte opruien tot ongehoorzaamheid
aan, of overtreding van de wet of eenige wettelijke bepaling, of
middelen van dwang en geweld aanwenden, waardoor de openbare rust
en orde in gevaar gebracht wordt of kan worden, of anderszins door
hunne handelwijze gevaarlijk zijn voor de openbare rust en orde, eene
bepaalde plaats of plek binnen de Republiek tot verblijf aan [te] wijzen
en hun het verblijf op bepaalde plaatsen of plekken in de Republiek
[te] ontzeggen en hen alzoo naar, in of uit zekere plaatsen of plekken
te verbannen.
3. Burgers der Z.A. Republiek kunnen niet over de grenzen der
Republiek worden verwijderd.
4. [De Staatspresident doet verslag aan den Eersten Volksraad.]
5. [Alle personen die beweren burgers te zijn kunnen zich op dien
grond wenden tot het Hooggerechtshof.]
6. [Strafbepaling voor vreemdelingen die niet handelen overeen-
komstig bevel. Strafbepaling voor vreemdelingen die na hun verwij-
dering terugkeeren zonder verlof.]
7. [Strafbepaling voor burgers die niet handelen overeenkomstig
bevel.]
then the order of expulsion shall immediately be executed.
If it be decided that he is a burgher then he falls under art. 2.
2. The State President, acting with the advice and consent
of the Executive Council, and after having obtained the opinion
of the State Attorney, shall have authority to point out any
definite place or spot of residence within the Republic, and
to forbid any definite place or places of residence, to foreigners
and burghers who verbally or in writing incite to disobedience
to or transgression of the law or any lawful regulation, or
who employ forceful and violent means whereby the public
peace and order are or may be endangered, or who in any
other way by reason of their behaviour are a danger to the
public peace and order, and shall thus transfer them to, into
or from certain places or spots.
3. It shall not be permissible to remove burghers of the
S.A. Republic across the frontiers of the Republic.
4. [The State President shall report to the First Volksraad.]
5. [All persons who claim to be burghers may apply to the
High Court of Justice on that ground.]
6. [Punishment prescribed for foreigners who do not act
according to orders. Punishment of foreigners who after their
removal shall return without permission.]
7. [Punishment of burghers who do not act according to
orders.]
508 SOUTH AFRICAN REPUBLIC [1897
8. [Opname van een signalement van een vreem deling die over de
grenzen verwijderd wordt.]
9. Deze wet treedt in werking, dadelijk na publicatie in de Staats-
courant.
Locale Wetten der Z.A. Rep. VII. 242.
No. 229. EERSTE VOLKSRAADSBESLUIT, 17 AUGUSTUS 1896.
ART. 1 205.* [Vol stemrecht aan hen die opgetrokken zijn tegen
Jameson.]
Locale Wetten der Z.A. Rep. VII. 337.
No. 230. EERSTE VOLKSRAADSBESLUIT, 4 SEPTEMBER 1896.
ART. I3S8. 1 [De posten van Superintendent van Naturellen en
Commandant-Generaal van elkaar gescheiden.]
Locale Wetten der Z.A. Rep. VII. 342.
No. 231. DE WETGEVENDE TEGEN DE RECHTERLIJKE
MACHT.
WET No. i, I897. 1 [i Maart 1897.]
(Goedgekeurd bij besluit van den Edel Achtb. Eersten Volksraad, art. 451,
dd. 26 Februari 1897.)
Overwegende dat van af de stichting dezer Republiek de Besluiten
van den Volksraad als Wet zijn erkend en geeerbiedigd en de Rechter-
8. [Taking down the description of a foreigner who is being
removed across the frontiers.]
9. This law shall take effect immediately on its publication
in the Staatscourant.
No. 229. RESOLUTION OF THE FIRST VOLKSRAAD,
17 AUGUST 1896.
ART. 1205. x [The full franchise granted to those who fought
against Jameson.]
No. 230. RESOLUTION OF THE FIRST VOLKSRAAD,
4 SEPTEMBER 1896.
ART. 1358. * [The offices of Superintendent of Natives and
Commandant-General are separated from each other.]
No. 231. THE LEGISLATURE v. THE JUDICATURE.
LAW No. i, 1897. * [i March 1897.]
(Approved of by resolution of the First Volksraad, art. 451,
dated 26 Feb. 1897.)
Considering that since the founding of this Republic the
Resolutions of the Volksraad have been acknowledged as law
1 Repealed by Procl. No. 34 of 1901.
1897] SUPREMACY OF THE VOLKSRAAD 509
lijke Macht geen bevoegdheid bezat de Wetten en Besluiten door den
Volksraad gemaakt op zij te zetten ;
Overwegende dat zulks was de wil van het Volk der Zuid-
Afrikaansche Republiek, zooals neergelegd in de Grondwet van 1858
en gehandhaafd in de samengestelde Grondwet van 1896 en in de
Bijlage No. 2 van die Grondwet dd. 19 September 1859, die o.a.
bepaalt :
[Artt. 2 en 3 van genoemde Bijlage 1 worden hier herhaald.]
Overwegende dat in de Grondwet van 1858 volgens de eeden, die
daarin zijn opgenomen en voorgeschreven respectivelijk voor de leden
van den Volksraad en voor de leden van de Rechterlijke Macht, het
zoogenoemd toetsingsrecht niet toekomt aan de Rechterlijke Macht,
die volgens hun eed recht moeten spreken volgens de landswetten ;
Overwegende dat ook het Hoog Gerechtshof van dezen Staat
herhaaldelijk heeft beslist, dat Volksraadsbesluiten wel kracht van
Wet hebben en dat de Rechterlijke Macht geen zoogenaamd toet-
singsrecht bezit ;
Overwegende dat de locale Wetgeving der Republiek, om de redenen
hierboven uiteengezet, voor een groot deel berust op Volksraads-
besluiten ;
Overwegende dat Wet No. 4, 1890, na behoorlijk gepubliceerd te
zijn geweest, door den Volksraad na behandeling niet dadelijk in
werking is gesteld, maar nogmaals speciaal voor het Volk is gelegd, en
and respected, and that the Judicial Power was not competent
to set aside the Laws and Resolutions passed by the Volksraad ;
Considering that this was the will of the People of the
South African Republic as laid down in the Grondwet of 1858
and maintained in the composed Grondwet of 1896, and in
Addendum No. 2 of that Grondwet, dated 19 September 1859,
which amongst other things declares :
[Arts. 2 and 3 of the said Addendum 1 are repeated here.]
Considering that in the Grondwet of 1858, according to the
oaths therein contained and prescribed respectively for the
members of the Volksraad and the members of the Judicial
Power, the so-called right of testing is not given to the Judicial
Power, whose members must, in accordance with their oath,
pronounce judgment according to the laws of the country ;
Considering that the High Court of Justice of this State
has itself repeatedly decided that resolutions of the Volksraad
do indeed have the force of law, and that the Judicial Power
possesses no so-called right of testing ;
Considering that the local legislation of the Republic, for
the reasons set forth above, is based to a great extent on
resolutions of the Volksraad ;
Considering that Law No. 4, 1890, after having been duly
published, was not immediately declared of effect by the
Volksraad, but was again specially laid before the People, and
1 Vide p. 418.
510 SOUTH AFRICAN REPUBLIC [1897
het Volk zich met die Wet heeft vereenigd, nadat dezelve drie malen
achtereen gepubliceerd is geworden ;
Overwegende dat art. 32 van die Wet (welk artikel als art. 80 nu is
overgenomen in de Grondwet van 1896) dien toestand, als door de
Grondwet van 1858 gewild en door het Hoog Gerechtshof voor juist
verklaard, heeft bestendigd, en bepaalt, dat de wettelijke kracht van
Wetten en Besluiten door den Staatspresident in de Staatscourant ge-
publiceerd niet kan worden betwist dus ook niet door de Rechterlijke
Macht terwijl alleen het Volk de macht heeft zich tegen eene Wet
of Besluit uit te spreken ;
En verder overwegende, dat nu kort geleden eene meerderheid in
het Hoog Gerechtshof, namelijk twee rechters, heeft beslist, dat de
vroegere uitspraken van het Hoog Gerechtshof in deze onjuist waren en
heeft neergelegd, dat Volksraadsbesluiten geen kracht van Wet hebben
en dat het Hoog Gerechtshof tevens de bevoegdheid bezit te weigeren
eene Wet toe te passen, wanneer het van oordeel is, dat die Wet, naar
vorm of inhoud, strijdt met de Grondwet van 1858 ;
Overwegende dat door die beslissing de rechtszekerheid in dezen
Staat grootelijks is benadeeld doordien, zooals gezegd, het grootste
deel onzer Wetgeving op Volksraadsbesluiten berust en verscheidene
Wetten en Volksraadsbesluiten juist zijn bedoeld als veranderingen van
de Grondwet ;
Overwegende dat de Eerste Volksraad niet lijdelijk mag toezien,
that the People have approved of that Law after the same
had been published three times in succession ;
Considering that art. 32 of the said Law (which article has
been embodied in the Grondwet of 1896 as art. 80) has con-
firmed the position intended by the Grondwet of 1858, and
declared valid by the High Court of Justice, and has affirmed
that the legal force of Laws and Resolutions published in the
Staatscourant by the State President can not be disputed,
and therefore also that it is not competent for the Judicial
Power to dispute the same, while the People alone have the
power to declare themselves against any Law or Resolution ;
And considering further that not long ago a majority of
the High Court of Justice, in the persons of two judges, have
decided that the previous judgments of the High Court of
Justice in this matter were invalid, and have laid it down
that resolutions of the Volksraad are not of legal force, and
that moreover it is competent for the High Court of Justice
to refuse to apply a Law when it is of opinion that the form
or substance of such Law is in conflict with the Grondwet
of 1858 ;
Considering that by that decision the validity of the laws
of this State has been rendered very doubtful, because, as
has been said, the greater part of our legislation is based on
resolutions of the Volksraad, and because several laws and
resolutions of the Volksraad have had for their express object
alterations in the Grondwet ;
Considering that the First Volksraad may not remain
1897] SUPREMACY OF THE VOLKSRAAD 511
wanneer het Hoog Gerechtshof weigert recht te spreken volgens ‘s lands
wetten en het zij n plicht is het publiek te beschermen in overeenstem-
ming met den wil van het Volk ;
Overwegende dat art. 86 1 van de Grondwet van 1896 over het
bijeenroepen van een Bijzonder Hof in deze zaak niet van toepassing
is ; en
Ten slotte overwegende dat deze Wet, hoewel niet in termen van
art. 12 der Grondwet drie maanden van te voren gepubliceerd, dadeljk
in behandeling moet worden genomen, aangezien zij geen uitstel kan
lijden ;
Wordt hierbij besloten deze Wet dadelijk in behandeling te nemen,
niettegenstaande zij geen drie maanden van te voren is gepubliceerd
geweest, aangezien zij geen uitstel kan lijden ;
En wordt hierbij vastgesteld en bepaald als volgt :
ART. i . Zoolang het Volk niet duidelijk ten genoege van den Eersten
Volksraad heeft te kennen gegeven, dat het den bestaanden toestand
wenscht te veranderen, moeten de bestaande en nog te maken Wetten
en Volksraadsbesluiten door de Rechterlijke Macht worden erkend
en geeerbiedigd in overeenstemming met art. 80 der Grondwet van 1896
en heeft de Rechterlijke Macht niet de bevoegdheid te weigeren een
Wet of Volksraadsbesluit toe te passen, omdat die Wet of dat besluit
naar het oordeel van den rechter, naar vorm of inhoud, strijdt met de
Grondwet ; m.a.w. de Rechterlijke Macht zal niet de bevoegdheid
passive when the High Court of Justice refuses to pronounce
judgment according to the Laws of the country, and that it
is their duty to protect the public in accordance with the
will of the People ;
Considering that art. 86 l of the Grondwet of 1896 about
the summoning of a Special Court does not apply to the
present matter ; and
Finally, considering that this Law, although not first
published for three months in terms of art. 12 of the Grondwet,
must be dealt with immediately as it can brook no delay ;
Therefore it is hereby resolved to proceed at once to deal
with this Law notwithstanding the fact that it has not been
published beforehand for three months, as it can brook no
delay ;
And it is hereby affirmed and laid down as follows :
ART. i. So long as the People have not signified, plainly
and to the satisfaction of the First Volksraad, their wish that
the existing position shall be changed, it shall be the duty of
the Judicial Power to acknowledge and respect the Laws and
Resolutions of the Volksraad now existing or to be passed
hereafter, in accordance with art. 80 of the Grondwet of 1896 ;
and it is not competent for the Judicial Power to refuse to
apply a Law or a Resolution of the Volksraad on the ground
that such Law or Resolution is, as regards its form or substance,
in the opinion of the Judge, in conflict with the Grondwet ;
1 This article was a repetition of arts. 1-5 of the resolution of the First
Volksraad dated 23 Aug. 1894. Vide above, p. 502.
512 SOUTH AFRICAN REPUBLIC [1897
hebben en heeft die bevoegdheid ook nooit gehad, noch bij de Grond-
wet, noch bij eenige andere wet, zich het zoogenoemd toetsingsrecht
aan te matigen.
2. De Rechters, de Landdrosten en andere leden van de Rechterlijke
Macht zullen in het vervolg v66r het aanvaarden hunner betrekking
den volgenden eed afleggen :
‘-Ik beloof en zweer plechtig trouw aan het volk en de wetten
dezer Republiek, in mijne betrekking en ambt recht-
vaardig, billijk, zonder aanzien des persoons, overeen-
komstig de wetten en Volksraadsbesluiten en naar
mijn beste kennis en geweten te zullen handelen ; mij
geen zoogenoemd toetsignsrecht te zullen aanmatigen ; ”
[enz.]
De leden van het Hoog Gerechtshof en Landdrosten leggen den eed
af in handen van den Staatspresident en leden van den Uitvoerenden
Raad.
3. De Rechter, die niet handelt overeenkomstig art. i dezer wet,
zal geacht worden zich te hebben schuldig gemaakt aan een ambts-
misdrijf, als bedoeld in art. 86 der Grondwet van 1896.
4. ZHEd. de Staatspresident wordt hierbij gemachtigd de tegen-
woordige leden van de Rechterlijke Macht te vragen of te doen vragen
of zij het beschouwen te zijn oyereenkomstig hun eed en hun plicht
recht te spreken volgens de bestaande en later te maken Wetten en
in other words, it is not competent, nor has it ever been com-
petent, for the Judicial Power, either by the Grondwet or by
any other law, to arrogate to itself the so-called right of testing.
2. The Judges, the Landdrosts and other members of the
Judicial Power shall in future, before entering on their office,
take the following oath :
” I promise and swear solemnly to be true to the people
and the Laws of this Republic, to act in my office
and official capacity in a manner just, fair and
without respect of persons, in accordance with
the Laws and Resolutions of the Volksraad, to
the best of my knowledge and according to the
dictates of my conscience ; not to arrogate to
myself any so-called right of testing ; ” [etc.]
The members of the High Court of Justice and the Land-
drosts shall take the oath before the State President and the
members of the Executive Council.
3. Any judge who does not act in accordance with the
provisions of art. i of this law shall be considered to be guilty
of an offence in his official capacity as mentioned in art. 86
of the Grondwet of 1896.
4. The State President is hereby authorised to ask the
present members of the Judicial Power, or to cause them to
be asked, whether they consider it compatible with their oath
and their duty to pronounce judgment in accordance with
the Laws and Resolutions of the Volksraad now in force or
hereafter to be passed, and not to arrogate to themselves the
1897] SUPREMACY OF THE VOLKSRAAD 513
Volksraadsbesluiten en zich het zoogenoemd toetsingsrecht niet aan
te matigen en verder wordt ZHEd. opgedragen die leden, waarvan
ZHEd. of een ontkennend of een zijns inziens onvoldoend of binnen
den gestelden tijd in het geheel geen antwoord ontvangt, uit hunne
betrekking te ontslaan.
5. Onder Volksraadsbesluiten worden in deze Wet verstaan zoowel
Besluiten van den ouden Volksraad als Besluiten van den Eersten
Volksraad en ook de Besluiten van den Tweeden Volksraad, die volgens
art. 31, Wet No. 4, 1890,* thans art. 79 der Grondwet van 1896, van
kracht zijn. Onder ‘t Volk zullen worden verstaan de volstemge-
rechtigde burgers der Zuid-Afr. Republiek.
6. Deze Wet zal niet aantasten de rechten eventueel door von-
nissen van het Hoog Gerechtshof v66r deze Wet verkregen.
7. Deze Wet zal in werking treden dadelijk na publicatie in de
Staatscourant.
Locale Wetten der Z.A. Rep. VIII. 5.
No. 232. EERSTE VOLKSRAADSBESLUIT, 22 JULI 1 897.*
[Geen ambtenaar mag zich verkiesbaar stellen voor de betrekking
van Staatspresident.]
Locale Wetten der Z.A. Rep. VIII. 170.
so-called right of testing ; and the State President is likewise
instructed to dismiss from office any member from whom he
may receive an answer in the negative, or one which in his
opinion is not satisfactory, or no answer at all within the
period specified.
5. By the term, “resolutions of the Volksraad,” shall be
understood, for the purposes of this Law, resolutions of the
old Volksraad as well as resolutions of the First Volksraad and
resolutions of the Second Volksraad which according to art. 31
of Law No. 4, iSgo, 1 now art. 79 of the Grondwet of 1896, have
the force of law. By the term, ” the People,” shall be under-
stood the burghers of the South African Republic possessing
the full franchise.
6. This Law shall not interfere with rights procured through
judgments of the High Court of Justice prior to the passing of
this Law.
7. This Law shall take effect immediately on its publica-
tion in the Staatscourant.
No. 232. RESOLUTION OF THE FIRST VOLKSRAAD,
22 JULY 1897.*
[No official may accept nomination for the post of State
President.]
1 Vide above, p. 494. 2 Repealed by Procl. No. 34 of 1901.
33
514 SOUTH AFRICAN REPUBLIC [1897
No. 233. EERSTE VOLKSRAADSBESLUIT, 27 AUG. 1897.
ART. 98 1. 1 [Het volgend commissie-rapport wordt goedge-
keurd :]
De Commissie [geeft] uwe Vergadering in overweging, of het niet
wenschelijk zou wezen, dat de Superintendent van Naturellenzaken
alleen hoofd-ambtenaar en geen lid van den Uitvoerenden Raad zal
zijn, omreden de Commissie het niet raadzaam acht, dat een amb-
tenaar die voor zijn leven is aangesteld als zoodanig als lid van den
Uitvoerenden Raad zittiag neemt.
Locale Wetten der Z.A. Rep. VIII. 173.
No. 233. RESOLUTION OF THE FIRST VOLKSRAAD,
27 AUGUST 1897.
ART. 981. * [The following report of the Committee is
adopted :]
The Committee submits for the consideration of your
Assembly the question whether it would not be desirable that
the Superintendent of Native Affairs shall be merely a chief
official and not a member of the Executive Council as well ;
for the Committee does not deem it advisable that an official
who is appointed for life shall be an ex officio member of the
Executive Council.
No. 234. ANNEXATION OF THE SOUTH AFRICAN
REPUBLIC, [i Sept. 1900.]
PROCLAMATION No. 15 OF 1900.
WHEREAS certain Territories in South Africa, hitherto
known as the South African Republic, have been conquered
by Her Majesty’s Forces, and it has seemed expedient to Her
Majesty that the said Territories should be annexed to, and
should henceforth form part of Her Majesty’s Dominions, and
that I should provisionally and until Her Majesty’s pleasure
is more fully known, be appointed Administrator of the said
Territories, with power to take all such measures, and to make
and enforce such Laws as I may deem necessary for the peace,
order, and good government of the said Territories.
Now, therefore, I, Frederick Sleigh, Baron Roberts of
Kandahar and Waterford, K.P., [etc.] by Her Majesty’s Com-
mand, and in virtue of the power and authority conferred on
me in that behalf by Her Majesty’s Royal Commission, dated
the fourth day of July, nineteen hundred, in accordance with
Her Majesty’s instructions thereby and otherwise signified to
me, from and after the publication hereof, do proclaim that
the Territories known as the South African Republic are annexed
to and form part of Her Majesty’s Dominions, and that pro-
1 Repealed by Procl. No. 34 of 1901.
THE ANNEXATION 515
visionally, and until Her Majesty’s pleasure is fully declared,
the said Territories will be administered by me with such
powers as aforesaid. Her Majesty is pleased to direct that the
new Territories shall henceforth be known as The Transvaal.
Statute Law of the Transvaal, 1900-6, II. 441.
VEREENIGING PEACE TREATY, 3isx MAY 1902.
[See No. 173.]
THE TRANSVAAL: ADMINISTRATION OF JUSTICE,
1902-1910.
[District Courts of Resident Magistrates on the model of the Cape
Courts were established by Proclamation No. 21 of 1902 (10 April), but
with greater powers. Their jurisdiction in civil cases extended to
those founded upon liquid documents to an amount of 500, to illiquid
cases in which the amount claimed did not exceed ^250, and to other
cases where the sum or matter in dispute did not exceed 100. Their
criminal jurisdiction included all crimes and offences not punishable
by death, transportation or banishment from the Colony. They
could sentence to fines not exceeding ^75, or imprisonment for a period
not exceeding six months, or whipping not exceeding twenty-five
lashes. Several laws of a later date modified the provisions of this
Ordinance. Among those to be noted are Ord. No. 12 of 1904, Act
No. 1 8 of 1907, and Act No. 30 of 1908.
Proclamation No. 14 of 1902 (10 April) established a ‘ l High Court
of the Transvaal ” to consist of at least four judges with the usual
jurisdiction and powers. The judges held office during good behaviour
and could be dismissed by the Crown, or by the Governor subject to the
Crown’s approval, on misconduct being proved. The High Court could
review sentences of the inferior courts, and in certain cases appeals were
allowed from its decisions to the Privy Council. The Roman-Dutch
Law was retained. The same Proclamation set up a superior court
for Johannesburg called the “Witwatersrand District Court,” in which
there sat one judge with the same jurisdiction and powers as those
exercised by the High Court except in matters of appeal. Ordinance
No. 2 of 1902 (4 July) changed the names of these two courts respec-
tively to !< Supreme Court of the Transvaal,” and ‘-Witwatersrand
High Court.” Ordinance No. 38 of 1902 (21 Nov.) provided for the
withdrawal of Martial Law from the Colony. Circuit Courts were pro-
vided for by Ordinance No. 10 of 1903 (27 Feb.). Like the Rand High
Court they had no appellate jurisdiction. Otherwise they exercised
the same authority as the Supreme Court. Like the Rand High
Court they exercised some of their powers only subject to appeal to
the Supreme Court. Ordinance No. 31 of 1904 provided that one
judge could constitute a court, to be styled a Divisional Court, if
parties in a case consented to this, or if by order of the Supreme Court
any action was remitted to be so heard. The chief Ordinance dealing
with juries is No. 10 of 1902..
516 THE TRANSVAAL [1902-10
THE TRANSVAAL : MUNICIPAL GOVERNMENT,
1902-1910.
[Ordinance No. 38 of 1903 provided for the election of members
of councils of municipalities then existing or still to be established.
Electors were white male or female British subjects of 21 years of age
and older, who were owners of rateable property valued at ^100
or occupiers of property valued at ^300 or of the annual value of
^24. Male voters could be elected councillors to hold office for
three years. The Councillors were to elect one of their number to
be a mayor, to whom allowances could be made for expenditure
incurred. The duties and functions of the councils were defined by
the next important ordinance, No. 58 of 1903 ; and several other
important laws followed. Series of special provisions were enacted
for Pretoria and Johannesburg from 1902 onwards.]
THE INTER-COLONIAL COUNCIL.
[By Order in Council dated 2oth May 1903, an Inter-Colonial
Council, common to the Orange River Colony and to the Transvaal,
was established. 1 The object of this body was to avoid a division
of the Central South African Railway system which extended over
both Colonies ; but its functions included also the control of expendi-
ture connected with the South African Constabulary and other
matters. The arrangement was rendered liable to termination on
the motion of either Colony, after six months’ notice, subsequent to
the establishment of responsible government -in both Colonies. Such
notice was given by both governments early in December 1907, and
the Council ceased to exist on 2nd June 1908. Thereupon the C.S.A.
Railways were worked as a joint system.]
* [Cd. 1641.]
CHAPTER V.
THE UNION OF SOUTH AFRICA.
No. 235. SOUTH AFRICA ACT, 1909.
[9 EDW. 7, CH. 9.]
[This Act was passed through both Houses of the Imperial Parlia-
ment exactly as it was forwarded after the South African Convention
was held. It was assented to by King Edward VII. on aoth Septem-
ber 1909 ; and a Royal Proclamation of the 2nd December 1909
declared the date of the establishment of Union to be the 3ist May
1910.]
ARRANGEMENT OF SECTIONS.
I. PRELIMINARY.
Section.
1. Short title.
2. Definitions.
3. Application of Act to King’s successors.
II. THE UNION.
4. Proclamation of Union.
5. Commencement of Act.
6. Incorporation of Colonies into the Union.
7. Application of Colonial Boundaries Act, etc.
III. EXECUTIVE GOVERNMENT.
8. Executive power.
9. Governor-General.
10. Salary of Governor-General.
1 1. Application of Act to Governor-General.
12. Executive Council.
13. Meaning of Governor- General in Council.
14. Appointment of Ministers.
15. Appointment and removal of officers.
16. Transfer of executive powers to Governor- General in Council.
17. Command of naval and military forces.
1 8. Seat of Government.
IV. PARLIAMENT.
19. Legislative power.
20. Sessions of Parliament.
21. Summoning of first Parliament.
22. Annual session of Parliament.
23. Seat of Legislature.
517
5i8 THE UNION
Senate.
Section.
24. Original constitution of Senate.
25. Subsequent constitution of Senate.
26. Qualifications of senators.
27. Appointment and tenure of office of President.
28. Deputy President.
29. Resignation of senators.
30. Quorum.
31. Voting in the Senate.
House of Assembly.
32. Constitution of House of Assembly.
33. Original number of members.
34. Increase of number of members.
35. Qualifications of voters.
36. Application of existing qualifications.
37. Elections.
38. Commission for delimitation of electoral divisions.
39. Electoral divisions.
40. Method of dividing provinces into electoral divisions.
41. Alteration of electoral divisions.
42. Powers and duties of commission for delimiting electoral
divisions.
43. Date from which alteration of electoral divisions to take
effect.
44. Qualifications of members of House of Assembly.
45. Duration.
46. Appointment and tenure of office of Speaker.
47. Deputy Speaker.
48. Resignation of members.
49. Quorum.
50. Voting in House of Assembly.
Both Houses of Parliament.
5 1. Oath or affirmation of allegiance.
52. Member of either House disqualified for being member of the
other House.
53. Disqualifications for being a member of either House.
54. Vacation of seats.
55. Penalty for sitting or voting when disqualified.
56. Allowances of members.
57. Privileges of Houses of Parliament.
58. Rules of procedure.
Powers of Parliament.
59. Powers of Parliament.
60. Money Bills.
61. Appropriation Bills.
62. Recommendation of money votes.
63. Disagreements between the two Houses.
64. Royal Assent to Bills.
65. Disallowance of Bills.
66. Reservation of Bills.
67. Signature and enrolment of Acts.
SOUTH AFRICA ACT, 1909 519
V. THE PROVINCES*
A dministrators.
Section.
68. Appointment and tenure of office of provincial administrators.
69. Salaries of administrators.
Provincial Councils.
70. Constitution of provincial councils.
71. Qualification of provincial councillors.
72. Application of sections S3 to 55 to provincial councillors.
73. Tenure of office by provincial councillors.
74. Sessions of provincial councils.
75. Chairman of provincial councils.
76. Allowances of provincial councillors.
77. Freedom of speech in provincial councils.
Executive Committees.
78. Provincial executive committees.
79. Right of administrator, etc., to take part in proceedings of
provincial council.
80. Powers of provincial executive committees.
8 1. Transfer of powers to provincial executive committees.
82. Voting in executive committees.
83. Tenure of office by members of executive committees.
84. Power of administrator to act on behalf of Governor-General
in Council.
Powers of Provincial Councils.
85. Powers of provincial councils.
86. Effect of provincial ordinances.
87. Recommendations to Parliament.
88. Power to deal with matters proper to be dealt with by private
Bill legislation.
89. Constitution of provincial revenue fund.
90. Assent to provincial ordinances.
91. Effect and enrolment of ordinances.
Miscellaneous.
92. Audit of provincial accounts.
93. Continuation of powers of divisional and municipal councils.
94. Seats of Provincial Government.
VI. THE SUPREME COURT OF SOUTH AFRICA.
95. Constitution of Supreme Court.
96. Appellate Division of Supreme Court.
97. Filling of temporary vacancies in Appellate Division.
98. Constitution of provincial and local divisions of Supreme
Court.
99. Continuation in office of existing judges.
100. Appointment and remuneration of judges.
101. Tenure of office by judges.
102. Reduction in number of judges.
103. Appeals to Appellate Division. .^
520 THE UNION
Section.
104. Existing appeals.
105. Appeals from inferior courts to provincial divisions.
1 06. Provisions as to appeals to the King in Council.
107. Rules of procedure in Appellate Division.
1 08. Rules of procedure in provincial and local divisions.
109. Place of sittings of Appellate Division.
1 10. Quorum for hearing appeals.
in. Jurisdiction of Appellate Division.
112. Execution of processes of provincial divisions.
113. Transfer of suits from one provincial or local division to
another.
1 14. Registrar and officers of Appellate Division.
115. Advocates and attorneys.
1 1 6. Pending suits.
VII. FINANCE AND RAILWAYS.
117. Constitution of Consolidated Revenue Fund and Railway and
Harbour Fund.
1 1 8. Commission of inquiry into financial relations between Union
and provinces.
1 19. Security for existing public debts.
1 20. Requirements for withdrawal of money from funds.
121. Transfer of colonial property to the Union.
122. Crown lands, etc.
123. Mines and minerals.
1 24. Assumption by Union of colonial debts.
125. Ports, harbours, and railways.
1 26. Constitution of Harbour and Railway Board.
127. Administration of railways, ports, and harbours.
128. Establishment of fund for maintaining uniformity of railway
rates.
1 29. Management of railway and harbour balances.
1 30. Construction of harbour and railway works.
131. Making good of deficiencies in Railway Fund in certain cases.
132. Controller and Auditor-General.
133. Compensation of colonial capitals for diminution of prosperity.
VIII. GENERAL.
134. Method of voting for senators, etc.
135. Continuation of existing colonial laws.
1 36. Free trade throughout Union.
137. Equality of English and Dutch languages.
138. Naturalisation.
1 39. Administration of justice.
140. Existing officers.
141. Reorganisation of public departments.
142. Public service commission.
143. Pensions of existing officers.
144. Tenure of office of existing officers.
145. Existing officers not to be dismissed for ignorance of English
or Dutch.
146. Compensation to existing officers who are not retained.
147. Administration of native affairs, etc.
148. Devolution on Union of rights and obligations under con-
ventions.
SOUTH AFRICA ACT, 1909 521
Section. ^- NEW PROVINCES AND TERRITORIES.
149. Alteration of boundaries of provinces.
1 50. Power to admit into Union territories administered by British
South Africa Company.
151. Power to transfer to Union government of native territories.
X. AMENDMENT OF ACT.
152. Amendment of Act.
SCHEDULE.
AN ACT TO CONSTITUTE THE UNION OF
SOUTH AFRICA.
WHEREAS it is desirable for the welfare and future progress
of South Africa that the several British Colonies therein
should be united under one Government in a legislative union
under the Crown of Great Britain and Ireland :
And whereas it is expedient to make provision for the
union of the Colonies of the Cape of Good Hope, Natal, the
Transvaal, and the Orange River Colony on terms and condi-
tions to which they have agreed by resolution of their respective
Parliaments, and to define the executive, legislative, and
judicial powers to be exercised in the government of the
Union :
And whereas it is expedient to make provision for the
establishment of provinces with powers of legislation and
administration in local matters and in such other matters
as may be specially reserved for provincial legislation and
administration :
And whereas it is expedient to provide for the eventual
admission into the Union or transfer to the -Union of such
parts of South Africa as are not originally included therein :
Be it therefore enacted by the King’s most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament assembled,
and by the authority of the same, as follows :
I. PRELIMINARY.
1. This Act may be cited as the ” South Africa Act, 1909.”
2. In this Act, unless it is otherwise expressed or implied,
the words ” the Union ” shall be taken to mean the Union of
South Africa as constituted under this Act, and the words
” Houses of Parliament,” ” House of Parliament,” or ” Parlia-
ment,” shall be taken to mean the Parliament of the Union.
3. The provisions of this Act referring to the King shall
extend to His Majesty’s heirs and successors in the sovereignty
of the United Kingdom of Great Britain and Ireland.
522 THE UNION
II. THE UNION.
4. It shall be lawful for the King, with the advice of the
Privy Council, to declare by proclamation that, on and after a
day therein appointed, not being later than one year after the
passing of this Act, the Colonies of the Cape of Good Hope,
Natal, the Transvaal, and the Orange River Colony, herein-
after called the Colonies, shall be united in a Legislative Union
under one Government under the name of the Union of South
Africa. On and after the day appointed by such proclama-
tion the Government and Parliament of the Union shall have
full power and authority within the limits of the Colonies, but
the King may at any time after the proclamation appoint a
governor-general for the Union.
5. The provisions of this Act shall, unless it is otherwise
expressed or implied, take effect on and after the day so
appointed.
6. The colonies mentioned in section four shall become
original provinces of the Union under the names of Cape of
Good Hope, Natal, Transvaal, and Orange Free State, as the
case may be. The original provinces shall have the same
limits as the respective colonies at the establishment of the
Union.
7. Upon any colony entering the Union, the Colonial
Boundaries Act, 1895, and every other Act applying to any
of the Colonies, as being self-governing colonies or colonies
with responsible government, shall cease to apply to that
colony, but as from the date when this Act takes effect every
such Act of Parliament shall apply to the Union.
III. EXECUTIVE GOVERNMENT.
8. The Executive Government of the Union is vested in the
King, and shall be administered by His Majesty in person or
by a governor-general as His representative.
9. The Governor-General shall be appointed by the King,
and shall have and may exercise in the Union during the
King’s pleasure, but subject to this Act, such powers and
functions of the King as His Majesty may be pleased to assign
to him.
10. There shall be payable to the King out of the Con-
solidated Revenue Fund of the Union for the salary of the
Governor-General an annual sum of ten thousand pounds. The
salary of the Governor-General shall not be altered during his
continuance in office.
11. The provisions of this Act relating to the Governor-
General extend and apply to the Governor-General for the
time being or such person as the King may appoint to ad-
523
minister the government of the Union. The King may
authorise the Governor-General to appoint any person to be
his deputy within the Union during his temporary absence,
and in that capacity to exercise for and on behalf of the
Governor-General during such absence all such powers and
authorities vested in the Governor-General as the Governor-
General may assign to him, subject to any limitations ex-
pressed or directions given by the King ; but the appointment
of such deputy shall not affect the exercise by the Governor-
General himself of any power or function.
12. There shall be an Executive Council to advise the
Governor-General in the Government of the Union, and the
members of the council shall be chosen and summoned by the
Governor-General and sworn as executive councillors, and shall
hold office during his pleasure.
13. The provisions of this Act referring to the Governor-
General in Council shall be construed as referring to the
Governor-General acting with the advice of the Executive
Council.
14. The Governor-General may appoint officers not exceed-
ing ten in number to administer such departments of State
of the Union as the Governor-General in Council may estab-
lish ; such officers shall hold office during the pleasure of the
Governor-General. They shall be members of the Executive
Council and shall be the King’s ministers of State for the
Union. After the first general election of members of the
House of Assembly, as hereinafter provided, no minister shall
hold office for a longer period than three months unless he is or
becomes a member of either House of Parliament.
15. The appointment and removal of all officers of the
public service of the Union shall be vested in the Governor-
General in Council, unless the appointment is delegated by the
Governor-General in Council or by this Act or by a law of
Parliament to some other authority.
16. All powers, authorities, and functions which at the
establishment of the Union are in any of the Colonies vested
in the Governor or in the Governor in Council, or in any
authority of the Colony, shall, as far as the same continue in
existence and are capable of being exercised after the establish-
ment of the Union, be vested in the Governor-General or in the
Governor-General in Council, or in the authority exercising
similar powers under the Union, as the case may be, except
such powers and functions as are by this Act or may by a law
of Parliament be vested in some other authority.
17. The command in chief of the naval and military forces
within the Union is vested in the King or in the Governor-
General as His representative.
524 THE UNION
18. Save as in section twenty-three excepted, Pretoria shall
be the seat of Government of the Union.
IV. PARLIAMENT.
19. The legislative power of the Union shall be vested in
the Parliament of the Union, herein called Parliament, which
shall consist of the King, a Senate, and a House of Assembly.
20. The Governor-General may appoint such times for
holding the sessions of Parliament as he thinks fit, and may
also from time to time, by proclamation or otherwise, prorogue
Parliament, and may in like manner dissolve the Senate and
the House of Assembly simultaneously, or the House of
Assembly alone : provided that the Senate shall not be dis-
solved within a period of ten years after the establishment of
the Union, and provided further that the dissolution of the
Senate shall not affect any senators nominated by the Governor-
General in Council.
21. Parliament shall be summoned to meet not later than
six months after the establishment of the Union.
22. There shall be a session of Parliament once at least in
every year, so that a period of twelve months shall not inter-
vene between the last sitting of Parliament in one session and
its first sitting in the next session.
23. Cape Town shall be the seat of the Legislature of the
Union.
Senate.
24. For ten years after the establishment of the Union the
constitution of the Senate shall, in respect of the original
provinces, be as follows :
(i) Eight senators shall be nominated by the Governor-
General in Council, and for each original province
eight senators shall be elected in the manner
hereinafter provided ;
(ii) The senators to be nominated by the Governor-
General in Council shall hold their seats for ten
years. One-half of their number shall be
selected on the ground mainly of their thorough
acquaintance, by reason of their official experi-
ence or otherwise, with the reasonable wants
and wishes of the coloured races in South Africa.
If the seat of a senator so nominated shall become
vacant, the Governor-General in Council shall
nominate another person to be a senator, who
shall hold his seat for ten years ;
(iii) After the passing of this Act, and before the day
appointed for the establishment of the Union,
SOUTH AFRICA ACT, 1909 525
the Governor of each of the Colonies shall summon
a special sitting of both Houses of the Legislature,
and the two Houses sitting together as one body
and presided over by the Speaker of the Legis-
lative Assembly shall elect eight persons to be
senators *or the province. Such senators shall
hold their seats for ten years. If the seat of a
senator so elected shall become vacant, the
provincial council of the province for which such
senator has been elected shall choose a person to
hold the seat until the completion of the period
for which the person in whose stead he is elected
would have held his seat.
25. Parliament may provide for the manner in which the
Senate shall be constituted after the expiration of ten years,
and unless and until such provision shall have been made
(i) the provisions of the last preceding section with re-
gard to nominated senators shall continue to have
effect ;
(ii) eight senators for each province shall be elected by
the members of the provincial council of such
province together with the members of the
House of Assembly elected for such province.
Such senators shall hold their seats for ten years
unless the Senate be sooner dissolved. If the
seat of an elected senator shall become vacant,
the members of the provincial council of the
province, together with the members of the
House of Assembly elected for such province,
shall choose a person to hold the seat until the
completion of the period for which the person in
whose stead he is elected would have held his
seat. The Governor-General in Council shall
make regulations for the joint election of senators
prescribed in this section.
26. The qualifications of a senator shall be as follows :
He must
(a) be not less than thirty years of age ;
(b) be qualified to be registered as a voter for the
election of members of the House of Assembly
in one of the provinces ;
(c) have resided for five years within the limits of the
Union as existing at the time when he is elected
or nominated, as the case may be ;
(d) be a British subject of European descent ;
(e) in the case of an elected senator, be the registered
owner of immovable property within the Union
526 THE UNION
of the value of not less than five hundred pounds
over and above any special mortgages thereon.
For the purposes of this section, residence in, and property
situated within, a colony before its incorporation in the Union
shall be treated as residence in and property situated within
the Union.
27. The Senate shall, before proceeding to the dispatch of
any other business, choose a senator to be the President of the
Senate, and as often as the office of President becomes vacant
the Senate shall again choose a senator to be the President.
The President shall cease to hold office if he ceases to be a
senator. He may be removed from office by a vote of the
Senate, or he may resign his office by writing under his hand
addressed to the Governor-General.
28. Prior to or during any absence of the President the
Senate may choose a senator to perform his duties in his
absence.
29. A senator may, by writing under his hand addressed
to the Governor-General, resign his seat, which thereupon shall
become vacant. The Governor-General shall as soon as practi-
cable cause steps to be taken to have the vacancy filled.
30. The presence of at least twelve senators shall be
necessary to constitute a meeting of the Senate for the exercise
of its powers.
31. All questions in the Senate shall be determined by a
majority of votes of senators present other than the President
or the presiding senator, who shall, however, have and exercise
a casting vote in the case of an equality of votes.
House of Assembly.
32. The House of Assembly shall be composed of members
directly chosen by the voters of the Union in electoral divisions
delimited as hereinafter provided.
33. The number of members to be elected in the original
provinces at the first election and until the number is altered
in accordance with the provisions of this Act shall be as
follows :
Cape of Good Hope . . . Fifty-one.
Natal ….. Seventeen.
Transvaal ….. Thirty-six.
Orange Free State . . . Seventeen.
These numbers may be increased as provided in the next suc-
ceeding section, but shall not, in the case of any original
province, be diminished until the total number of members of
the House of Assembly in respect of the provinces herein
provided for reaches one hundred and fifty, or until a period of
SOUTH AFRICA ACT, 1909 527
ten years has elapsed after the establishment of the Union,
whichever is the longer period.
34. The number of members to be elected in each province,
as provided in section thirty-three, shall be increased from
time to time as may be necessary in accordance with the fol-
lowing provisions :
(i) The quota of the Union shall be obtained by dividing
the total number of European male adults in the
Union, as ascertained at the census of nineteen
hundred and four, by the total number of
members of the House of Assembly as con-
stituted at the establishment of the Union :
(ii) In nineteen hundred and eleven, and every five
years thereafter, a census of the European popu-
lation of the Union shall be taken for the purposes
of this Act :
(iii) After any such census the number of European
male adults in each province shall be compared
with the number of European male adults as
ascertained at the census of nineteen hundred
and four, and, in the case of any province where
an increase is shown, as compared with the
census of nineteen hundred and four, equal to
the quota of the Union or any multiple thereof,
the number of members allotted to such pro-
vince in the last preceding section shall be
increased by an additional member or an addi-
tional number of members equal to such multiple,
as the case may be :
(iv) Notwithstanding anything herein contained, no
additional member shall be allotted to any
province until the total number of European
male adults in such province exceeds the quota
of the Union multiplied by the number of
members allotted to such province for the time
being, and thereupon additional members shall
be allotted to such province in respect only of
such excess :
(v) As soon as the number of members of the House of
Assembly to be elected in the original provinces
in accordance with the preceding subsections
reaches the total of one hundred and fifty, such
total shall not be further increased unless and
until Parliament otherwise provides ; and sub-
ject to the provisions of the last preceding
section the distribution of members among the
provinces shall be such that the proportion
528 THE UNION
between the number of members to be elected at
any time in each province and the number of
European male adults in such province, as
ascertained at the last preceding census, shall
as far as possible be identical throughout the
Union :
(vi) ” Male adults ” in this Act shall be taken to mean
males of twenty-one years of age or upwards not
being members of His Majesty’s regular forces on
full pay :
(vii) For the purposes of this Act the number of
European male adults, as ascertained at the
census of nineteen hundred and four, shall be
taken to be
For the Cape of Good Hope . 167,546
For Natal. . . . 34,784
For the Transvaal . . 106,493
For the Orange Free State . 41,014
35. (i) Parliament may by law prescribe the qualifications
which shall be necessary to entitle persons to vote at the election
of members of the House of Assembly, but no such law shall
disqualify any person in the province of the Cape of Good Hope
who, under the laws existing in the Colony of the Cape of Good
Hope at the establishment of the Union, is or may become
capable of being registered as a voter from being so registered
in the province of the Cape of Good Hope by reason of his race
or colour only, unless the Bill be passed by both Houses of
Parliament sitting together, and at the third reading be agreed
to by not less than two-thirds of the total number of members
of both Houses. A Bill so passed at such joint sitting shall be
taken to have been duly passed by both Houses of Parliament.
(2) No person who at the passing of any such law is regis-
tered as a voter in any province shall be removed from the
register by reason only of any disqualification based on race or
colour.
36. Subject to the provisions of the last preceding section,
the qualifications of parliamentary voters, as existing in the
several Colonies at the establishment of the Union, shall be
the qualifications necessary to entitle persons in the corre-
sponding provinces to vote for the election of members of the
House of Assembly : Provided that no member of His Majesty’s
regular forces on full pay shall be entitled to be registered as
a voter.
37. (i) Subject to the provisions of this Act, the laws in
force in the Colonies at the establishment of the Union relating
to elections for the more numerous Houses of Parliament in
such Colonies respectively, the registration of voters, the oaths
SOUTH AFRICA ACT, 1909 52$
or declarations to be taken by voters, returning officers, the
powers and duties of such officers, the proceedings in connec-
tion with elections, election expenses, corrupt and illegal
practices, the hearing of election petitions and the proceedings
incident thereto, the vacating of seats of members, and the
proceedings necessary for filling such vacancies, shall, mutatis
mutandis, apply to the elections in the respective provinces
of members of the House of Assembly.
(2) Notwithstanding anything to the contrary in any of
the said laws contained, at any general election of members of
the House of Assembly, all polls shall be taken on one and the
same day in all the electoral divisions throughout the Union,
such day to be appointed by the Governor- General in Council.
38. Between the date of the passing of this Act and the
date fixed for the establishment of the Union, the Governor in
Council of each of the Colonies shall nominate a judge of any
of the Supreme or High Courts of the Colonies, and the judges
so nominated shall, upon acceptance by them respectively of
such nomination, form a joint commission, without any further
appointment, for the purpose of the first division of the pro-
vinces into electoral divisions. The High Commissioner for
South Africa shall forthwith convene a meeting of such com-
mission at such time and place in one of the Colonies as he
shall fix and determine. At such meeting the Commissioners
shall elect one of their number as chairman of such commission.
They shall thereupon proceed with the discharge of their
duties under this Act, and may appoint persons in any province
to assist them or to act as assessors to the commission or with
individual members thereof for the purpose of inquiring into
matters connected with the duties of the commission. The
commission may regulate their own procedure and may act
by a majority of their number. All moneys required for the
payment of the expenses of such commission before the estab-
lishment of the Union in any of the Colonies shall be provided
by the Governor in Council of such Colony. In case of the
death, resignation, or other disability of any of the Com-
missioners before the establishment of the Union, the Governor
in Council of the Colony in respect of which he was nominated
shall forthwith nominate another judge to fill the vacancy.
After the establishment of the Union the expenses of the
commission shall be defrayed by the Governor- General in
Council, and any vacancies shall be filled by him.
39. The commission shall divide each province into electoral
divisions, each returning one member.
40. (i) For the purpose of such division as is in the last
preceding section mentioned, the quota of each province shall
be obtained by dividing the total number of voters in the
34
530 THE UNION
province, as ascertained at the last registration of voters, by
the number of members of the House of Assembly to be elected
therein.
(2) Each province shall be divided into electoral divisions
in such a manner that each such division shall, subject to the
provisions of subsection (3) of this section, contain a number
of voters, as nearly as may be, equal to the quota of the
province.
(3) The Commissioners shall give due consideration to
(a) community or diversity of interests ;
(b) means of communication ;
(c) physical features ;
(d) existing electoral boundaries ;
(e) sparsity or density of population ;
in such manner that, while taking the quota of voters as the
basis of division, the Commissioners may, whenever they deem
it necessary, depart therefrom, but in no case to any greater
extent than fifteen per centum more or fifteen per centum less
than the quota.
41. As soon as may be after every quinquennial census,
the Governor- General in Council shall appoint a commission
consisting of three judges of the Supreme Court of South Africa
to carry out any re-division which may have become necessary
as between the different electoral divisions in each province,
and to provide for the allocation of the number of members to
which such province may have become entitled under the
provisions of this Act. In carrying out such re-division and
allocation the commission shall have the same powers and
proceed upon the same principles as are by this Act in regard to
the original division.
42. (i) The joint commission constituted under section
thirty-eight, and any subsequent commission appointed under
the provisions of the last preceding section, shall submit to
the Governor-General in Council
(a) a list of electoral divisions, with the names given
to them by the commission and a description of
the boundaries of every such division :
(b) a map or maps showing the electoral divisions into
which the provinces have been divided :
(c) such further particulars as they consider necessary.
(2) The Governor-General in Council may refer to the
commission for its consideration any matter relating to such
list or arising out of the powers or duties of the commission.
(3) The Governor-General in Council shall proclaim the
names and boundaries of the electoral divisions as finally
settled and certified by the commission, or a majority thereof,
and thereafter, until there shall be a re-division, the electoral
SOUTH AFRICA ACT, 1909 531
divisions as named and defined shall be the electoral divisions
of the Union in the provinces.
(4) If any discrepancy shall arise between the description
of the divisions and the aforesaid map or maps, the description
shall prevail.
43. Any alteration in the number of members of the House
of Assembly to be elected in the several provinces, and any
re-division of the provinces into electoral divisions, shall, in
respect of the election of members of the House of Assembly,
come into operation at the next general election held after the
completion of the re-division or of any allocation consequent
upon such alteration, and not earlier.
44. The qualifications of a member of the House of Assembly
shall be as follows :
He must
(a) be qualified to be registered as a voter for the elec-
tion of members of the House of Assembly in
one of the provinces ;
(6) have resided for five years within the limits of the
Union as existing at the time when he is elected ;
(c) be a British subject of European descent.
For the purposes of this section, residence in a colony before
its incorporation in the Union shall be treated as residence in
the Union.
45. Every House of Assembly shall continue for five years
from the first, meeting thereof, and no longer, but may be
sooner dissolved by the Governor-General.
46. The House of Assembly shall, before proceeding to
the despatch of any other business, choose a member to be
the Speaker of the House, and, as often as the office of Speaker
becomes vacant, the House shall again choose a member to be
the Speaker. The Speaker shall cease to hold his office if he
ceases to be a member. He may be removed from office by a
vote of the House, or he may resign his office or his seat by
writing under his hand addressed to the Governor- General.
47. Prior to or during the absence of the Speaker, the
House of Assembly may choose a member to perform his
duties in his absence.
48. A member may, by writing under his hand addressed
to the Speaker, or, if there is no Speaker, or if the Speaker is
absent from the Union, to the Governor- General, resign his
seat, which shall thereupon become vacant.
49. The presence of at least thirty members of the House
of Assembly shall be necessary to constitute a meeting of the
House for the exercise of its powers.
50. All questions in the House of Assembly shall be deter-
mined by a majority of votes of members present other than the
532 THE UNION
Speaker or the presiding member, who shall, however, have
and exercise a casting vote in the case of an equality of votes.
Both Houses of Parliament.
51. Every senator and every member of the House of
Assembly shall, before taking his seat, make and subscribe
before the Governor-General, or some person authorised by
him, an oath or affirmation of allegiance in the following
form :
Oath.
I, A. B., do swear that I will be faithful and bear true
allegiance to His Majesty [here insert the name of
the King or Queen of the United Kingdom of Great
Britain and Ireland for the time being] His [or
Her] heirs and successors according to law. So
help me God.
Affirmation.
I, A. B., do solemnly and sincerely affirm and declare
that I will be faithful and bear true allegiance to
His Majesty [here insert the nam,e of the King or
Queen of the United Kingdom of Great Britain and
Ireland for the time being] His [or Her] heirs and
successors according to law.
52. A member of either House of Parliament shall be in-
capable of being chosen or of sitting as a member of the other
House : Provided that every minister of State who is a member
of either House of Parliament shall have the right to sit and
speak in the Senate and the House of Assembly, but shall vote
only in the House of which he is a member.
53. No person shall be capable of being chosen or of sitting
as a senator or as a member of the House of Assembly who
(a) has been at anytime convicted of any crime or offence
for which he shall have been sentenced to im-
prisonment without the option of a fine for a
term of not less than twelve months, unless
he shall have received a grant of amnesty or a
free pardon, or unless such imprisonment shall
have expired at least five years before the date
of his election ; or
(6) is an unrehabilitated insolvent ; or
(c) is of unsound mind, and has been so declared by a
competent court ; or
(d) holds any office of profit under the Crown within
the Union : Provided that the following persons
shall not be deemed to hold an office of profit
SOUTH AFRICA ACT, 1909 533
under the Crown for the purposes of this sub-
section :
(1) a minister of State for the Union ;
(2) a person in receipt of a pension from the
Crown ;
(3) an officer or member of His Majesty’s
naval or military forces on retired or half pay,
or an officer or member of the naval or military
forces of the Union whose services are not
wholly employed by the Union.
54. If a senator or member of the House of Assembly
(a) becomes subject to any of the disabilities mentioned
in the last preceding section ; or
(b) ceases to be qualified as required by law ; or
(c) fails for a whole ordinary session to attend without
the special leave of the Senate or the House of
Assembly, as the case may be ;
his seat shall thereupon become vacant.
55. If any person who is by law incapable of sitting as a
senator or member of the House of Assembly shall, while so
disqualified and knowing or having reasonable grounds for
knowing that he is so disqualified, sit or vote as a member of
the Senate or the House of Assembly, he shall be liable to a
penalty of one hundred pounds for each day on which he shall
so sit or vote, to be recovered on behalf of the Treasury of the
Union by action in any Superior Court of the Union.
56. Each senator and each member of the House of
Assembly shall, under such rules as shall be framed by
Parliament, receive an allowance of four hundred pounds a
year, to be reckoned from the date on which he takes his
seat : Provided that for every day of the session on which
he is absent there shall be deducted from such allowance the
sum of three pounds : Provided further that no such allow-
ance shall be paid to a Minister receiving a salary under
the Crown or to the President of the Senate or the Speaker
of the House of Assembly. A day of the session shall mean
in respect of a member any day during a session on” which
the House of which he is a member or any committee of which
he is a member meets.
57. The powers, privileges, and immunities of the Senate
and of the House of Assembly and of the members and com-
mittees of each House shall, subject to the provisions of this
Act, be such as are declared by Parliament, and until declared
shall be those of the House of Assembly of the Cape of Good
Hope and of its members and committees at the establishment
of the Union.
58. Each House of Parliament may make rules and orders
534 THE UNION
with respect to the order and conduct of its business and pro-
ceedings. Until such rules and orders shall have been made
the rules and orders of the Legislative Council and House of
Assembly of the Cape of Good Hope at the establishment of
the Union shall mutatis mutandis apply to the Senate and
House of Assembly respectively. If a joint sitting of both
Houses of Parliament is required under the provisions of this
Act, it shall be convened by the Governor-General by message
to both Houses. At any such joint sitting the Speaker of the
House of Assembly shall preside and the rules of the House of
Assembly shall, as far as practicable, apply.
Powers of Parliament.
59. Parliament shall have full power to make laws for the
peace, order, and good government of the Union.
60. (i) Bills appropriating revenue or moneys or imposing
taxation shall originate only in the House of Assembly. But
a Bill shall not be taken to appropriate revenue or moneys or
to impose taxation by reason only of its containing provisions
for the imposition or appropriation of fines or other pecuniary
penalties.
(2) The Senate may not amend any Bills so far as they
impose taxation or appropriate revenue or moneys for the
services of the Government.
(3) The Senate may not amend any Bill so as to increase
any proposed charges or burden on the people.
61. Any Bill which appropriates revenue or moneys for
the ordinary annual services of the Government shall deal only
with such appropriation.
62. The House of Assembly shall not originate or pass any
vote, resolution, address, or Bill for the appropriation of any
part of the public revenue or of any tax or impost to any pur-
pose unless such appropriation has been recommended by
message from the Governor-General during the Session in
which such vote, resolution, address, or Bill is proposed.
63. If the House of Assembly passes any Bill and the Senate
rejects or fails to pass it or passes it with amendments to which
the House of Assembly will not agree, and if the House of
Assembly in the next session again passes the Bill with or
without any amendments which have been made or agreed to
by the Senate and the Senate rejects or fails to pass it or passes
it with amendments to which the House of Assembly will not
agree, the Governor-General may during that session convene
a joint sitting of the members of the Senate and House of
Assembly. The members present at any such joint sitting
may deliberate and shall vote together upon the Bill as last
proposed by the House of Assembly and upon amendments, if
SOUTH AFRICA ACT, 1909 535
any, which have been made therein by one House of Parliament
and not agreed to by the other ; and any such amendments
which are affirmed by a majority of the total number of mem-
bers of the Senate and House of Assembly present at such
sitting shall be taken to have been carried, and if the Bill with
the amendments, if any, is affirmed by a majority of the mem-
bers of the Senate and House of Assembly present at such
sitting, it shall be taken to have been duly passed by both
Houses of Parliament : Provided that, if the Senate shall reject
or fail to pass any Bill dealing with the appropriation of revenue
or moneys for the public service, such joint sitting may be
convened during the same session in which the Senate so rejects
or fails to pass such Bill.
64. When a Bill is presented to the Governor-General for
the King’s Assent, he shall declare according to his discretion,
but subject to the provisions of this Act, and to such instruc-
tions as may from time to time be given in that behalf by the
King, that he assents in the King’s name, or that he withholds
assent, or that he reserves the Bill for the signification of the
King’s pleasure. All Bills repealing or amending this section
or any of the provisions of Chapter IV. under the heading
” House of Assembly,” and all Bills abolishing provincial
councils or abridging the powers conferred on provincial
councils under section eighty-five, otherwise than in accordance
with the provisions of that section, shall be so reserved. The
Governor-General may return to the House in which it origin-
ated any Bill so presented to him, and may transmit therewith
any amendments which he may recommend, and the House
may deal with the recommendation.
65. The King may disallow any law within one year after
it has been assented to by the Governor-General, and such
disallowance, on being made known by the Governor-General
by speech or message to each of the Houses of Parliament or by
proclamation, shall annul the law from the day when the dis-
allowance is so made known.
66. A Bill reserved for the King’s pleasure shall not have
any force unless and until, within one year from the day on
which it was presented to the Governor-General for the King’s
Assent, the Governor-General makes known by speech or
message to each of the Houses of Parliament or by proclamation
that it has received the King’s Assent.
67. As soon as may be after any law shall have been as-
sented to in the King’s name by the Governor-General, or
having been reserved for the King’s pleasure shall have received
his assent, the Clerk of the House of Assembly shall cause two
fair copies of such law, one being in the English and the other
in the Dutch language (one of which copies shall be signed by
536 THE UNION
the Governor-General), to be enrolled of record in the office of
the Registrar of the Appellate Division of the Supreme Court
of South Africa ; and such copies shall be conclusive evidence
as to the provisions of every such law, and in case of conflict
between the two copies thus deposited that signed by the
Governor-General shall prevail.
V. THE PROVINCES.
A dministrators.
68. (i) In each province there shall be a chief executive
officer appointed by the Governor-General in Council, who shall
be styled the administrator of the province, and in whose name
all executive acts relating to provincial affairs therein shall be
done.
(2) In the appointment of the administrator of any pro-
vince, the Governor-General in Council shall, as far as practi-
cable, give preference to persons resident in such province.
(3) Such administrator shall hold office for a term of five
years and shall not be removed before the expiration thereof
except by the Governor-General in Council for cause assigned,
which shall be communicated by message to both Houses of
Parliament within one week after the removal, if Parliament be
then sitting, or, if Parliament be not sitting, then within one
week after the commencement of the next ensuing session.
(4) The Governor-General in Council may from time to
time appoint a deputy administrator to execute the office and
functions of the administrator during his absence, illness, or
other inability.
69. The salaries of the administrators shall be fixed and
provided by Parliament, and shall not be reduced during their
respective terms of office.
Provincial Councils.
70. (i) There shall be a provincial council in each province
consisting of the same number of members as are elected in the
province for the House of Assembly : Provided that, in any
province whose representatives in the House of Assembly shall
be less than twenty-five in number, the provincial council shall
consist of twenty-five members.
(2) Any person qualified to vote for the election of members
of the provincial council shall be qualified to be a member of
such council.
71. (i) The members of the provincial, council shall be
elected by the persons qualified to vote for the election of
members of the House of Assembly in the province voting in
the same electoral divisions as are delimited for the election
SOUTH AFRICA ACT, 1909 537
of members of the House of Assembly : Provided that, in any
province in which less than twenty-five members are elected
to the House of Assembly, the delimitation of the electoral
divisions, and any necessary re-allocation of members or
adjustment of electoral divisions, shall be effected by the same
commission and on the same principles as are prescribed in
regard to the electoral divisions for the House of Assembly.
(2) Any alteration in the number of members of the pro-
vincial council, and any re-division of the province into electoral
divisions, shall come into operation at the next general election
for such council held after the completion of such re-division,
or of any allocation consequent upon such alteration, and not
earlier.
(3) The election shall take place at such times as the
administrator shall by proclamation direct, and the provisions
of section thirty-seven applicable to the election of members
of the House of Assembly shall mutatis mutandis apply to
such elections.
72. The provisions of sections fifty-three, fifty-four, and
fifty-five, relative to members of the House of Assembly, shall
mutatis mutandis apply to members of the provincial councils :
Provided that any member of a provincial council who shall
become a member of either House of Parliament shall there-
upon cease to be a member of such provincial council.
73. Each provincial council shall continue for three years
from the date of its first meeting, and shall not be subject to
dissolution save by efHuxion of time.
74. The administrator of each province shall by proclama-
tion fix such times for holding the sessions of the provincial
council as he may think fit, and may from time to time pro-
rogue such council : Provided that there shall be a session of
every provincial council once at least in every year, so that a
period of twelve months shall not intervene between the last
sitting of the council in one session and its first sitting in the
next session.
75. The provincial council shall elect from among its
members a chairman, and may make rules for the conduct of
its proceedings. Such rules shall be transmitted by the
administrator to the Governor-General, and shall have full
force and effect unless and until the Governor-General in
council shall express his disapproval thereof in writing ad-
dressed to the administrator.
76. The members of the provincial council shall receive
such allowances as shall be determined by the Governor-General
in Council.
77. There shall be freedom of speech in the provincial
council, and no member shall be liable to any action or pro-
538 THE UNION
ceeding in any court by reason of his speech or vote in such
council.
Executive Committees.
78. (i) Each provincial council shall at its first meeting
after any general election elect from among its members, or
otherwise, four persons to form with the administrator, who
shall be chairman, an executive committee for the province.
The members of the executive committee other than the
administrator shall hold office until the election of their suc-
cessors in the same manner.
(2) Such members shall receive such remuneration as the
provincial council, with the approval of the Governor-General
in Council, shall determine.
(3) A member of the provincial council shall not be dis-
qualified from sitting as a member by reason of his having
been elected as a member of the executive committee.
(4) Any casual vacancy arising in the executive committee
shall be filled by election by the provincial council if then in
session or, if the council is not in session, by a person appointed
by the executive committee to hold office temporarily pending
an election by the council.
79. The administrator and any other member of the
executive committee of a province, not being a member of
the provincial council, shall have the right to take part in the
proceedings of the council, but shall not have the right to vote.
80. The executive committee shall on behalf of the pro-
vincial council carry on the administration of provincial affairs.
Until the first election of members to serve on the executive
committee, such administration shall be carried on by the
administrator. Whenever there are not sufficient members
of the executive committee to form a quorum according to
the rules of the committee, the administrator shall, as soon as
practicable, convene a meeting of the provincial council for
the purpose of electing members to fill the vacancies, and
until such election the administrator shall carry on the ad-
ministration of provincial affairs.
81. Subject to the provisions of this Act, all powers,
authorities, and functions which at the establishment of the
Union are in any of the Colonies vested in or exercised by
the Governor or the Governor in Council, or any minister of
the Colony, shall after such establishment be vested in the
executive committee of the province so far as such powers,
authorities, and functions relate to matters in respect of
which the provincial council is competent to make ordinances.
82. Questions arising in the executive committee shall be
determined by a majority of votes of the members present, and,
SOUTH AFRICA ACT, 1909 539
in case of an equality of votes, the administrator shall have
also a casting vote. Subject to the approval of the Governor-
General in Council, the executive committee may make rules
for the conduct of its proceedings.
83. Subject to the provisions of any law passed by Parlia-
ment regulating the conditions of appointment, tenure of office,
retirement and superannuation of public officers, the executive
committee shall have power to appoint such officers as may be
necessary, in addition to officers assigned to the province by the
Governor-General in Council under the provisions of this Act,
to carry out the services entrusted to them and to make and
enforce regulations for the organisation and discipline of such
officers.
84. In regard to all matters in respect of which no powers
are reserved or delegated to the provincial council, the ad-
ministrator shall act on behalf of the Governor- General in
Council when required to do so, and in such matters the
administrator may act without reference to the other members
of the executive committee.
Powers of Provincial Councils.
85. Subject to the provisions of this Act and the assent
of the Governor-General in Council as hereinafter provided,
the provincial council may make ordinances in relation to
matters coming within the following classes of subjects (that
is to say) :
(i) Direct taxation within the province in order to raise
a revenue for provincial purposes :
(ii) The borrowing of money on the sole credit of the
province with the consent of the Governor-
General in Council and in accordance with
regulations to be framed by Parliament :
(iii) Education, other than higher education, for a
period of five years and thereafter until Parlia-
ment otherwise provides :
(iv) Agriculture to the extent and subject to the con-
ditions to be defined by Parliament :
(v) The establishment, maintenance, and management
of hospitals and charitable institutions :
(vi) Municipal institutions, divisional councils, and
other local institutions of a similar nature :
(vii) Local works and undertakings within the province,
other than railways and harbours and other than
such works as extend beyond the borders of the
province, and subject to the power of Parliament
to declare any work a national work and to pro-
540 THE UNION
vide for its construction by arrangement with
the provincial council or otherwise :
(viii) Roads, outspans, ponts, and bridges, other than
bridges connecting two provinces :
(ix) Markets and pounds :
(x) Fish and game preservation :
(xi) The imposition of punishment by fine, penalty, or
imprisonment for enforcing any law or any
ordinance of the province made in relation to
any matter coming within any of the classes of
subjects enumerated in this section :
(xii) Generally all matters which, in the opinion of the
Governor-General in Council, are of a merely
local or private nature in the province :
(xiii) All other subjects in respect of which Parliament
shall by any law delegate the power of making
ordinances to the provincial council.
86. Any ordinance made by a provincial council shall have
effect in and for the province as long and as far only as it is
not repugnant to any Act of Parliament.
87. A provincial council may recommend to Parliament the
passing of any law relating to any matter in respect of which
such council is not competent to make ordinances.
88. In regard to any matter which requires to be dealt
with by means of a private Act of Parliament, the provincial
council of the province to which the matter relates may, subject
to such procedure as shall be laid down by Parliament, take
evidence by means of a Select Committee or otherwise for and
against the passing of such law, and, upon receipt of a report
from such council, together with the evidence upon which it
is founded, Parliament may pass such Act without further
evidence being taken in support thereof.
89. A provincial revenue fund shall be formed in every
province, into which shall be paid all revenues raised by or
accruing to the provincial council and all moneys paid over by
the Governor-General in Council to the provincial council.
Such fund shall be appropriated by the provincial council by
ordinance for the purposes of the provincial administration
generally, or, in the case of moneys paid over by the Governor-
General in Council for particular purposes, then for such pur-
poses, but no such ordinance shall be passed by the provincial
council unless the administrator shall have first recommended
to the council to make provision for the specific service for
which the appropriation is to be made. No money shall be
issued from the provincial revenue fund except in accordance
with such appropriation and under warrant signed by the
administrator : Provided that, until the expiration of one
SOUTH AFRICA ACT, 1909 541
month after the first meeting of the provincial council, the
administrator may expend such moneys as may be necessary
for the services of the province.
90. When a proposed ordinance has been passed by a
provincial council it shall be presented by the administrator to
the Governor- General in Council for his assent. The Governor-
General in Council shall declare within one month from the
presentation to him of the proposed ordinance that he assents
thereto, or that he withholds assent, or that he reserves the
proposed ordinance for further consideration. A proposed
ordinance so reserved shall not have any force unless and until,
within one year from the day on which it was presented to the
Governor- General in Council, he makes known by proclamation
that it has received his assent.
91. An ordinance assented to by the Governor- General in
Council and promulgated by the administrator shall, subject to
the provisions of this Act, have the force of law within the
province. The administrator shall cause two fair copies of
every such ordinance, one being in the English and the other
in the Dutch language (one of which copies shall be signed by
the Governor- General), to be enrolled of record in the office
of the Registrar of the Appellate Division of the Supreme Court
of South Africa ; and such copies shall be conclusive evidence
as to the provisions of such ordinance, and, in case of conflict
between the two copies thus deposited, that signed by the
Governor-General shall prevail.
Miscellaneous.
92. (i) In each province there shall be an auditor of
accounts to be appointed by the Governor-General in Council.
(2) No such auditor shall be removed from office except
by the Governor-General in Council for cause assigned, which
shall be communicated by message to both Houses of Parlia-
ment within one week after the removal, if Parliament be
then sitting, and, if Parliament be not sitting, then within one
week after the commencement of the next ensuing session.
(3) “Each such auditor shall receive out of the Consolidated
Revenue Fund such salary as the Governor-General in Council,
with the approval of Parliament, shall determine.
(4) Each such auditor shall examine and audit the accounts
of the province to which he is assigned subject to such regula-
tions and orders as may be framed by the Governor-General
in Council and approved by Parliament, and no warrant signed
by the administrator authorising the issuing of money shall
have effect unless countersigned by such auditor.
93. Notwithstanding anything in this Act contained, all
powers, authorities, and functions lawfully exercised at the
542 THE UNION
establishment of the Union by divisional or municipal councils,
or any other duly constituted local authority, shall be and
remain in force until varied or withdrawn by Parliament or
by a provincial council having power in that behalf.
94. The seats of provincial government shall be :
For the Cape of Good Hope . . Cape Town.
For Natal …. Pietermaritzburg.
For the Transvaal . . . Pretoria.
For the Orange Free State . . Bloemfontein.
VI. THE SUPREME COURT OF SOUTH AFRICA.
95. There shall be a Supreme Court of South Africa con-
sisting of a Chief Justice of South Africa, the ordinary judges
of appeal, and the other judges of the several divisions of the
Supreme Court of South Africa in the provinces.
96. There shall be an Appellate Division of the Supreme
Court of South Africa, consisting of the Chief Justice of South
Africa, two ordinary judges of appeal, and two additional
judges of appeal. Such additional judges of appeal shall be
assigned by the Governor-General in Council to the Appellate
Division from any of the provincial or local divisions of the
Supreme Court of South Africa, but shall continue to perform
their duties as judges of their respective divisions when their
attendance is not required in the Appellate Division.
97. The Governor-General in Council may, during the
absence, illness, or other incapacity of the Chief Justice of
South Africa, or of any ordinary or additional judge of appeal,
appoint any other judge of the Supreme Court of South Africa
to act temporarily as such chief justice, ordinary judge of
appeal, or additional judge of appeal, as the case may be.
98. (i) The several supreme courts of the Cape of Good
Hope, Natal, and the Transvaal, and the High Court of the
Orange River Colony shall, on the establishment of the Union,
become provincial divisions of the Supreme Court of South
Africa within their respective provinces, and shall each be
presided over by a judge-president.
(2) The court of the eastern districts of the Cape of Good
Hope, the High Court of Griqualand, the High Court of Wit-
watersrand, and the several circuit courts, shall become local
divisions of the Supreme Court of South Africa within the
respective areas of their jurisdiction as existing at the establish-
ment of the Union.
(3) The said provincial and local divisions, referred to in
this Act as superior courts, shall, in addition to any original
jurisdiction exercised by the corresponding courts of the
Colonies at the establishment of the Union, have jurisdiction
in all matters :
SOUTH AFRICA ACT, 1909 543
(a) in which the Government of the Union or a person
suing or being sued on behalf of such Govern-
ment is a party :
(6) in which the validity of any provincial ordinance
shall come into question.
(4) Unless and until Parliament shall otherwise provide,
the said superior courts shall, mutatis mutandis, have the same
jurisdiction in matters affecting the validity of elections of
members of the House of Assembly and provincial councils as
the corresponding courts of the Colonies have at the establish-
ment of the Union in regard to parliamentary elections in such
Colonies respectively.
99. All judges of the supreme courts of the Colonies,
including the High Court of the Orange River Colony, holding
office at the establishment of the Union shall on such establish-
ment become judges of the Supreme Court of South Africa,
assigned to the divisions of the Supreme Court in the respective
provinces, and shall retain all such rights in regard to salaries
and pensions as they may possess at the establishment of the
Union. The Chief Justices of the Colonies holding office at
the establishment of the Union shall on such establishment
become the Judges-President of the divisions of the Supreme
Court in the respective provinces, but shall so long as they
hold that office retain the title of Chief Justice of their respective
provinces.
100. The Chief Justice of South Africa, the ordinary judges
of appeal, and all other judges of the Supreme Court of South
Africa to be appointed after the establishment of the Union
shall be appointed by the Governor-General in Council, and
shall receive such remuneration as Parliament shall prescribe,
and their remuneration shall not be diminished during their
continuance in office.
101. The Chief Justice of South Africa and other judges
of the Supreme Court of South Africa shall not be removed
from office except by the Governor-General in Council on an
address from both Houses of Parliament in the same session
praying for such removal on the ground of misbehaviour or
incapacity.
102. Upon any vacancy occurring in any division of the
Supreme Court of South Africa, other than the Appellate
Division, the Governor-General in Council may, in case he
shall consider that the number of judges of such court may
with advantage to the public interest be reduced, postpone
filling the vacancy until Parliament shall have determined
whether such reduction shall take place.
103. In every civil case in which, according to the law in
force at the establishment of the Union, an appeal might have
544 THE UNION
been made to the Supreme Court of any of the Colonies from
a Superior Court in any of the Colonies, or from the High
Court of Southern Rhodesia, the appeal shall be made only
to the Appellate Division, except in cases of orders or judg-
ments given by a single judge, upon applications by way of
motion or petition or on summons for provisional sentence or
judgments as to costs only, which by law are left to the dis-
cretion of the court. The appeal from any such orders or
judgments, as well as any appeal in criminal cases from any
such Superior Court, or the special reference by any such court
of any point of law in a criminal case, shall be made to the
provincial division corresponding to the court which before the
establishment of the Union would have had jurisdiction in the
matter. There shall be no further appeal against any judg-
ment given on appeal by such provincial division except to
the Appellate Division, and then only if the Appellate Division
shall have given special leave to appeal.
104. In every case, civil or criminal, in which at the estab-
lishment of the Union an appeal might have Deen made from
the Supreme Court of any of the Colonies or from the High
Court of the Orange River Colony to the King in Council, the
appeal shall be made only to the Appellate Division : Provided
that the right of appeal in any civil suit shall not be limited
by reason only of the value of the matter in dispute or the
amount claimed or awarded in such suit.
105. In every case, civil or criminal, in which at the estab-
lishment of the Union an appeal might have been made from
a court of resident magistrate or other inferior court to a
superior court in any of the Colonies, the appeal shall be made
to the corresponding division of the Supreme Court of South
Africa ; but there shall be no further appeal against any
judgment given on appeal by such division except to the
Appellate Division, and then only if the Appellate Division
shall have given special leave to appeal.
106. There shall be no appeal from the Supreme Court of
South Africa or from any division thereof to the King in
Council, but nothing herein contained shall be construed to
impair any right which the King in Council may be pleased
to exercise to grant special leave to appeal from the Appellate
Division to the King in Council. Parliament may make laws
limiting the matters in respect of which such special leave may
be asked, but Bills containing any such limitation shall be
reserved by the Governor-General for the significance of His
Majesty’s pleasure : Provided that nothing in this section
shall affect any right of appeal to His Majesty in Council from
any judgment given by the Appellate Division of the Supreme
SOUTH AFRICA ACT, 1909 545
Court under or in virtue of the Colonial Courts of Admiralty
Act, 1890. x
107. The Chief Justice of South Africa and the ordinary
judges of appeal may, subject to the approval of the Governor-
General in Council, make rules for the conduct of the pro-
ceedings of the Appellate Division and prescribing the time
and manner of making appeals thereto. Until such rules shall
have been promulgated, the rules in force in the Supreme
Court of the Cape of Good Hope at the establishment of the
Union shall mutatis mutandis apply.
108. The chief justice and other judges of the Supreme
Court of South Africa may, subject to the approval of the
Governor-General in Council, frame rules for the conduct of
the proceedings of the several provincial and local divisions.
Until such rules shall have been promulgated, the rules in
force at the establishment of the Union in the respective
courts which become divisions of the Supreme Court of South
Africa shall continue to apply therein.
109. The Appellate Division shall sit in Bloemfontein, but
may from time to time for the convenience of suitors hold its
sittings at other places within the Union.
no. On the hearing of appeals from a court consisting of
two or more judges, five judges of the Appellate Division shall
form a quorum, but, on the hearing of appeals from a single
judge, three judges of the Appellate Division shall form a
quorum. No judge shall take part in the hearing of any appeal
against the judgment given in a case heard before him.
in. The process of the Appellate Division shall run
throughout the Union, and all its judgments or orders shall
have full force and effect in every province, and shall be
executed in like manner as if they were original judgments
or orders of the provincial division of the Supreme Court of
South Africa in such province.
112. The registrar of every provincial division of the
Supreme Court of South Africa, if thereto requested by any
party in whose favour any judgment or order has been given
or made by any other division, shall, upon the deposit with
him of an authenticated copy of such judgment or order and
on proof that the same remains unsatisfied, issue a writ or other
process for the execution of such judgment or order, and there-
upon such writ or other process shall be executed in like
manner as if it had been originally issued from the division
of which he is registrar.
113. Any provincial or local division of the Supreme Court
of South Africa to which it may be made to appear that any
civil suit pending therein may be more conveniently or fitly
1 53 & 54 Viet. c. 27.
35
546 THE UNION
heard or determined in another division may order the same
to be removed to such other division, and thereupon such
last-mentioned division may proceed with such suit in like
manner as if it had been originally commenced therein.
114. The Governor-General in Council may appoint a
registrar of the Appellate Division and such other officers
thereof as shall be required for the proper dispatch of the
business thereof.
115. (i) The laws regulating the admission of advocates
and attorneys to practise before any superior court of any of
the Colonies shall mutatis mutandis apply to the admission of
advocates and attorneys to practise in the corresponding division
of the Supreme Court of South Africa.
(2) All advocates and attorneys entitled at the establish-
ment of the Union to practise in any superior court of any of
the Colonies shall be entitled to practise as such in the corre-
sponding division of the Supreme Court of South Africa.
(3) All advocates and attorneys entitled to practise before
any provincial division of the Supreme Court of South Africa
shall be entitled to practise before the Appellate Division.
116. All suits, civil or criminal, pending in any superior
court of any of the Colonies at the establishment of the Union
shall stand removed to the corresponding division of the
Supreme Court of South Africa, which shall have jurisdiction
to hear and determine the same, and all judgments and orders
of any superior court of any of the Colonies given or made
before the establishment of the Union shall have the same
force and effect as if they had been given or made by the
corresponding division of the Supreme Court of South Africa.
All appeals to the King in Council which shall be pending at
the establishment of the Union shall be proceeded with as if
this Act had not been passed.
VII. FINANCE AND RAILWAYS.
117. All revenues, from whatever source arising, over
which the several Colonies have at the establishment of the
Union power of appropriation, shall vest in the Governor-
General in Council. There shall be formed a Railway and
Harbour Fund, into which shall be paid all revenues raised
or received by the Governor-General in Council from the ad-
ministration of the railways, ports, and harbours, and such
fund shall be appropriated by Parliament to the purposes of
the railways, ports, and harbours in the manner prescribed by
this Act. There shall also be formed a Consolidated Revenue
Fund, into which shall be paid all other revenues raised or
received by the Governor-General in Council, and such fund
shall be appropriated by Parliament for the purposes of the
SOUTH AFRICA ACT, 1909 547
Union in the manner prescribed by this Act, and subject to
the charges imposed thereby.
118. The Governor- General in Council shall, as soon as
may be after the establishment of the Union, appoint a com-
mission, consisting of one representative from each province,
and presided over by an officer from the Imperial Service, to
institute an inquiry into the financial relations which should
exist between the Union and the provinces. Pending the com-
pletion of that inquiry and until Parliament otherwise provides,
there shall be paid annually out of the Consolidated Revenue
Fund to the administrator of each province :
(a) an amount equal to the sum provided in the esti-
mates for education, other than higher education,
in respect of the financial year, 1908-9, as voted
by the Legislature of the corresponding colony
during the year nineteen hundred and eight ;
(b) such further sums as the Governor-General in
Council may consider necessary for the due
performance of the services and duties assigned
to the provinces respectively.
Until such inquiry shall be completed and Parliament shall
have made other provision, the executive committees in the
several provinces shall annually submit estimates of their
expenditure for the approval of the Governor-General in
Council, and no expenditure shall be incurred by any executive
committee which is not provided for in such approved estimates.
119. The annual interest of the public debts of the Colonies
and any sinking funds constituted by law at the establishment
of the Union shall form a first charge on the Consolidated
Revenue Fund.
120. No money shall be withdrawn from the Consolidated
Revenue Fund or the Railway and Harbour Fund except under
appropriation made by law. But, until the expiration of two
months after the first meeting of Parliament, the Governor-
General in Council may draw therefrom and expend such
moneys as may be necessary for the public service, and for
railway and harbour administration respectively.
121. All stocks, cash, bankers’ balances, and securities for
money belonging to each of the Colonies at the establishment
of the Union shall be the property of the Union : Provided
that the balances of any funds raised at the establishment of
the Union by law for any special purposes in any of the Colonies
shall be deemed to have been appropriated by Parliament for
the special purposes for which they have been provided.
122. Crown lands, public works, and all property through-
out the Union, movable, or immovable, and all rights of what-
ever description belonging to the several Colonies at the
548 THE UNION
establishment of the Union, shall vest in the Governor-General
in Council subject to any debt or liability specifically charged
thereon.
123. All rights in and to mines and minerals, and all rights
in connection with the searching for, working for, or disposing
of, minerals or precious stones, which at the establishment of
the Union are vested in the Government of any of the Colonies,
shall on such establishment vest in the Governor-General in
Council.
124. The Union shall assume all debts and liabilities of
the Colonies existing at its establishment, subject, notwith-
standing any other provision contained in this Act, to the
conditions imposed by any law under which such debts or
liabilities were raised or incurred, and without prejudice to
any rights of security or priority in respect of the payment of
principal, interest, sinking fund, and other charges conferred
on the creditors of any of the Colonies, and may, subject to
such conditions and rights, convert, renew, or consolidate such
debts.
125. All ports, harbours, and railways belonging to the
several Colonies at the establishment of the Union shall from
the date thereof vest in the Governor-General in Council. No
railway for the conveyance of public traffic, and no port,
harbour, or similar work, shall be constructed without the
sanction of Parliament.
126. Subject to the authority of the Governor- General in
Council, the control and management of the railways, ports,
and harbours of the Union shall be exercised through a board
consisting of not more than three commissioners, who shall be
appointed by the Governor- General in Council, and a minister
of State, who shall be chairman. Each commissioner shall
hold office for a period of five years, but may be reappointed.
He shall not be removed before the expiration of his period pf
appointment, except by the Governor-General in Council for
cause assigned, which shall be communicated by message to
both Houses of Parliament within one week after the removal,
if Parliament be then sitting, or, if Parliament be not sitting,
then within one week after the commencement of the next
ensuing session. The salaries of the commissioners shall be
fixed by Parliament and shall not be reduced during their
respective terms of office.
127. The railways, ports, and harbours of the Union shall
be administered on business principles, due regard being had
to agricultural and industrial development within the Union
and promotion, by means of cheap transport, of the settlement
of an agricultural and industrial population in the inland
portions of all provinces of the Union. So far as may be, the
SOUTH AFRICA ACT, 1909 549
total earnings shall be not more than are sufficient to meet
the necessary outlays for working, maintenance, betterment,
depreciation, and the payment of interest due on capital not
being capital contributed out of railway or harbour revenue,
and not including any sums payable out of the Consolidated
Revenue Fund in accordance with the provisions of sections
one hundred and thirty and one hundred and thirty-one. The
amount of interest due on such capital invested shall be paid
over from the Railway and Harbour Fund into the Consolidated
Revenue Fund. The Governor-General hi Council shall give
effect to the provisions of this section as soon as and at such
time as the necessary administrative and financial arrange-
ments can be made, but in any case shall give full effect to
them before the expiration of four years from the establishment
of the Union. During such period, if the revenues accruing
to the Consolidated Revenue Fund are insufficient to provide
for the general service of the Union, and if the earnings accruing
to the Railway and Harbour Fund are in excess of the outlays
specified herein, Parliament may by law appropriate such ex-
cess or any part thereof towards the general expenditure of
the Union, and all sums so appropriated shall be paid over to
the Consolidated Revenue Fund.
128. Notwithstanding anything to the contrary in the last
preceding section, the Board may establish a fund out of
railway and harbour revenue to be used for maintaining, as
far as may be, uniformity of rates notwithstanding fluctuations
in traffic.
129. All balances standing to the credit of any fund estab-
lished in any of the Colonies for railway or harbour purposes at
the establishment of the Union shall be under the sole control
and management of the Board, and shall be deemed to have
been appropriated by Parliament for the respective purposes
for which they have been provided.
130. Every proposal for the construction of any port or
harbour works or of any line of railway, before being sub-
mitted to Parliament, shall be considered by the Board, which
shall report thereon, and shall advise whether the proposed
works or line of railway should or should not be constructed.
If any such works or line shall be constructed contrary to the
advice of the Board, and if the Board is of opinion that the
revenue derived from the operation of such works or line will
be insufficient to meet the costs of working and maintenance,
and of interest on the capital invested therein, it shall frame an
estimate of the annual loss which, in its opinion, will result
from such operation. Such estimate shall be examined by the
Controller and Auditor-General, and when approved by him
the amount thereof shall be paid over annually from the Con-
550 THE UNION
solidated Revenue Fund to the Railway and Harbour Fund ;
Provided that, if in any year the actual loss incurred, as calcu-
lated by the Board and certified by the Controller and Auditor-
General, is less than the estimate framed by the Board, the
amount paid over in respect of that year shall be reduced
accordingly so as not to exceed the actual loss incurred. In
calculating the loss arising from the operation of any such
work or line, the Board shall have regard to the value of any
contributions of traffic to other parts of the system which
may be due to the operation of such work or line.
131. If the Board shall be required by the Governor-General
in Council or under any Act of Parliament or resolution of
both Houses of Parliament to provide any services or facilities
either gratuitously or at a rate of charge which is insufficient
to meet the costs involved in the provision of such services or
facilities, the Board shall at the end of each financial year
present to Parliament an account approved by the Controller
and Auditor-General, showing, as nearly as can be ascertained,
the amount of the loss incurred by reason of the provision of
such services and facilities, and such amount shall be paid out
of the Consolidated Revenue Fund to the Railway and Harbour
Fund.
132. The Governor-General in Council shall appoint a
Controller and Auditor-General who shall hold office during
good behaviour : provided that he shall be removed by the
Governor-General in Council on an address praying for such
removal presented to the Governor-General by both Houses of
Parliament : provided further that when Parliament is not in
session the Governor-General in Council may suspend such
officer on the ground of incompetence or misbehaviour ; and,
when and so often as such suspension shall take place, a full
statement of the circumstances shall be laid before both Houses
of Parliament within fourteen days after the commencement of
its next session ; and, if an address shall at any time during
the session of Parliament be presented to the Governor-General
by both Houses praying for the restoration to office of such
officer, he shall be restored accordingly ; and if no such address
be presented the Governor-General shall confirm such suspension
and shall declare the office of Controller and Auditor-General
to be, and it shall thereupon become, vacant. Until Parlia-
ment shall otherwise provide, the Controller and Auditor-
General shall exercise such powers and functions and under-
take such duties as may be assigned to him by the Governor-
General in Council by regulations framed in that behalf.
133. In order to compensate Pietermaritzburg and Bloem-
fontein for any loss sustained by them in the form of diminu-
tion of prosperity or decreased rateable value by reason of
551
their ceasing to be the seats of government of their respective
colonies, there shall be paid from the Consolidated Revenue
Fund for a period not exceeding twenty-five years to the
municipal councils of such towns a grant of two per centum per
annum on their municipal debts, as existing on the thirty-first
day of January nineteen hundred and nine, and as ascertained
by the Controller and Auditor-General. The Commission
appointed under section one hundred and eighteen shall, after
due inquiry, report to the Governor-General in Council what
compensation should be paid to the municipal councils of Cape
Town and Pretoria for the losses, if any, similarly sustained by
them. Such compensation shall be paid out of the Consoli-
dated Revenue Fund for a period not exceeding twenty-five
years, and shall not exceed one per centum per annum on the
respective municipal debts of such towns as existing on the
thirty-first January nineteen hundred and nine, and as ascer-
tained by the Controller and Auditor-General. For the pur-
poses of this section Cape Town shall be deemed to include the
municipalities of Cape Town, Green Point, and Sea Point,
Woodstock, Mowbray, and Rondebosch, Claremont, and
Wynberg, and any grant made to Cape Town shall be payable
to the councils of such municipalities in proportion to their
respective debts. One half of any such grants shall be applied
to the redemption of the municipal debts of such towns re-
spectively. At any time after the tenth annual grant has been
paid to any of such towns the Governor-General in Council,
with the approval of Parliament, may after due inquiry with-
draw or reduce the grant to such town.
VIII. GENERAL.
134. The election of senators and of members of
executive committees of the provincial councils as provided
in this Act shall, whenever such election is contested, be accord-
ing to the principle of proportional representation, each voter
having one transferable vote. The Governor-General in Council,
or, in the case of the first election of the Senate, the Governor
in Council of each of the Colonies, shall frame regulations pre-
scribing the method of voting and of transferring and counting
votes and the duties of returning officers in connection there-
with, and such regulations or any amendments thereof after
being duly promulgated shall have full force and effect unless
and until Parliament shall otherwise provide.
135. Subject to the provisions of this Act, all laws in force
in the several Colonies at the establishment of the Union shall
continue in force in the respective provinces until repealed or
amended by Parliament, or by the provincial councils in matters
in respect of which the power to make ordinances is reserved
552 THE UNION
or delegated to them. All legal commissions in the several
Colonies at the establishment of the Union shall continue as if
the Union had not been established.
136. There shall be free trade throughout the Union, but
until Parliament otherwise provides the duties of custom and
of excise leviable under the laws existing in any of the Colonies
at the establishment of the Union shall remain in force.
137. Both the English and Dutch languages shall be official
languages of the Union, and shall be treated on a footing of
equality, and possess and enjoy equal freedom, rights, and
privileges ; all records, journals, and proceedings of Parlia-
ment shall be kept in both languages, and all Bills, Acts, and
notices of general public importance or interest issued by the
Government of the Union shall be in both languages.
138. All persons who have been naturalised in any of the
Colonies shall be deemed to be naturalised throughout the Union.
139. The administration of justice throughout the Union
shall be under the control of a minister of State, in whom shall
be vested all powers, authorities, and” functions which shall
at the establishment of the Union be vested in the Attorneys-
General of the Colonies, save and except all powers, authorities,
and functions relating to the prosecution of crimes and offences,
which shall in each province be vested in an officer to be
appointed by the Governor-General in Council, and styled the
Attorney-General of the province, who shall also discharge
such other duties as may be assigned to him by the Governor-
General in Council : Provided that in the province of the Cape
of Good Hope the Solicitor-General for the Eastern Districts
and the Crown Prosecutor for Griqualand West shall re-
spectively continue to exercise the powers and duties by law
vested in them at the time of the establishment of the Union.
140. Subject to the provisions of the next succeeding
section, all officers of the public service of the Colonies shall
at the establishment of the Union become officers of the Union.
141. (i) As soon as possible after the establishment of
the Union, the Governor-General in Council shall appoint a
public service commission to make recommendations for such
reorganisation and readjustment of the departments of the
public service as may be necessary. The commission shall
also make recommendations in regard to the assignment of
officers to the several provinces.
(2) The Governor-General in Council may after such com-
mission has reported assign from time to time to each province
such officers as may be necessary for the proper discharge of
the services reserved or delegated to it, and such officers on
being so assigned shall become officers of the province.
Pending the assignment of such officers, the Governor-General
SOUTH AFRICA ACT, 1909 553
in Council may place at the disposal of the provinces the
services of such officers of the Union as may be necessary.
(3) The provisions of this section shall not apply to any
service or department under the control of the Railway and Har-
bour Board, or to any person holding office under the Board.
142. After the establishment of the Union the Governor-
General in Council shall appoint a permanent public service
commission with such powers and duties relating to the
appointment, discipline, retirement, and superannuation of
public officers as Parliament shall determine.
143. Any officer of the public service of any .of the Colonies
at the establishment of the Union who is not retained in the
service of the Union or assigned to that of a province shall be
entitled to receive such pension, gratuity, or other compensation
as he would have received in like circumstances if the Union
had not been established.
144. Any officer of the public service of any of the Colonies
at the establishment of the Union who is retained in the
service of the Union or assigned to that of a province shall
retain all his existing and accruing rights, and shall be entitled
to retire from the service at the time at which he would have
been entitled by law to retire, and on the pension or retiring
allowance to which he would have been entitled by law in
like circumstances if the Union had not been established.
145. The services of officers in the public service of any
of the Colonies at the establishment of the Union shall not be
dispensed with by reason of their want of knowledge of either
the English or Dutch language.
146. Any permanent officer of the Legislature of any of the
Colonies who is not retained in the service of the Union, or as-
signed to that of any province, and for whom no provision shall
have been made by such Legislature, shall be entitled to such
pension, gratuity, or compensation as Parliament may determine.
147. The control and administration of native affairs and
of matters specially or differentially affecting Asiatics through-
out the Union shall vest in the Governor-General in Council,
who shall exercise all special powers in regard to native
administration hitherto vested in the Governors of the Colonies
or exercised by them as supreme chiefs, and any lands vested
in the Governor or Governor and Executive Council of any
colony for the purpose of reserves for native locations shall
vest in the Governor-General in Council, who shall exercise all
special powers in relation to such reserves as may hitherto have
been exerciseableby any such Governor or Governor and Execu-
tive Council, and no lands set aside for the occupation of natives
which cannot at the establishment of the Union be alienated ex-
cept by an Act of the Colonial Legislature shall be alienated or
554 THE UNION
in any way diverted from the purposes for which they are set
apart except under the authority of an Act of Parliament.
148. (i) All rights and obligations under any conventions
or agreements which are binding on any of the Colonies shall
devolve upon the Union at its establishment.
(2) The provisions of the railway agreement between the
Governments of the Transvaal, the Cape of Good Hope and
Natal, dated the second of February, nineteen hundred and
nine, shall, as far as practicable, be given effect to by the
Government of the Union.
IX. NEW PROVINCES AND TERRITORIES.
149. Parliament may alter the boundaries of any province,
divide a province into two or more provinces, or form a new
province out of provinces within the Union, on the petition of
the provincial council of every province whose boundaries are
affected thereby.
150. The King, with the advice of the Privy Council, may
on addresses from the Houses of Parliament of the Union
admit into the Union the territories administered by the
British South Africa Company on such terms and conditions
as to representation and otherwise in each case as are expressed
in the addresses and approved by the King, and the provisions
of any Order in Council in that behalf shall have effect as if
they had been enacted by the Parliament of the United
Kingdom of Great Britain and Ireland.
151. The King, with the advice of the Privy Council, may,
on addresses from the Houses of Parliament of the Union,
transfer to the Union the government of any territories, other
than the territories administered by the British South Africa
Company, belonging to or under the protection of His Majesty,
and inhabited wholly or in part by natives, and upon such
transfer the Governor-General in Council may undertake the
government of such territory upon the terms and conditions
embodied in the Schedule to this Act.
X. AMENDMENT OF ACT.
152. Parliament may by law repeal or alter any of the
provisions of this Act : Provided that no provision thereof,
for the operation of which a definite period of time is pre-
scribed, shall during such period be repealed or altered : And
provided further that no repeal or alteration of the provisions
contained in this section, or in sections thirty-three and thirty-
four (until the number of members of the House of Assembly has
reached the limit therein prescribed, or until a period of ten
years has elapsed after the establishment of the Union, whichever
is the longer period), or in sections thirty-five and one hundred
SOUTH AFRICA ACT, 1909 555
and thirty-seven, shall be valid unless the Bill embodying such
repeal or alteration shall be passed by both Houses of Parlia-
ment sitting together, and at the third reading be agreed to by
not less than two-thirds of the total number of members of
both Houses. A Bill so passed at such joint sitting shall be
taken to have been duly passed by both Houses of Parliament.
SCHEDULE.
1. After the transfer of the government of any territory
belonging to or under the protection of His Majesty, the
Governor-General in Council shall be the legislative authority,
and may by proclamation make laws for the peace, order,
and good government of such territory : Provided that all
such laws shall be laid before both Houses of Parliament within
seven days after the issue of the proclamation or, if Parliament
be not then sitting, within seven days after the beginning of
the next session, and shall be effectual unless and until both
Houses of Parliament shall by resolutions passed in the same
session request the Governor-General in Council to repeal the
same, in which case they shall be repealed by proclamation.
2. The Prime Minister shall be charged with the administra-
tion of any territory thus transferred, and he shall be advised
in the general conduct of such administration by a commission
consisting of not fewer than three members with a secretary, to
be appointed by the Governor- General in Council, who shall
take the instructions of the Prime Minister in conducting all
correspondence relating to the territories, and shall also under
the like control have custody of all official papers relating to
the territories.
3. The members of the commission shall be appointed by
the Governor- General in Council, and shall be entitled to hold
office for a period of ten years, but such period may be extended
to successive further terms of five years. They shall each be
entitled to a fixed annual salary, which shall not be reduced
during the continuance of their terms of office, and they shall
not be removed from office except upon addresses from both
Houses of Parliament passed in the same session praying for
such removal. They shall not be qualified to become, or to
be, members of either House of Parliament. One of the
members of the commission shall be appointed by the Governor-
General in Council as vice-chairman thereof. In case of the
absence, illness, or other incapacity of any member of the
commission, the Governor- General in Council may appoint
some other fit and proper person to act during such absence,
illness, or other incapacity.
4. It shall be the duty of the members of the commission
to advise the Prime Minister upon all matters relating to the
556 THE UNION
general conduct of the administration of, or the legislation for,
the said territories. The Prime Minister, or another minister
of State nominated by the Prime Minister to be his deputy for
a fixed period, or, failing such nomination, the vice-chairman
shall preside at all meetings of the commission, and in case
of an equality of votes shall have a casting vote. Two
members of the commission shall form a quorum. In case
the commission shall consist of four or more members, three
of them shall form a quorum.
5. Any member of the commission who dissents from the
decision of a majority shall be entitled to have the reasons for
his dissent recorded in the minutes of the commission.
6. The members of the commission shall have access to all
official papers concerning the territories, and they may deliber-
ate on any matter relating thereto and tender their advice
thereon to the Prime Minister.
7. Before coming to a decision on any matter relating
either to the administration, other than routine, of the terri-
tories or to legislation therefor, the Prime Minister shall cause
the papers relating to such matter to be deposited with the
secretary to the commission, and shall convene a meeting of
the commission for the purpose of obtaining its opinion on
such matter.
8. Where it appears to the. Prime Minister that the despatch
of any communication or the making of any order is urgently
required, the communication may be sent or order made,
although it has not been submitted to a meeting of the com-
mission or deposited for the perusal of the members thereof.
In any such case the Prime Minister shall record the reasons
for sending the communication or making the order and give
notice thereof to every member.
9. If the Prime Minister does not accept a recommendation
of the commission or proposes to take some action contrary to
their advice, he shall state his views to the commission, who
shall be at liberty to place on record the reasons in support of
their recommendation or advice. This record shall be laid
by the Prime Minister before the Governor- General in Council,
whose decision in the matter shall be final.
10. When the recommendations of the commission have
not been accepted by the Governor-General in Council, or
action not in accordance with their advice has been taken by
the Governor- General in Council, the Prime Minister, if there-
to requested by the commission, shall lay the record of their
dissent from the decision or action taken and of the reasons
therefor before both Houses of Parliament, unless in any case
the Governor-General in Council shall transmit to the com-
mission a minute recording his opinion that the publication of
SOUTH AFRICA ACT, 1909 557
such record and reasons would be gravely detrimental to the
public interest.
11. The Governor- General in Council shall appoint a
resident commissioner for each territory, who shall, in addition
to such other duties as shall be imposed on him, prepare the
annual estimates of revenue and expenditure for such territory,
and forward the same to the secretary to the commission for
the consideration of the commission and of the Prime Minister.
A proclamation shall be issued by the Governor- General in
Council, giving to the provisions for revenue and expenditure
made in the estimates as finally approved by the Governor-
General in Council the force of law.
12. There shall be paid into the Treasury of the Union all
duties of customs levied on dutiable articles imported into
and consumed in the territories, and there shall be paid out of
the Treasury annually towards the cost of administration of
each territory a sum in respect of such duties which shall bear
to the total customs revenue of the Union in respect of each
financial year the same proportion as the average amount of
the customs revenue of such territory for the three completed
financial years last preceding the taking effect of this Act bore
to the average amount of the whole customs revenue for all
the Colonies and territories included in the Union received
during the same period.
13. If the revenue of any territory for any financial year
shall be insufficient to meet the expenditure thereof, any
amount required to make good the deficiency may, with the
approval of the Governor-General in Council, and on such terms
and conditions and in such manner as with the like approval
may be directed or prescribed, be advanced from the funds
of any other territory. In default of any such arrangement,
the amount required to make good any such deficiency shall be
advanced by the Government of the Union. In case there
shall be a surplus for any territory, such surplus shall in the
first instance be devoted to the repayment of any sums
previously advanced by any other territory or by the Union
Government to make good any deficiency in the revenue of
such territory.
14. It shall not be lawful to alienate any land in Basutoland
or any land forming part of the native reserves in the Bechuana-
land protectorate and Swaziland from the native tribes inhabit-
ing those territories.
15. The sale of intoxicating liquor to natives shall be pro-
hibited in the territories, and no provision giving facilities for
introducing, obtaining, or possessing such liquor in any part
of the territories less stringent than those existing at the time
of transfer shall be allowed.
558 THE UNION
16. The custom, where it exists, of holding pitsos or other
recognised forms of native assembly shall be maintained in
the territories.
17. No differential duties or imposts on the produce of the
territories shall be levied. The laws of the Union relating to
customs and excise shall be made to apply to the territories.
18. There shall be free intercourse for the inhabitants of the
territories with the rest of South Africa subject to the laws,
including the pass laws, of the Union.
19. Subject to the provisions of this Schedule, all revenues
derived from any territory shall be expended for and on behalf
of such territory : Provided that the Governor-General in
Council may make special provision for the appropriation of a
portion of such revenue as a contribution towards the cost of
defence and other services performed by the Union for the
benefit of the whole of South Africa, so, however, that that
contribution shall not bear a higher proportion to the total cost
of such services than that which the amount payable under
paragraph 12 of this Schedule from the Treasury of the Union
towards the cost of the administration of the territory bears
to the total customs revenue of the Union on the average of
the three years immediately preceding the year for which the
contribution is made.
20. The King may disallow any law made by the Governor-
General in Council by proclamation for any territory within
one year from the date of the proclamation, and such iisallow-
ance on being made known by the Governor-General by pro-
clamation shall annul the law from the day when the disallow-
ance is so made known.
21. The members of the commission shall be entitled to such
pensions or superannuation allowances as the Governor-
General in Council shall by proclamation provide, and the
salaries and pensions of such members and all other expenses
of the commission shall be borne by the territories in the
proportion of their respective revenues.
22. The rights as existing at the date of transfer of officers
of the public service employed in any territory shall remain in
force.
23. Where any appeal may by law be made to the King in
Council from any court of the territories, such appeal shall,
subject to the provisions of this Act, be made to the Appellate
Division of the Supreme Court of South Africa.
24. The Commission shall prepare an annual report on the
territories, which shall, when approved by the Governor-
General in Council, be laid before both Houses of Parliament.
25. All bills to amend or alter the provisions of this Schedule
shall be reserved for the signification of His Majesty’s pleasure.
APPENDIX A.
No. 236. CHARTER OF THE BRITISH SOUTH AFRICA
COMPANY. [29 Oct. 1889.]
VICTORIA, by the Grace of God, of the United Kingdom of Great
Britain and Ireland, Queen, Defender of the Faith.
To all whom these presents shall come, greeting.
WHEREAS a Humble Petition has been presented to Us in Our
Council by the Most Noble James, Duke of Abercorn, . . . ; the Most
Noble Alexander William George, Duke of Fife, . . . ; the Right
Honourable Edric Frederick, Lord Gifford, V.C. ; Cecil John Rhodes,
of Kimberley, in the Cape Colony, Member of the Executive Council,
and of the House of Assembly of the Colony of the Cape of Good Hope ;
Alfred Beit, of 29 Holborn Viaduct, London, merchant ; Albert Henry
George Grey, of Howick, Northumberland, Esquire; and George Caw-
ston, of 1 8 Lennox Gardens, London, Esquire, Barrister-at-Law.
And whereas the said Petition states amongst other things :
That the Petitioners and others are associated for the purpose of
forming a Company or Association, to be incorporated, if to Us should
seem fit, for the objects in the said Petition set forth, under the corporate
name of The British South Africa Company.
That the existence of a powerful British company, controlled by
those of Our subjects in whom We have confidence, and having its
principal field of operations in that region of South Africa lying to the
North of Bechuanaland and to the west of Portuguese East Africa,
would be advantageous to the commercial and other interests of Our
subjects in the United Kingdom and in Our Colonies.
That the Petitioners desire to carry into effect divers concessions
and agreements which have been made by certain of the chiefs and
tribes inhabiting the said region, and such other concessions, agree-
ments, grants, and treaties as the Petitioners may hereafter obtain
within the said region or elsewhere in Africa, with the view of promot-
ing trade, commerce, civilisation, and good government (including the
regulation of liquor traffic with the natives) in the territories which are
or may be comprised, or referred to in such concessions, agreements,
grants, and treaties as aforesaid.
That the Petitioners believe that if the said concessions, agree-
ments, grants, and treaties can be carried into effect, the condition of the
natives inhabiting the said territories will be materially improved and
their civilisation advanced, and an organisation established which
will tend to the suppression of the slave trade in the said territories,
and to the opening up of the said territories to the immigration of
Europeans, and to the lawful trade and commerce of Our subjects and
of other nations.
That the success of the enterprise in which the Petitioners are
engaged would be greatly advanced if it should seem fit to Us to grant
them Our Royal Charter of incorporation as a British Company under
the said name or title, or such other name or title, and with such powers,
559
560 SELECT DOCUMENTS
as to Us may seem fit for the purpose of more effectually carrying into
effect the objects aforesaid.
That large sums of money have been subscribed for the purpose
of the intended Company by the Petitioners and others, who are pre-
pared also to subscribe or to procure such further sums as may here-
after be found requisite for the development of the said enterprise, in
the event of Our being pleased to grant to them Our Royal Charter
of incorporation as aforesaid.
Now, therefore We, having taken the said Petition into Our Royal
consideration in Our Council and being satisfied that the intentions of
the Petitioners are praiseworthy and deserve encouragement and that
the enterprise in the Petition described may be productive of the
benefits set forth therein, by Our Prerogative Royal and of Our especial
grace, certain knowledge, and mere motion, have constituted, erected,
and incorporated, and by this Our Charter for Us and Our Heirs and
Royal successors do constitute, erect, and incorporate into one body
politic and corporate by the name of The British South Africa Company,
the said James Duke of Abercorn, Alexander William George Duke of
Fife, Edric Frederick Lord Gifford, Cecil John Rhodes, Alfred Beit,
Albert Henry George Grey, and George Cawston, and such other persons
and such bodies as from time to time become and are members of the
body politic and corporate by these presents constituted, erected, and
incorporated, with perpetual succession and a common seal, with
power to break, alter, or renew the same at discretion and with the
further authorities, powers, and privileges conferred, and subject to the
conditions imposed by this Our Charter : And We do hereby accordingly
will, ordain, give, grant, constitute, appoint, and declare as follows
(that is to say)- :
I. The principal field of the operations of The British South Africa
Company (in this our Charter referred to as ” the Company “) shall be
the region of South Africa lying immediately to the north of British
Bechuanaland, and to the north and west of the South African Re-
public, and to the west of the Portuguese Dominions.
II. The Company is hereby authorised and empowered to hold,
use, and retain for the purposes of the Company and on the terms of
this Our Charter, the full benefit of the concessions and agreements
made as aforesaid, so far as they are valid, or any of them, and all
interests, authorities, and powers comprised or referred to in the said
concessions and agreements. Provided always that nothing herein
contained shall prejudice or affect any other valid and subsisting con-
cessions or agreements which may have been made by any of the chiefs
or tribes aforesaid, and in particular that nothing herein contained shall
prejudice or affect certain concessions granted in and subsequent to
the year 1880 relating to the territory usually known as the district of
the Tati ; nor shall anything herein contained be construed as giving
any jurisdiction, administrative or otherwise, within the said district
of the Tati, the limits of which district are as follows, viz., from the
place where the Shasi River rises to its junction with the Tati and
Ramaquaban Rivers, thence along the Ramaquaban River to where it
rises and thence along the watershed of those Rivers.
III. The Company is hereby further authorised and empowered,
subject to the approval of one of Our Principal Secretaries of State
(herein referred to as ” Our Secretary of State “) from time to time, to
acquire by any concession, agreement, grant, or treaty, all or any rights,
interests, authorities, jurisdictions, and powers of any kind or nature
whatever, including powers necessary for the purposes of government
and the preservation of public order in or for the protectionjof terrl-
APPENDIX A 561
tories, lands, or property, comprised or referred to in the concessions
and agreements made as aforesaid or affecting other territories, lands,
or property in Africa, or the inhabitants thereof, and to hold, use, and
exercise such territories, lands, property, rights, interests, authorities,
jurisdictions, and powers respectively for the purpose of the Company
and on the terms of this Our Charter.
IV. Provided that no powers of government or administration shall
be exercised under or in relation to any such last-mentioned concession,
agreement, grant, or treaty, until a copy of such concession [etc.]
in such form and with such maps or particulars as Our Secretary of
State approves, verified as he requires, has been transmitted to him,
and he has signified his approval thereof either absolutely or subject
to any conditions or reservations ; and provided also that no rights,
interests, authorities, jurisdictions, or powers of any description shall
be acquired by the Company within the said district of the Tati as
hereinbefore described, without the previous consent in writing of the
owners for the time being of the concessions above referred to relating
to the said district, and the approval of Our Secretary of State.
V. The Company shall be bound by and shall fulfil all and singular
the stipulations on its part contained in any such concession, agree-
ment, grant, or treaty as aforesaid, subject to any subsequent agree-
ment affecting those stipulations approved by Our Secretary of State.
VI. The Company shall always be and remain British in character
and domicile, and shall have its principal office in Great Britain, and the
Company’s principal representative in South Africa and the Directors
shall always be natural-born British subjects or persons who have been
naturalised as British subjects by or under an Act of Parliament of
Our United Kingdom ; but this Article shall not disqualify any person
nominated a Director by this Our Charter, or any person whose Election
as a Director shall have been approved by Our Secretary of State, from
acting in that capacity.
VII. In case at any time any difference arises between any chief or
tribe inhabiting any of the territories aforesaid and the Company, the
difference shall, if Our Secretary of State so require, be submitted by
the Company to him for his decision, and the Company shall act in
accordance with such decision.
VIII. If at any time Our Secretary of State thinks fit to dissent
from or object to any of the dealings of the Company with any foreign
power, and to make known to the Company any suggestion founded on
that dissent or objection, the Company shall act in accordance with
such suggestion.
IX. If at any time Our Secretary of State thinks fit to object to the
exercise by the Company of any authority, power, or right within any
part of the territories aforesaid, on the ground of there being an adverse
claim to or in respect of that part, the Company shall defer to that
objection until such time as any such claim has been withdrawn or
finally dealt with or settled by Our Secretary of State.
X. The Company shall, to the best of its ability, preserve peace
and order in such ways and manners as it shall consider necessary, and
may with that object make ordinances (to be approved by Our Secre-
tary of State), and may establish and maintain a force of police.
XI. The Company shall, to the best of its ability, discourage and,
so far as may be practicable, abolish by degrees, any system of slave
trade or domestic servitude in the territories aforesaid.
XII. The Company shall regulate the traffic in spirits and other
intoxicating liquors within the territories aforesaid, so as, as far as
36
562 SELECT DOCUMENTS
practicable, to prevent the sale of any spirits or other intoxicating
liquor to any natives.
XIII. The Company as such, or its officers as such, shall not in any
way interfere with the religion of any class or tribe of the peoples of
the territories aforesaid, or of any of the inhabitants thereof, except so
far as may be necessary in the interests of humanity, and all forms of
religious worship or religious ordinances may be exercised within the
said territories and no hindrance shall be offered thereto except as
aforesaid.
XIV. In the administration of justice to the said peoples or in-
habitants, careful regard shall always be had to the customs and laws
of the class or tribe or nation to which the parties respectively belong,
especially with respect to the holding, possession, transfer, and disposi-
tion of lands and goods and testate or intestate succession thereto, and
marriage, divorce, and legitimacy and other rights of property and
personal rights, but subject to any British laws which may be in force
in any of the territories aforesaid, and applicable to the people or in-
habitants thereof.
XV. If at any time Our Secretary of State thinks fit to dissent
from or object to any part of the proceedings or system of the Company
relative to the peoples of the territories aforesaid, or to any of the
inhabitants thereof, in respect of slavery or religion or the administra-
tion of justice, or any other matter, he shall make known to the Com-
pany his dissent or objection, and the Company shall act in accordance
with his directions duly signified.
XVI. In the event of the Company acquiring any harbour or
harbours, the Company shall freely afford all facilities for or to Our
ships therein without payment, except reasonable charges for work
done or services rendered or materials or things supplied.
XVII. The Company shall furnish annually to Our Secretary of
State, as soon as conveniently may be after the close of the financial
year, accounts of its expenditure for administrative purposes, and of all
sums received by it by way of public revenue, as distinguished from its
commercial profits, during the financial year, together with a report
as to its public proceedings and the condition of the territories within
the sphere of its operations. The Company shall also on or before the
commencement of each financial year furnish to Our Secretary of State
an estimate of its expenditure for administrative purposes, and of its
public revenue (as above defined) for the ensuing year. The Company
shall in addition from time to time furnish to our Secretary of State
any reports, accounts, or information which he may require to be fur-
nished.
XVIII. The several officers of the Company shall, subject to the
rules of official subordination, and to any regulations that may be
agreed upon, communicate freely with Our High Commissioner in
South Africa, and any others Our officers, who may be stationed within
any of the territories aforesaid, and shall pay due regard to any require-
ments, suggestions, or requests which the said High Commissioner
or other officers shall make to them or any of them, and the Company
shall be bound to enforce the observance of this article.
XIX. The Company may hoist and use on its buildings and else-
where in the territories aforesaid, and on its vessels, such distinctive
flag indicating the British character of the Company as Our Secretary
of State and the Lords Commissioners of the Admiralty shall from time
to time approve.
XX. Nothing in this Our Charter shall be deemed to authorise
the Company to set up or grant any monopoly of trade ; provided that
APPENDIX A 563
the establishment of or the grant of concessions for banks, railways,
tramways, docks, telegraphs, waterworks, or other similar under-
takings or the establishment of any system of patent or copyright
approved by Our Secretary of State, shall not be deemed monopolies
for this purpose. The Company shall not, either directly or indirectly,
hinder any Company or persons who now are, or hereafter may be,
lawfully and peacefully carrying on any business, concern, or venture
within the said district of the Tati hereinbefore described, but shall, by
permitting and facilitating transit by every lawful means tc and from
the district of the Tati, across its own territories, or where it has juris-
diction in that behalf, and by all other reasonable and lawful means,
encourage, assist, and protect all British subjects who now are, or here-
after may be, lawfully and peacefully engaged in the prosecution of a
lawful enterprise within the said district of the Tati.
XXI. For the preservation of elephants and other game, the
Company may make such regulations and (notwithstanding anything
hereinbefore contained) may impose such licence duties on the killing
or taking of elephants or other game as they may see fit : Provided
that nothing in such regulations shall tend to diminish or interfere with
any hunting rights which may have been, or may hereafter be, reserved
to any native chiefs or tribes by treaty, save so far as any such
regulations may relate to the establishment and enforcement of a close
season.
XXII. The Company shall be subject to and shall perform and
undertake all the obligations contained in or undertaken by Ourselves
under any treaty, agreement, or arrangement between Ourselves and
any other State or Power whether already made or hereafter to be
made. In all matters relating to the observance of this article or to
the exercise within the Company’s territories for the time being of
any jurisdiction exercisable by Us under the Foreign Jurisdiction Acts,
the Company shall conform to and observe and carry out all such
directions as may from time to time be given in that behalf by Our
Secretary of State, and the Company shall appoint all necessary officers
to perform such duties, and shall provide such Courts and other re-
quisites as may from time to time be necessary for the administration
of justice.
XXIII. The original share capital of the Company shall be
i,ooo,ooo/., divided into 1,000,000 shares of i/. each.
XXIV. The Company is hereby further specially authorised and
empowered for the purposes of this Our Charter from time to time
(I.) To issue shares of different classes or descriptions, to increase
the share capital of the Company, and to borrow moneys by deben-
tures or other obligations.
(II.) To acquire and hold, and to charter or otherwise deal with,
steam vessels and other vessels.
(III.) To establish or authorise banking companies and other
companies and undertakings or associations of every description, for
purposes consistent with the provisions of this Our Charter.
(IV.) To make and maintain roads, railways, telegraphs, harbours,
and any other works which may tend to the development or improve-
ment of the territories of the Company.
(V.) To carry on mining and other industries, and to make con-
cessions of mining, forestal, or other rights.
(VI.) To improve, develop, clear, plant, irrigate, and cultivate any
lands included within the territories of the Company.
(VII.) To settle any such territories and lands as aforesaid, and
to aid and promote immigration.
564 SELECT DOCUMENTS
(VIII.) To grant lands for terms of years or in perpetuity, and
either absolutely, or by way of mortgage or otherwise.
(IX.) To make loans or contributions of money or money’s worth
for promoting any of the objects of the Company.
(X.) To acquire and hold personal property.
(XI.) To acquire and hold (without licence in mortmain or other
authority than this Our Charter) lands in the United Kingdom, not
exceeding five acres in all at any one time for the purposes of the offices
and business of the Company, and (subject to any local law) lands in
any of Our Colonies or Possessions and elsewhere, convenient for
carrying on the management of the affairs of the Company, and to
dispose from time to time of any such lands when not required for
that purpose.
(XII.) To carry on any lawful commerce, trade, pursuit, business,
operations, or dealing whatsoever in connection with the objects of the
Company.
(XIII.) To establish and maintain agencies in Our Colonies and
Possessions, and elsewhere.
(XIV.) To sue and be sued by the Company’s name of incorpora-
tion, as well in Our Courts in Our United Kingdom, or in Our Courts in
Our Colonies or Possessions, or in Our Courts in Foreign countries or
elsewhere.
(XV.) To do all lawful things, incidental or conducive to the exer-
cise or enjoyment of the rights, interests, authorities, and powers
of the Company in this Our Charter expressed or referred to, or any
of them.
XXV. Within one year after the date of this Our Charter, or such
extended period as may be certified by Our Secretary of State, there
shall be executed by the Members of the Company for the time being a
Deed of Settlement, providing so far as necessary for
(I.) The further definition of the objects and purposes of the
Company.
(II.) The classes or descriptions of shares into which the capital
of the Company is divided, and the calls to be made in respect thereof,
and the terms and conditions of membership of the Company.
(III.) The division and distribution of profits.
(IV.) General Meetings of the Company; the appointment by Our
Secretary of State (if so required by him) of an Official Director,
and the number, qualification, appointment, remuneration, rotation,
removal, and powers of Directors of the Company, and of other officers
of the Company.
(V.) The registration of Members of the Company, and the transfer
of shares in the capital of the Company.
(VI.) The preparation of annual accounts to be submitted to the
Members at a General Meeting.
(VII.) The audit of those accounts by independent auditors.
(VIII.) The making of byelaws.
(IX.) The making and using of official seals of the Company.
(X.) The constitution and regulation of Committees or Local
Boards of Management.
(XI.) The making and execution of supplementary Deeds of
Settlement.
(XII.) The winding up (in case of need) of the Company’s affairs.
(XIII.) The government and regulation of the Company and of
its affairs.
(XIV.) Any other matters usual or proper to be provided for in
respect of a chartered Company.
APPENDIX A 565
XXVI. The Deed of Settlement shall, before the execution thereof,
be submitted to and approved by the Lords of Our Council, and a
certificate of their approval thereof, signed by the Clerk of Our Council,
shall be endorsed on this Our Charter and be conclusive evidence of
such approval, and on the Deed of Settlement, and such Deed of Settle-
ment shall take effect from the date of such approval, and shall be
binding upon the Company, its members, officers, and servants, and
for all other purposes whatsoever.
XXVII. The provisions of the Deed of Settlement or of any supple-
mentary Deed for the time being in force, may be from time to time
repealed, varied, or added to by a supplementary Deed, made and
executed in such manner as the Deed of Settlement prescribes : Pro-
vided that the provisions of any such Deed relative to the Official
Director shall not be repealed, varied, or added to without the express
approval of Our Secretary of State.
XXVIII. The Members of the Company shall be individually liable
for the debts, contracts, engagements, and liabilities of the Company
to the extent only of the amount, if any, for the time being unpaid
on the shares held by them respectively.
XXIX. Until such Deed of Settlement as aforesaid takes effect
the said James, Duke of Abercorn, shall be the President ; the said
Alexander William George, Duke of Fife, shall be Vice- President ; and
the said Edric Frederick, Lord Gifford, Cecil John Rhodes, Alfred Beit,
Albert Henry George Grey, and George Cawston shall be the Directors
of the Company ; and may on behalf of the Company do all things
necessary or proper to be done under this Our Charter by or on behalf
of the Company : Provided always that, notwithstanding anything
contained in the Deed of Settlement of the Company, the said James,
Duke of Abercorn, Alexander William George, Duke of Fife, and Albert
Henry George Grey, shall not be subject to retire from office in ac-
cordance with its provisions, but shall be and remain Directors of
the Company until death, incapacity to act, or resignation, as the case
may be.
XXX. And We do further will, ordain, and declare that this Our
Charter shall be acknowledged by Our Governors and Our naval and
military officers and Our consuls, and Our other officers in Our Colonies
and Possessions, and on the high seas, and elsewhere, and they shall
severally give full force and effect to this Our Charter, and shall recog-
nise and be in all things aiding to the Company and its officers.
XXXI. And We do further will, ordain, and declare that this Our
Charter shall betaken, construed, and adjudged in the most favourable
and beneficial sense for, and to the best advantage of the Company, as
well in Our Courts as in Our United Kingdom, and in Our Courts in
Our Colonies and Possessions, and in Our Courts in Foreign countries
or elsewhere, notwithstanding that there may appear to be in this Our
Charter any non-recital, mis-recital, uncertainty, or imperfection.
XXXII. And We do further will, ordain, and declare that this
Our Charter shall subsist and continue valid, notwithstanding any
lawful change in the name of the Company or in the Deed of Settle-
ment thereof, such change being made with the previous approval
of Our Secretary of State signified under his hand.
XXXIII. And We do further will, ordain, and declare that it shall
be lawful for Us, Our heirs and successors, and We do hereby expressly
reserve to Ourselves, Our heirs and successors, the right and power
by writing under the General Seal of the United Kingdom at the end
of 25 years from the date of this Our Charter, and at the end of every
succeeding period of 10 years, to add, to alter, or repeal any of the
566 SELECT DOCUMENTS
provisions of this Our Charter, or to enact other provisions in substitu-
tion for or in addition to any of its existing provisions : Provided that
the right and power thus reserved shall be exercised only in relation
to so much of this Our Charter as relates to administrative and public
matters. And We do further expressly reserve to Ourselves, Our heirs
and successors, the right to take over any buildings or works belonging
to the Company, and used exclusively or mainly for administrative
or public purposes, on payment to the Company of such reasonable
compensation as may be agreed, or as, failing agreement, may be
settled by the Commissioners of Our Treasury. And We do further
appoint, direct, and declare that any such writing under the said Great
Seal shall have full effect and be binding upon the Company, its
members, officers, and servants, and all other persons, and shall be of
the same force, effect, and validity as if its provisions had been part of
and contained in these presents.
XXXIV. Provided always, and We do further declare that nothing
in this Our Charter shall be deemed or taken in anywise to limit or
restrict the exercise of any of Our rights or powers with reference to
the protection of any territories or with reference to the government
thereof, should We see fit to include the same within Our dominions.
XXXV. And We do lastly will, ordain, and declare, without pre-
judice to any power to repeal this Our Charter by law belonging to Us,
Our heirs and successors, or to any of Our courts, ministers, or officers
independently of this present declaration and reservation, that in case
at any time it is made to appear to Us in Our Council that the Company
has substantially failed to observe and conform to the provisions of
this Our Charter, or that the Company is not exercising its powers
under the concessions, agreements, grants, and treaties aforesaid, so
as to advance the interests which the Petitioners have represented to
Us to be likely to be advanced by the grant of this Our Charter, it
shall be lawful for Us, Our heirs and successors, and We do hereby ex-
pressly reserve and take to Ourselves, Our heirs and successors, the
right and power by writing under the Great Seal of Our United King-
dom to revoke this Our Charter, and to revoke and annul the privileges,
powers, and rights thereby granted to the Company. 1
In Witness whereof, We have caused these Our Letters to be made
patent.
(L.S.) MUIR MACKENZIE.
S. African Treaties, Conventions, etc., presented
to the Cape Parl. 1898, p. 358.
1 Cf. art. 150 of the South Africa Act, 1909, p. 554, above.
APPENDIX B.
BRITISH AND GERMAN SPHERES IN THE SUB-CONTINENT
OF AFRICA.
No. 237. Agreement between the BRITISH AND GERMAN GOVERNMENTS,
respecting Africa and Heligoland. BERLIN, ist July 1890.
The Undersigned, Sir Edward Baldwin Malet, Her Britannic
Majesty’s Ambassador Extraordinary and Plenipotentiary ; Sir
Henry Percy Anderson, Chief of the African Department of Her
Majesty’s Foreign Office ; The Chancellor of the German Empire,
General von Caprivi ; The Privy Councillor in the Foreign Office,
Dr. Krauel,
Have, after discussion of various questions affecting the Colonial
interests of Germany and Great Britain, come to the following Agree-
ment on behalf of their respective Governments :
EAST AFRICA. GERMAN SPHERE OF INFLUENCE.
ART. I. In East Africa the sphere in which the exercise of influence
is reserved to Germany is bounded
1. To the north by a line which, commencing on the coast at the
north bank of the mouth of the River Umba [or Wanga], runs direct
to Lake Jipe ; passes thence along the eastern side and round the
northern side of the lake, and crosses the River Lume ; after which
it passes midway between the territories of Taveita and Chagga,
skirts the northern base of the Kilimanjaro range, and thence is drawn
direct to the point on the eastern side of Lake Victoria Nyanza which
is intersected by the ist parallel of south latitude ; thence, crossing
the lake on that parallel, it follows the parallel to the frontier of the
Congo Free State, where it terminates.
It is, however, understood that, on the west side of the lake, the
sphere does not comprise Mount Mfumbiro ; if that mountain shall
prove to lie to the south of the selected parallel, the line shall be
deflected so as to exclude it, but shall, nevertheless, return so as to
terminate at the above-named point.
2. To the south by a line which, starting on the coast at the
northern limit of the Province of Mozambique, follows the course
of the River Rovuma to the point of confluence of the Msinje ; thence
it runs westward along the parallel of that point till it reaches Lake
Nyassa ; thence striking northward, it follows the eastern, northern,
and western shores of the lake to the northern bank of the mouth of
the River Songwe ; it ascends that river to the point of its intersection
by the 33rd degree of east longitude ; thence it follows the river to
the point where it approaches most nearly the boundary of the geo-
graphical Congo Basin defined in the ist Article of the Act of Berlin
as marked in the map attached to the gih Protocol of the Conference. l
From that point it strikes direct to the above-named boundary ;
and follows it to the point of its intersection by the 32nd degree of
1 For map see Hertslet’s Map of Africa by Treaty, vol. ii., to face p. 643.
567
568 SELECT DOCUMENTS
east longitude ; from which point it strikes direct to the point of con-
fluence of the northern and southern branches of the River Kilambo,
and thence follows that river till it enters Lake Tanganyika.
The course of the above boundary is traced in general accordance
with a map of the Nyassa-Tanganyika Plateau, officially prepared
for the British Government in iSSg. 1
3. To the west by a line which, from the mouth of the River
Kilambo to the ist parallel of south latitude, is conterminous with
the Congo Free State.
EAST AFRICA. BRITISH SPHERE OF INFLUENCE.
The sphere in which the exercise of influence is preserved to Great
Britain is bounded
1. To the south by the above-mentioned line running from the
mouth of the River Umba (or Wanga) to the point where the ist
parallel of south latitude reaches the Congo Free State.
Mount Mfumbiro is included in the sphere.
2. To the north by a line commencing on the coast at the north
bank of the mouth of the River Juba ; thence it ascends that bank
of the river and is conterminous with the territory reserved to the
influence of Italy in Gallaland and Abyssinia, as far as the confines
of Egypt.
3. To the west by the Congo Free State, and by the western water-
shed of the basin of the Upper Nile.
ART. II. [Withdrawal by Germany in favour of Great Britain of
protectorate over Witu.]
SOUTH-WEST AFRICA. GERMAN SPHERE OF INFLUENCE.
ART. III. In South- West Africa the sphere in which the exercise
of influence is reserved to Germany is bounded
f i . To the south by a line commencing at the mouth of the Orange
River, and ascending the north bank of that river to the point of its
intersection by the 2oth degree of east longitude.
2. To the east by a line commencing at the above-named point,
and following the 2Oth degree of east longitude to the point of its
intersection by the 22nd parallel of south latitude, it runs eastward
along that parallel to the point of its intersection by the 2 ist degree of
east longitude ; thence it follows that degree northward to the point
of its intersection by the i8th parallel of south latitude ; it runs east-
ward along that parallel till it reaches the River Chobe ; and descends
the centre of the main channel of that river to its junction with the
Zambesi, where it terminates.
It is understood that under this arrangement Germany shall have
free access from her Protectorate to the Zambesi by a strip of territory
which shall at no point be less than 20 English miles in width.
The sphere in which the exercise of influence is reserved to Great
Britain is bounded to the west and north-west by the above-mentioned
line.
It includes Lake Ngami.
The course of the above boundary is traced in general in accordance
with a map officially prepared for the British Government in 1889.
The delimitation of the southern boundary of the British territory
of Walfisch Bay * is reserved for arbitration, unless it shall be settled by
the consent of the two Powers within two years from the date of the
conclusion of this Agreement. The two Powers agree that, pending
1 For map see Hertslet’s Map of Africa by Treaty, vol. ii., to face p. 643.
Cl No. 41.
APPENDIX B 569
such settlement, the passage of the subjects and transit of goods of both
Powers through the territory now in dispute shall be free ; and the
treatment of their subjects in that territory shall be in all respect
equal. No dues shall be levied on goods in transit. Until a settle-
ment shall be effected the territory shall be considered neutral.
ART. IV. [Boundary between the British Gold Coast Colony and the
German Protectorate of Togo.]
ART V. [Freedom of goods from transit dues between River Benue
and Lake Chad.]
ART. VI. [Lines of demarcation traced above shall be subject to
rectification by agreement.]
ART. VII. The two Powers engage that neither will interfere with
any sphere of influence assigned to the other by Articles I. to IV. One
Power will not in the sphere of the other make acquisitions, conclude
Treaties, accept sovereign rights or Protectorates, nor hinder the
extension of influence of the other.
It is understood that no Companies nor individuals subject to one
Power can exercise sovereign rights in a sphere assigned to the other,
except with the assent of the latter.
ART. VIII. [Application of Berlin Act of 1885 in spheres of influence
within the limits of the free trade zone.]
ART. IX. Trading and mineral concessions, and rights to real
property, held by Companies or individuals, subjects of one Power,
shall, if their validity is duly established, be recognised in the sphere
of the other Power. It is understood that concessions must be worked
in accordance with local laws and regulations.
ART. X. In all territories in Africa belonging to, or under the in-
fluence of, either Power, missionaries of both countries shall have full
protection. Religious toleration and freedom for all forms of divine
worship and religious teaching are guaranteed.
ART. XL [Cession to be made by the Sultan of Zanzibar to Germany
of possessions on the mainland and of the island of Mafia. German
recognition of British protectorate over the remaining dominions of the
Sultan of Zanzibar, including the islands of Zanzibar and Pemba, and
Witu. Withdrawal of German protectorate up to Kismayu.]
ART. XII. [Cession of Heligoland by Great Britain to Germany.]
EDWARD B. MALET.
H. PERCY ANDERSON.
v. CAPRIVI.
K. KRAUEL.
BERLIN, ist July 1890.
S. African Treaties, Conventions, etc., presented
to Cape Part. 1898, p. 388.
APPENDIX C.
No. 288. THE CAPITULATION IN GERMAN SOUTH-WEST
AFRICA . [9 July 1 9 1 5 .]
The terms of surrender of the military forces of the Protectorate
of German South-West Africa, as agreed to by the Government of
the Union of South Africa and accepted by His Excellency Dr. Seitz,
the Imperial Governor of the Protectorate of German South-West
Africa and Commander of the said military forces, which was signed
at Kilometre 500 on the railway line between Otavi and Khorab on
July 9, 1915, are as follows :
(1) The military forces of the Protectorate of German South-West
Africa, hereinafter referred to as the Protectorate, remaining in the
field under arms and disposable at the command of the Commander
of the said Protectorate forces are hereby surrendered to General The
Right Hon. Louis Botha, Commanding-in-Chief the Forces of the
Union of South Africa in the field. Brigadier-General H. T. Lukin,
C.M.G., D.S.O., acting on behalf of General Botha, shall be the Officer
in Charge with arranging the details of the surrender and giving
effect to it.
(2) The active troops of the said forces of the said Protectorate
surrendered in terms of paragraph i shall in the case of officers retain
their arms, and may give their parole, being allowed to live each
under that parole at such places as he may select. If for any reason
the Government of the Union of South Africa is unable to meet the
wish of any officer as regards his choice of abode, the officer concerned
will choose some place in respect of which no difficulty exists.
(3) In the case of other ranks of the active troops of the said
forces of the said Protectorate such other ranks shall be interned
under proper guard in such place in the Protectorate as the Union
Government may decide upon. Each non-commissioned officer and
man of the other ranks last referred to shall be allowed to retain his
rifle, but no ammunition. One officer shall be permitted to be interned
with the other ranks of the artillery, one with the other ranks of the
remainder of the active troops, and one with the other ranks of the
police.
(4) All reservists, Landwehr and Landsturm of all ranks of the
said forces of the Protectorate now remaining under arms in the
field shall, except to such extent as is provided for in paragraph 6
below, give up their arms upon being surrendered in such formation
as may be found most convenient, and, after signing the annexed
form of parole, shall be allowed to retire to their homes and resume
their civil occupation.
(5) All reservists, Landwehr and Landsturm of all ranks of the
said forces of the Protectorate who are now held by the Union Govern-
ment prisoners of war taken from the said forces of the Protectorate,
upon signing the form of parole above-mentioned in paragraph 4
shall be allowed to resume their civil occupation in the Protectorate.
(6) The officers of the reserve, Landwehr and Landsturm of the
570
APPENDIX C 571
said forces of the Protectorate, who surrender in terms of paragraph i
above, shall be allowed to retain their arms, provided they sign parole
above mentioned in paragraph 4.
(7) All officers of the said forces of the Protectorate who sign the
form of parole above mentioned in paragraph 4 shall be allowed to
retain the horses which are nominally allotted to them in their
military establishments.
(8) The police of the Protectorate shall be treated, as far as they
have been mobilised, as the active troops. Those members of the
police who are on duty on distant stations shall remain at their posts
until they are relieved by Union troops in order that the lives and
property of non-combatants may be protected.
(9) Civil officials in the employment of the German Imperial
Government or of the Government of the Protectorate shall be allowed
to remain in their homes, provided they sign the parole above men-
tioned in paragraph 4. Nothing, however, in this statement shall
be construed as entitling any such officer to exercise the functions
of the appointment which he holds in the service of either of the
Government aforesaid or to claim from the Union Government the
emoluments of such appointments.
(10) With the exception of the arms retained by the officers of
the Protectorate forces and by the ranks of the active troops as pro-
vided for in paragraph 2 above, all war material, including all field
and mountain guns, small arms ammunition, and the whole of the
property of the Government of the Protectorate shall be placed at
the disposal of the Union Government.
(n) His Excellency the Imperial Governor shall appoint a civil
official of the Protectorate service, who shall hand over and keep a
record of all Government property of the civil departments, including
records which are handed over to the Union Government in terms
of paragraph 10 above, and the Commander of the said forces of the
Protectorate shall appoint a military officer who shall hand over and
keep a similar record of all Government property of the military
departments of the Protectorate.
Given under our hands on this ninth day of July 1915.
(Signed) Louis BOTHA, General Commanding in Chief
the Union Forces in the Field.
SEITZ, Imperial Governor of German South-
West Africa.
FRANKE, Lieut.-Colonel, Commander of the
Protectorate Forces of German South-West
Africa.
The form of parole is as follows :
“I, the undersigned, hereby pledge myself on honour not to re-
engage in hostilities in the present war between Great Britain and
Germany.”
INDEX.
The South Africa Act of 1909 is not dealt with, as an analysis of it is
printed on pages 517-21.
Adam Kok, see Griquas.
Administrators of native laws, see
Native Laws.
Agriculture, office of Secretary for,
Cape, created, 74.
Aliens, NATAL REPUBLIC, law re-
garding, 162 ; NATAL COLONY, not
entitled to vote, 190; S.A.
REPUBLIC, may be admitted, 364 ;
how to acquire burgher rights in
J^SS, 361 ; in 1890, 496; in 1893,
501-2 ; how they may be ex-
pelled for certain offences, 505 ff .
Amiens, Treaty of, 12.
Appeal Court, CAPE, in civil cases in
1 796, 8 ; consists of the Governor
and the Lieut. -Governor in 1797,
101 ; in 1807, 102; in criminal
cases consists of the Governor
and one or more assessors, 102-3 >
appeals from the Eastern Districts
Court to the Supreme Court in
1864, 128 ; ” Court of Appeal
of the C. of G. Hope ” established
in 1879, 131 ; hears appeals in
1880 from the Griqualand West
Courts, 132-3; Court abolished
and all its authorities vested in
the Supreme Court in 1886, 135 ;
NATAL, the Cape Supreme Court
is a Court of Civil Appeals for
Natal, 231 ; Lieut. -Governor in
Council to hear appeals in native
cases, 237 ; Supreme Court and
Circuit Courts in 1857 declared
courts of appeal, 244 ; ORANGE
FREE STATE, consists temporarily
of the Executive Council, 308 ;
High Court and Circuit Courts
declared courts of appeal, 329 ;
S.A. REPUBLIC, courts of landdrost
and heemraden and the High Court
are declared courts of appeal,
398-9.
Appropriation Ordinance, Cape, 38 ;
appropriation bills, how to originate
in tile Cape Parliament, 52.
Assembly, House of, CAPE, created
in 1853, 45 ; composition of, 48 ;
qualification of members, 50 ;
alleged disqualification, how tried,
5 1 ; members may resign, 5 1 ;
originates money bills, 54 ; in-
crease in membership, 60 ff., 67 ;
NATAL, created in 1893, 205 ;
constitution of, 206-7 ‘< to originate
money bills, 208.
Attorney-General, CAPE, 52, 63 ;
prosecutes before the Eastern
Districts Court, 128 ; S.A. RE-
PUBLIC, State-Attorney, men-
tioned, 411, 412; his opinion
regarding the prohibition of Coolie
immigration, 484; acts as public
prosecutor, 487 ; to advise re-
garding the expulsion of aliens
guilty of certain offences, 506.
Auditing of accounts, CAPE, 71, 86-
7 ; duties of Auditor-General
defined, 71-2 ; S.A. REPUBLIC,
duties of Auditor-General regard-
ing the revenue, 435, 436.
Basutoland, proclaimed British terri-
tory in 1868, 336-7; annexation
of, to the Cape, 61 ; disannexa-
tion, 67; convention regarding,
with the O.F. State, 336 ff.
Basutos, treaty with the British in
1848, 269 ; attack the British,
281-2 ; recognised by the O.F.
State as British subjects, 337.
Bechuanaland, annexation of, to the
Cape, 76.
Bills, Appropriation, how to originate
in the Cape Parliament, 52 ; all bills
to be submitted to the Governor,
53 ; assented to or vetoed by the
Crown, 54 ; money bills to origin-
ate in the Assembly, 54 ; but may
be amended by the Council, 54 ;
NATAL, how bills are to be
assented to, 1856, 192 ; bills
imposing taxation on Europeans
573
574
INDEX
to require a two-thirds majority,
200 ; money bills to originate in
the Assembly, 208 ; bills to which
the Governor may not assent
under responsible government, 213;
see also Revenue.
Bomvanaland, see Tembuland.
Borough Courts, Natal, 225, 226 ;
Borough Police Board, 224.
Burghers, CAPE, may be called up in
1797 for police duty, 99 ; NATAL
REPUBLIC, laws regulating their
rights, 152, 162; ORANGE FREE
STATE, three classes of, 286 ;
S.A. REPUBLIC, duties of, in
1844, 355.
Burgher Senate, Cape, to supervise
the repair of roads, 76.
Cape of Good Hope, first surrender,
3 ; restored to the Dutch, 12,
13 ; second surrender, 16 ; cession
of, to Great Britain, 19 ; receives
representative government, 45 ;
responsible government, 63 ; be-
comes part of the Union. 522.
Cape Town, surrendered to the
British in 1806, 14.
Charter of Justice, Cape, of 1827,
mentioned, 109, 112; superseded
by the second charter in 1834, 114;
clauses repealed, 131 ; amended,
133-
Charter of Natal, establishing a
Legislative Council, 188; maybe
amended by the Natal legislature,
193 ; amended, 198, 199, 201, 202.
Circuit Courts, CAPE, established in
1 8 1 1 , 103 ff. ; proceedings in public,
105 ; continued under the Charters
of Justice, jurisdiction, etc., 116-
7 ; duties regarding insolv<: ncy,
120; NATAL, mentioned in 1852,
241 ; organised in 1857. 243 ; hear
appeals from magistrates’ courts,
258 ; ORANGE FREE STATE, of
landdrosts, 307 ; of judges, 326 ff. ;
declared courts of appeal, 329 ;
ORANGE RIVER COLONY, continued
in 1902, 348 ; S.A. REPUBLIC,
duties of, 397, 486.
Civil Commissioners, CAPE, succeed
to administrative duties of Land-
drosts and Heemraden, 77; to be
chairmen of Divisional Councils,
84 ; ORANGE FREE STATE, duties
of, performed by landdrosts, 294.
Civil List, reserved, CAPE, in 1853, 55 ;
NATAL, in 1856, 192 ; in 1893, 208.
Collector-General at the Cape in 1795,
Colonial Secretary, Cape, mentioned,
63.
Commandant, British, appointed at
the Cape in 1795, 3.
Commandant, field – commandant,
ORANGE FREE STATE, elected by
the burghers, 295 ; manner of elect-
ing, 303 ; elected in conquered
native territory, 318 ff . ; ap-
pointed by the President to super-
vise native territories, 319 ; placed
‘over native reserves, 321 ; S.A. RE-
PUBLIC, duties of , in 1844, 355-6;
under the Constitution, 384 ff.
Commandant -General, ORANGE FREE
STATE, to be elected by military
officers in time of war, 295 ; S.A.
REPUBLIC, mentioned, 357 ; power
to conclude treaties in war-time,
367 ; to be member of the Execu-
tive Council, 477 ; office separated
from that of superintendent of
natives, 508.
Commandos, S.A. Republic, law re-
lating to, 354; defined, 386,442-3.
Commons, House of, debate in, on a
Cape petition for representative
government, 30.
Constitution Ordinance, Cape, 45 ;
amended, 63, 64, 66, 73-4.
Conventions, Bloemfontein, 281 ;
Aliwal North, 336 ; London (re-
garding the diamond fields), 341 ff.;
Sand River, 357 ff. ; Pretoria, 455 ;
London (with the S.A. Republic),
469 ff . ; postal convention between
the S.A. Republic and the Cape
Colony concluded, 477.
Coolies, S.A. Republic, immigration
of, 483.
Council, CAPE, set up in 1825, 24;
O.R. SOVEREIGNTY in 1849, 276.
Court of Justice, CAPE, of the Dutch
period continued in 1795, 97;
constitution of, in 1783, 99 ; in
1795. 99-100; proceedings to be
in public, 105 ; S.A. REPUBLIC,
rules for the conduct of, in 1844,
349 ; courts established under the
1858 constitution, 3965.; all
courts to observe resolutions of
the Volksraad as laws, 418, 511-3 ;
see Higher Courts, Lower Courts,
Supreme Court, etc.
Court of Pettjr Cases at Cape Town,
continued in 1795, 100 ; civil
jurisdiction, 101, 105 ; civil juris-
diction extended, 105-6.
Crown, CAPE, its power to legislate,
ii, 46; nominates ministers of
religion at the Cape, 43 ; to assent
to or veto bills, 53 ; appoints
ministers, 63, 74 ; issues Letters
Patent for annexing territory, 68,
69, 70 ; appeals to, allowed, 101,
575
1O2, 118; reserves powers to
amend the Charter of Justice, 118 ;
appoints judges, 128 ; hears ap-
peals from the ” Court of Appeal ”
set up in 1879, 131 ; NATAL, legis-
lates for Natal, 182, 184, 188 ; to
appoint members of the Executive
Council, 1 89 ; may veto legislation,
205 ; may dismiss judges on an
address of both Houses, 207.
Crown Lands, Commissioner of, Cape,
63-
Customs Union, between the states
and colonies suggested, 475-6;
concluded between the S.A. Re-
public and the Cape Colony, 477.
Dingaan, Zulu King, Natal, concludes
a treaty with British residents in
1835, 143 ; cedes territory in Natal
to the emigrants in 1837, 148 ;
and to the King of England, 149 ;
mentioned, 156, 171.
Diplomatic Agent, Natal, supervises
the administration of justice by
native chiefs, 236.
District Councils, S.A. Republic, law
relating to, 465 ; further pro-
visions, 487-8.
District Court, Natal, established in
1845 and jurisdiction prescribed,
229 ff. ; may refer criminal cases
to the Cape Supreme Court, 231 ;
its civil judgments are subject to
appeal to the Cape Supreme Court,
231 ; abolished in 1857, 243.
Divisional Councils, Cape, created in
1855, their constitution, duties,
etc., 83-5 ; take over duties of
Divisional Road Boards in 1855,
84 ; and of Central Road Board in
1858, 86.
Dutch language, CAPE, may be used
in Parliament, 66 ; in courts of
law, 133,136; ORANGE FREE STATE,
the official medium, 296 ; S.A.
REPUBLIC, declared the official
medium, 482 ; to be the medium
of instruction in state-aided schools,
477-
Eastern Districts, Cape, given a
separate government, 39.
Eastern Districts Court, Cape, to
have jurisdiction in Tembuland in
1885, 69 ; E.D. Court established
in 1864, 127-9 ; to supervise the
work of special J.P.’s, 130; con-
stitution in 1879, 130-1.
Eastern Electoral Divisions, Cape,
46-7.
Eastern Electoral Province, Cape,
created in 1874, 65.
Ecclesiastical matters, CAPE, in 1796,
9 ; ministers nominated by the
Crown, 43 ; NATAL, grants from
the colonial revenue abolished, 197 ;
S.A. REPUBLIC, Kerkraad exempted
from military obligations, 360 ;
DutchReformed Church mentioned,
366, 393 ; disputes referred to, 420.
Educational Boards, Cape, created
in 1858, 87.
Education Test, in parliamentary
franchise, CAPE, 74 ; NATAL, 203.
Electoral Divisions, CAPE, in 1853,
48 ; increased by two, 60 ; eastern
and western divisions, 46-7 ;
electoral division for Tembuland
and Griqualand East created in
1887, 70 ; NATAL, in 1856, 190 ; in
1873, 198 ; in 1883, 202 ; in 1889,
204 ; in 1893, 206-7.
Electoral Provinces, Cape, seven
created in 1874 for electing mem-
bers of the Legislative Council, 65.
Emigrants from the Cape in 1836, see
Great Trek.
English language, CAPE, established,
23 ; sole use of, in Parliament, 55 ;
exclusive adoption in the courts
postponed in 1826, 107; use of, in
issuing processes, 136; NATAL,
sole use in magistrates’ courts, 235 ;
ORANGE FREE STATE, officials to be
acquainted with, 297.
Executive Council, CAPE (see also
Legislative Council), created in
1825, 24 ; consists of five officials
in 1834, xxxi ; executive officers in
1853 may sit in either house of the
legislature but without a right to
vote, 52; executive officers declared
in 1872 eligible for the Legislative
Council or the Assembly, 63 ;
pensions of executive officers
secured, 64 ; with the governor it
may extend Cape laws to Tembu-
land, 68 ; executive offices created
in 1893, 74-5 ; NATAL, executive
functions vested in 1845 m a h’eut.-
governor, 184 ; Executive Council
in 1856 to be appointed by the
Crown, 189 ; the governor ap-
points to political offices to be held
during the Queen’s pleasure, 205 ;
ORANGE FREE STATE, constitution
and powers, 293 ; prerogative of
mercy, 303 ; powers, etc., 305 ;
acts temporarily as an appeal
court, 308 ; to manage conquered
native territory, 318-20; to
make rules for native reserves, 324,
325 ; S.A. REPUBLIC, to propose
laws, 365 ; to carry out laws passed
by the Volksraad, 365, 374 ; con-
INDEX
stitution of, in 1858, 381 ; duties,
powers, etc., 382 ff. ; officials
placed under its control by the
constitution, 401-3 ; exercises the
prerogative of mercy, 401 ; to
regulate taxes on town property,
405 ; to appoint landdrosts to sit
in the High Court, 419 ; powers
regarding the enrolment oi voters,
440 ; with the President declares
war, 442 ; may not reverse a
sentence of the High Court, 444 ;
resolution regarding the threatened
annexation of the Republic by the
British, 446 ff. ; the minute-keeper
and the superintendent of native
affairs as members, 485 ; special
powers delegated annually to, by
the Volksraad, 498 ; how members
are to be tried for misdemeanour,
502 ff. ; may expel aliens for cer-
tain offences, 506 ; office of super-
intendent of natives separated from
office of Commandant -General, 508 ;
superintendent of natives ceases
to be a member of, in 1897, 514.
Expenditure, Cape, to be under the
governor’s control, 8; to be
defrayed from fees of office, 12;
see Revenue.
Field-Commandants, see Comman-
dants.
Field-Cornets (Veld Wachtmeesters),
CAPE, to call up burghers for
police duties and for defence in
1797, 99 ; to notify slaves and
Hottentots of the holding of
circuit courts, 104 ; duties pre-
scribed in 1848, 120-2 ; to make
out jury lists in 1891, 139; NATAL,
duties of field-cornets in the Re-
public, 153, 163 ; duties as regards
elections in 1856, 192-3 ; created
in 1846 and duties prescribed,
231 ; ORANGE FREE STATE, elected
by the burghers, 295 ; instructions
to, 297 ff . ; elected in conquered
native territory, 3175.; S.A.
REPUBLIC, duties of, in 1844,
355-6; to assist in carrying out
the 33 Articles, 357 ; duties of,
375 ; military duties under the
constitution, 384 ff. ; instructions
to, in 1858, 410 ff. ; to make out
voters’ lists, 440.
Fines, Cape, how to be remitted, 8.
Fiscal Divisions, Cape, increased in
1865,61.
Fiscal, The, Cape, is made President of
the Court of Justice in 1797, 100.
Franchise, District Councils, S.A.
Republic, 465-6.
Franchise, Divisional Councils, Cape,
in 1855, 83.
Franchise, Educational Boards, Cape,
in 1858, 88.
Franchise, Municipal, CAPE, in 1836,
78 ; in 1882, 92 ; NATAL, 219; O.F.
STATE, 311.
Franchise, Parliamentary, CAPE, in
1853, 48 ff. ; narrowed in 1892,
73; NATAL, in 1856, 190; law
disqualifying certain natives in
1865, 194 ; qualification of voters
in 1883, 203 ; amended in 1896,
215 ; granted in 1906 to certain
burghers of the old S.A. Republic,
217 ; see Volksraad.
Gcalekaland, see Tembuland.
Goshen, burghers of, receive the
franchise in the S.A. Republic, 479.
Governor, CAPE, instructions to,
in 1796, 5 ; may summon Parlia-
ment, 50 ; and prorogue it, 52 ;
transmits drafts of laws to Parlia-
ment, 53 ; how to deal with bills
passed, 53 ; gets power to legislate
for Basutoland, 62 ; sits with the
Lieut.-Governor as a court of
civil appeal, 101-2 ; in criminal
appeals, 102-3 : appoints resident
magistrates, 126; appoints a judge
provisionally, 128 ; may proceed
to Natal and take over the govern-
ment in 1845, 185 ; NATAL, office
created, 189 ; duty of, as regards
bills, 192, 205 ; may suspend
officials appointed by the Crown,
194 ; appoints the president of the
Legislative Council in 1893, 2 6 ;
may transmit bills to the legis-
lature, 207 ; office of, constituted
by Letters Patent and powers
prescribed in 1893, 2O 9 ‘ in-
structions to, 212.
Governor in Council, CAPE, may
legislate for Tembuland, 68 ;
powers of, under the Municipalities
Act of 1882, 90-1 ; NATAL,
may make grants of Crown lands,
194 ; definition of the term, 206 ;
may remove civil servants, 208 ;
may extend Natal laws to Zulu-
land, 216.
Grand Jury, Cape, mentioned, 134.
Great Trek, manifesto of emigrants
from the Cape, 143 ; Attorney-
General’s opinion regarding, 145 ;
British authority established over
all emigrants, 146 ; territory in
Natal ceded to emigrants by Din-
gaan, 148 ; causes of the Trek,
143 ff., i54ff., I59ff-, 167 ff.,
i74ff. ; emigrants in Natal de-
INDEX
577
mand a recognition of their in-
dependence, 158, I59ff. ; British
authority proclaimed over emi-
grants, 164-6 ; objection of
emigrants to this, 170 ; British
authority maintained in 1845, 183 ;
petition of emigrants at Riet
River concerning land, 260.
Griqualand East mentioned, 69, 70.
Griqualand West, annexation of, to
the Cape, 66 ; qualification of
voters, 74 ; appeals from High
Court and Circuit Courts to the
Cape Supreme Court, 132, 135.
Griquas, recognition of their inde-
pendence mentioned, 167 ; treaty
with, in 1846, 261.
Grondwet, S.A. Republic, of 1858,
362 ; of 1889, 485 ; of 1896, 505.
Heemraden, see Landdrost.
High Commissioner for South Africa,
receives payment from the Cape
revenue, 67 ; receives in 1889
3000 salary from the Cape re-
venue, 73 ; mentioned, 270, 273,
276-81, 336ff.
Higher Courts of Justice, ORANGE
FREE STATE, constitution, juris-
diction, etc., 326 fif. ; see also
Circuit Courts ; High Court de-
clared a court of appeal, 329 ;
High Court of the O.R. Colony
set up in 1902, 347 ; S.A. RE-
PUBLIC, High Court of landdrosts,
396 ff . ; declared a court of appeal,
399 ; appointed by the Executive
Council to sit, 419 ; High Court
of judges, 486 ; can not decide
whether a law passed by the Volks-
raad is valid, 508 ff . ; TRANSVAAL,
High Court set up in 1902, 515.
Hottentots, Cape ; contracts of hire
with, 17 ; extension of their
liberties, 26 ; see Natives.
Imperial Government, undertakes the
management of Basutoland, 67.
Imperial Parliament, passes an Act
empowering the Cape Parliament
to annex British Kafifraria, 59.
Instructions, to the Cape Governor
in 1796, 5 ; to Natal Governor in
1893, 212 ; to Natal Governor in
1848, mentioned, 235 ; see also
Field-Cornets, Treasurer-General,
etc.
Judges, CAPE, Chief Justice and
puisne judges, duties, qualifica-
tions, functions, etc. in 1834,
1 14 ff . ; frame rules for magis-
trates’ courts, 136 ; NATAL, may
37
be appointed by the Governor, 194 ;
commissions to continue in 1893
during good behaviour, 207 ;
number of, in 1857, 243; ORANGE
FREE STATE, duties, qualifications,
326 ff. ; S.A. REPUBLIC, qualifica-
tions of, in 1844, 350 ; hi 1889, 486 ;
how to be tried for misdemeanour,
502 ff. ; are bound to administer
the laws and resolutions as passed
by the Volksraad, 418, 508 ff.
Jurors, CAPE, qualification of, in
1828, 113; to serve in criminal
cases before the Circuit Courts,
1 16-7 ; trial by jury in civil cases
established in 1854, 122 ff. ; grand
jury mentioned, 134-5 ; qualifica-
tions, duties, etc. of jurors in 1891,
137-42; NATAL REPUBLIC, 164;
COLONY OF NATAL, constitution and
formation of juries, 238 ff. ; trial
by jury in civil cases established in
1852, 241 ff. ; verdict of a jury in a
civil case to be final, 245 ; ORANGE
FREE STATE, to try criminal cases,
294; qualifications, etc., 312 ff.;
S.A. REPUBLIC, a part of the
judicial system, 393 ; how sum-
moned and challenged, 419.
Justices of the Peace, CAPE, office
created in 1827, 107-8 ; special
J.P.’s appointed in 1876, their
jurisdiction, 129-30; NATAL, may
be appointed by the Governor,
194 ; may issue certain certificates
to natives, 196 ; created in 1846,
232 ; S.A. REPUBLIC, law regard-
ing, 431 ff.
Kaffirs, emigrants complain of de-
predations by, 144 ; see Natives.
Kaffraria, incorporaton with the
Cape, 59.
Kimberley, representation of, in
Parliament, 66.
King, see Crown.
Landdrosts, CAPE, to supervise with
heemraden the repair of roads,
76 ; to appoint overseers of roads
in the districts, 77 ; boards of
landdrosts and heemraden abolish-
ed in 1827, 77 ; courts of landdrosts
continued in 1795, 98, 100;
jurisdiction in 1797, 101 ; criminal
jurisdiction granted in 1817, 106;
courts and boards of landdrosts
and heemraden abolished, 109 ;
NATAL, appointment of, in the
republic, 153; ORANGE FREE
STATE, judicial duties of, 294 ;
do duty as judges, 307 ff. ; courts
of, 330 ff. ; courts of landdrosts
INDEX
and heemraden, 334ff. ; of assistant –
landdrostsandassistant-landdrosts
and heemraden, 335 ; landdrost’s
‘periodical court, 336; courts
swept away in 1902, 347 ; S.A.
REPUBLIC, mentioned in 1844,
355-6; to see to the carrying
out of the 33 Articles, 357 ; quali-
fications, judicial duties, etc.,
392 ff. ; hold courts with heem-
raden, 393, 396 ; jurisdiction of
district courts, 400 ; appeal from
courts of landdrosts and land-
drosts and heemraden, 388-9;
appointed by the Executive Council
to sit in the High Court, 419 ; to
send inventories of government
property to the Treasurer-General,
436 ; to send voters’ lists to the
State Secretary, 440 ; powers to
enrol the names of voters, 440;
to act as chairmen of district
councils, 465 ; can not question
the validity of a law passed by
the Volksraad, 508-13.
Laws, Dutch laws retained at the
Cape, 6, 97, 100 ; see Roman-
Dutch Law.
Legislative and Executive Council,
CAPE, created in 1825, 24; Legis-
lative Council in 1853, 45 ff. ;
qualification of members, 49 ;
alleged disqualification, how tried,
51 ; how seats are vacated, 50,
51 ; members to be elected by
seven constituencies, 65 ; to legislate
for Natal in 1844, 182 ; and in
1845, 185 ; NATAL, nominee Legis-
lative Council created in 1847, 186;
mixed nominee and elective Legisla-
tive Council created in 1 856, 1 89 ff . ;
nominees may be appointed pro-
visionally by the Governor, 190 ;
number of members increased to
twentyin 1873, 198 ; qualifications
of nominee members in 1875,
199 ; number increased to thirty
in 1883, 201 ; again increased in
1889, 204; lowered to eleven in
1893, 2 6; constituencies from
which the eleven members shall be
summoned, 206 ; president of,
206.
Licenses, farming out of, CAPE, 16 ;
NATAL REPUBLIC, for the retail of
articles, 153.
Lieutenant-Governor, Natal, ap-
pointed as the executive authority,
1 84-6 ; powers in granting the
franchise to certain natives, 196;
in supervising the administration
of justice among natives, 236-7 ;
to appoint Europeans and natives
as administrators of native law,
248.
Lijdenburg Republic, union with the
S.A. Republic in 1859, 420 ff.
Lower Courts of Justice, Orange
Free State, constitution, jurisdic-
tion, etc., 330 ff. ; see also Land-
drosts.
Marriage licenses, Cape, to be granted
by the Governor, 10 ; to be given
by president magistrates in 1882,
133-
Members of Parliament, CAPE, quali-
fications, 49 ff. ; NATAL, qualifica-
tions and privileges in 1893,
206-7.
Military matters, ORANGE FREE
STATE, the system regulated by
the constitution, 295 ; the right
to declare war, 304 ; in conquered
territories for defence, 316 ff.;
S.A. REPUBLIC, system of defence
regulated by the constitution,
384 ff. ; burghers may exercise
the franchise while on commando,
441 ; military service law, 1876,
442 ff.
Mining, S.A. Republic, head of the
industry appointed, 480 ; repre-
sentation of persons engaged in,
481.
Ministers, CAPE, appointed by the
Crown and may sit in either
House, 63-4 ; Minister of Agri-
culture created, 74; Secretary
for Native Affairs abolished, 74;
definition of the term ” minister,”
75 ; NATAL, to hold office by ap-
pointment of the Governor during
the Queen’s pleasure ; definition
of the term ” minister,” 205 ;
to be members of either House,
205-6.
Molappo, law for the government of
his people in the O.F. State in
1866, 320.
Mopeli, Paulus, law for the govern-
ment of his people in the O.F.
State in 1867, 325.
Moshesh, see Basutos.
Mount Ayliff , see Xesibe Country.
Municipal Boards, CAPE, created in
1836, 78 ; qualification of com-
missioners, 8 1 ; new regulations
in 1882, 88 ff. ; NATAL, created
in 1847, 218 ff.; ORANGE FREE
STATE, in 1856, 311; ORANGE
RIVER COLONY, in 1904, 348 ;
TRANSVAAL, in 1903, 516.
Municipal Corporations, Natal, estab-
lished in 1854, 220 ff.; the rules
improved, 224.
INDEX
579
Natal, not included under the Cape
Constitution Ordinance of 1853,
55 ; British residents in 1835, 143 ;
protest of British residents against
a magistrate’s authority in 1837,
150; occupation of the Port by
British troops in 1838, 151 ; the
republic in Natal, 152; Port
abandoned by the British in 1839,
158 ; the Republic demands a
recognition of its independence,
158; burghership law, 162; re-
occupation by the British in 1841,
164 ; submission of the Volksraad
and demand for liberties, I74ff. ;
boundaries between British and
native territories agreed on in 1843,
1 80; annexation to the Cape in 1844,
182 ; receives a separate govern-
ment in 1845, 184; but remains
under the control of the Cape
Legislative Council, 185 ; receives
a Legislative Council in 1856, 188 ;
responsible government in 1893,
204; Transvaal districts annexed
to, 217 ; joins the Union, 522.
Native Affairs, Secretary for, CAPE,
63 ; office abolished, 74 ; duties
fall to the Prime Minister, 75 ;
NATAL, to assist the Supreme
Chief, 255 ; see Executive Council.
Native Board, see Native Laws.
Native Code, Natal, 251, 252;
summarised, 259.
Native High Court, Natal, creation
of, 250.
Native laws and customs, NATAL,
certain persons relieved from the
operation of, in 1864, 195 ; remain
of force among natives in 1848,
236 ; to be assimilated to colonial
laws, 247 ; Europeans and natives
may be appointed as adminis-
trators of native law, 248 ; juris-
diction of such administrators,
248-9 ; to be reduced to writing
by a Native Board created in
1875, 250-1 ; administrators of
native law receive the powers of
magistrates, 252 ; further duties
of Native Board, 253-4 ; ORANGE
RIVER SOVEREIGNTY, retained
among natives, 278 ; ORANGE
FREE STATE, administered by a
Native Council, except criminal
laws, 320 ff.
Native Reserves, Orange Free
State, 320 ff., 325.
Native Trust, Natal, constitution
and functions, 255.
Natives, CAPE, see Hottentots ;
NATAL, certain natives disqualified
from exercising the parliament-
ary franchise in 1865, 194 ff.,
203 ; chiefs continue to ad-
minister justice among, 236 ;
crimes repugnant to the general
principles of humanity to be
tried only in the colonial courts,
238; ORANGE FREE STATE, govern-
ment of conquered territories,
3i4ff. ; laws applied to, 320 ff.;
S.A. REPUBLIC, no equality with
white people, 364 ; certain natives
to be placed in service, 414 ;
natives not to be sold, 415 ;
written contracts of hire with,
41 5 ; not to possess the franchise,
439 ; liable to be called up for
military service, 444 ; to be taught
due obedience, 45 3 ; may acquire
land, 459, 474.
Nomansland, see Transkei.
Oath, CAPE, of allegiance to the
King, 4 ; of resident magistrates,
112; NATAL, of members of the
Legislative Council, 192.
Officials, CAPE, may sit in Parliament
in 1853, 52 ; S.A. REPUBLIC, list of,
arranged for by the constitution,
401 ff. ; thek salaries prescribed,
408 ; may not become members
of the Volksraad, 437 ; list of, in
1883,469; in 1889,486; may not
accept nomination for the office
of President, 513.
Ohrigstad, mentioned, 423.
Orange Free State, territory pro-
claimed British as the O.R.
Sovereignty in 1848,270; govern-
ment of, in 1848, 273; in 1849,
275 ; country becomes inde-
pendent by the Bloemf ontein Con-
vention in 1854, 281 ; constitution
of, 285 ; annexed to the British
Empire, 344; concludes the Ver-
eeniging Peace Treaty, 345 ; joins
the Union, 522.
Paper money, Cape, 8 ; secured in
1806, 15 ; replaced by silver, 25.
Parliament, Cape, created, 45 ff. ;
annual sessions, 52 ; members to
be paid, 55 ; freedom of speech
and publication of papers, 57.
Paymaster-General,Cape,dutiesof,72.
Peace, crimes against the public,
S.A. Republic, defined, 354.
Police, CAPE, under the Municipalities
Act of 1882, 95 ; arrangements
in 1797, 98 ; NATAL, under the
Municipal Corporation Ordinance
of 1854, 224.
Pondoland, annexation of, to the
Cape, 76,
INDEX
Population of the Cape in 1841, 42.
President, ORANGE FREE STATE,
duties and powers, 292 ; law regu-
lating the election of, 301-3 ;
prerogative of mercy, 303 ; duty
in declaring war and concluding
peace, 304 ; fiat in case of death
penalties, 309 ; to appoint a com-
mandant of native territory, 319 ;
S.A. REPUBLIC, election, duties,
etc., 376 ff. ; to appoint justices
of the peace, 432, 433 ; before
elected he need not be a burgher,
434 ; declares war with the con-
currence of the Executive Council,
442 ; with the Executive may
proclaim public diggings, 481 ;
exercises his power with the Ex-
ecutive Council, 485 ; may call
special meetings of the Volksraad,
489 ; how to be tried for mis-
demeanour, 502 ff. ; may expel
aliens for certain offences, 506 ff . ;
government officials may not accept
nomination as, 513.
Press, Orange Free State, freedom of
the, 296.
Prime Minister, CAPE, receives the
management of native affairs, 75.
Prince of Orange, gives an order to
admit troops into the Cape, 2 ;
cedes the Cape to Great Britain,
19 ff.
Privy Council, CAPE, 6 ; appeals to,
118; NATAL, appeals to, from the
Supreme Court, 244, 245 ; see Crown.
Public meetings allowed at the Cape,
44.
Queen, see Crown.
Railways, Natal, 200 ; Central South
African, 516.
Receiver-General, Cape, duties of,
72.
Rent, arrears remitted in 1796, 7.
Representative government, peti-
tion for, debated in House of
Commons, 30 ; petition for, from
the Cape, 42 ; the Cape receives
representative government, 45 ;
Natal receives, 188.
Resident, The British, north of the
Orange River, appointed, 263 ;
powers and duties, 263-9 ; men-
tioned, 272, 273, 274, 276, 278,
281 ; S.A. REPUBLIC, duties of,
under the Convention of Pretoria,
Resident Magistrates, CAPE, have
jurisdiction in Tembuland, 1885,
69 ; office created in 1827, 77,
j 09-1 2 ; in 1882 receive jurisdic-
tion under the Municipalities Act,
95 ; take over duties of courts of
landdrosts and heemraden in
1828, 112 ; courts continued under
the second Charter of Justice in
1834, 117-8; centres at which
they were stationed in 1856, 126;
jurisdiction in 1856, 126-7 ‘ to
give marriage licenses, 133 ; duties
in making out jury lists, 1 39-40 ;
NATAL.duties in regard to elections,
1856, 191, 193 ; to issue certain
certificates to natives, 196 ; created
in 1846 and jurisdiction pre-
scribed, 233 ; jurisdiction for the
recovery of petty debts, 246-7 ;
powers in 1889, 255-9; ORANGE
RIVER SOVEREIGNTY, magistracies
in 1849, 276, 278-80; ORANGE
FREE STATE, duties of, performed
by landdrosts, 294 ; courts of,
set up in 1902, 347 ; TRANSVAAL,
courts of, set up in 1902, 515.
Responsible government established,
Cape in 1872, 63 ff. ; Natal in 1893,
204 ff.
Revenue, CAPE, provisions regarding,
in 1796, 7 ; to be accounted to
Commissioners of the Royal
Treasury, 8 ; ordinance for ap-
propriating at the Cape, 38 ; bills
to originate in the Assembly, 54 ;
revenue of British Kaffraria
transferred to the Cape, 60 ; re-
ceivers of revenue and auditors,
72 ; manner of collecting in the
districts in 1828, 77 ; NATAL,
consolidated revenue fund, 208 ;
expenses in Zululand charged on
this fund, 217 ; S.A. REPUBLIC,
sources of, prescribed by the con-
stitution, 403 ; treasury to be at
the President’s house, 406 ; how
to be dealt with by the Treasurer
and Auditor-General, 434-6 ; ex-
penses of District Councils to be
borne by the districts, 487.
Road Boards, Cape, created in 1843,
8 1 ; duties of Divisional Road
Boards transferred to Divisional
Councils, 84 ; Central Road Board
dissolved and its duties transferred
to Divisional Councils in 1 858, 86.
Rode Valley, annexed to the Cape,
70.
Roman Catholic relief granted at the
Cape, 29.
Roman-Dutch Law, CAPE, continued,
6 ; NATAL, established in 1845,
227 ; not to extend over natives as
a general rule, 238 ; ORANGE RIVER
SOVEREIGNTY, retained in 1849,
278 ; ORANGE FREE STATE, re-
INDEX
tained in 1854, 295 ; books pre-
scribed, 310; S.A. REPUBLIC,
adopted in 1844, 356; books pre-
scribed, 417.
School Commissions, Cape, their
duties delegated to Divisional
Councils in 1855, 85.
Secretary of State, supervises the
Cape Government, 6, 8, 9.
Sheriff, CAPE, duties and powers
under the Charter of Justice
of 1827, 112; under the second
Charter, 115 ; to summon jurors,
124; to execute decrees of
Supreme Court, 136; duties in
summoning juries, 140 ; NATAL, to
be appointed by the Governor, 245.
Slaves, rules regulating importation,
etc., at the Cape, 8 ; Christian
slaves may be sold, 18 ; emancipa-
tion of, 38 ; to be supplied in 1 806
by the inhabitants to repair roads,
77 ; will not be kept by the emi-
grants, 144 ; mention of, 168 ;
will not be kept in the S.A. Re-
public, 364, 472.
South African Republic, name
adopted in 1853, 360-1 ; be-
ginnings of, 349 ; recognition of its
independence by the British, 357 ;
adopts a constitution in 1858, 363 ;
union with the Republic of Lij den-
burg in 1859, 420 ff. ; annexation
to the British Empire in 1877, 448 ;
restoration of, but under British
suzerainty, 455 ff. ; concludes the
London Convention in 1884, 469 ;
annexation to the British Empire
in 1900, 514; joins the other
colonies in a Union, 522.
Speaker, of the Cape Assembly in
1853, 51 ; of the Natal Legislative
Council in 1856, 192 ; of Natal
Assembly in 1893, 207.
Stellaland, mentioned, 479.
St. John’s River, see Griqualand
East.
Supply Bills, see Bills.
Supreme Chief of Natives, Natal,
obedience to, 236 ; mentioned,
237 ; Governor endowed with the
authority of, in 1875, 251, 254-5, 2 S9-
Supreme Court of British Kaffraria
abolished, 60.
Supreme Court, CAPE (created
by the 1827 Charter of Justice),
mention of, 114; continued in
1834 by the second Charter, con-
stitution, jurisdiction, etc., 1146. ;
duties of, regarding insolvency,
1 20 ; to be assisted by a jury in
civil cases, 122 ; constitution in
1864, 128 ; to hear appeals from
the Eastern Districts Court, 128 ;
to supervise work of special J.P.’s,
130; constitution in 1879, 130;
hears appeals from the High Court
and Circuit Courts of Griqualand
West, 132; constitution of, in
1880, 133 ; receives in 1886 all the
authorities conferred on the Court
of Appeal in 1879, 135 ; NATAL,
in 1897 has no jurisdiction in
Zululand, 217 ; CAPE, may hear
cases remitted to it by the District
Court of Natal and also appeal
cases from that Court, 231 ;
NATAL, established in 1857, 243 ;
to hear civil appeals from Circuit
Courts, 244 ; to hear appeals from
magistrates’ courts, 258 ; TRANS-
VAAL, set up in 1902, 515.
Surrender of the Cape, first, 3 ;
second, 14.
Swaziland, independence of, recog-
nised in 1881, 461 ; in 1884, 472 ;
mentioned, 505.
Teachers, Cape, to have a Governor’s
license, 10 ; introduction of, from
England, 23 ; in 1858 to be ap-
pointed in the field-cornetcies by
Educational Boards, 88.
Tembuland, annexation of, to the
Cape, 68.
Testing power, not possessed by
judges in the S.A. Republic, 508-
13-
Torture, to be abolished at the Cape,
6.
Transkei, annexation of, to the Cape,
65 ; divided into two electoral
divisions, 70.
Transvaal, see South African Re-
public.
Treason, S.A. Republic, defined,
351-2.
Treasurer, CAPE, in 1795, 5 ; in the
Ministry, 63 ; NATAL, in 1856,
192 ; S.A. REPUBLIC, law denning
the duties of, 434 ff .
Treaty, between British residents in
Natal and Dingaan, King of the
Zulus, 143 ; of agreement pro-
posed by the Republic in Natal
to the Cape Governor, 1 59 ; with
Panda, King of the Zulus, 180 ;
with Adam Kok, chief of the
Griquas, 261 ; with Moshesh,
chief of the Basutos, 269 ; of
Vereeniging, 345 ; of union
between the S.A. Republic and
Lijdenburg, 420 ff.; see Conventions.
Troops, Cape, to be raised by the
Governor, 10.
5 82
INDEX
Union, of the S.A. Republic and
Lijdenburg, 420 ff. ; of the O.F.
State and the S.A. Republic pro-
posed, 478 ; customs union, 476.
Union of South Africa, the South
Africa Act, 1909, analysis of the
Act, 517-21.
Vagrancy regulations in 1809, 17.
Veld Wachtmeester, see Field-Cornet.
Vereeniging Peace Treaty, 345.
Vice- Admiral at the Cape, office to
be held by the Governor, 10.
Volksraad : NATAL REPUBLIC, men-
tioned, 153, 159; members of,
162 ; mentioned, 164, 166, 167 ;
qualification of members, 166 ;
members of, 174, 180; ORANGE
FREE STATE, qualification of
electors, 286 ; powers of, 287 ;
law regulating election of members,
301-3 ; supervises the declaring
of war and the making of treaties,
304-5 ; to decide on agreement
between the President and the
British Government, 344 ; S.A.
REPUBLIC, must ratify treaties in
order to give them validity, 367,
442 ; qualifications and powers of
members, 367 ff. ; its resolutions
to be observed as laws by
every court, 418 ; members not
to be government officials, 437 ;
franchise law of 1876, 437 ff.;
burghers may exercise the franchise
while on commando, 441 ; resolu-
tion regarding the threatened
annexation of the Republic by the
British, 444 ff . ; number of members
decreased in 1886, 478 ; burghers
of Stellaland and Goshen receive
the franchise, 479 ; to ap-
prove taxation levied by District
Councils, 488 ; two Volksraacls
established in 1890, 488 ff. ;
franchise law of 1890 for both
Volksraads, 495 ; franchise ex-
tended to those who assisted in the
War of Independence, 499 ; fran-
chise law of 1893, 500; full
franchise granted to those who
fought against Jameson, 505 ; its
resolutions must be administered
by the courts as laws, 508-1 3 ;
authorises the government to
conclude a postal convention with
the Cape, 477 ; full franchise
granted to those who fought in
Zoutpansberg and Swaziland, 505.
Voters, see Franchise.
Walfish Bay, annexation of, to the
Cape, 68.
War of Independence, S.A. Republic,
1 880 and 1 88 1, mentioned, 499.
Western Electoral Divisions, Cape,
46-7.
Western Electoral Province, Cape,
created in 1874, 65.
Xesibe Country, annexation of, to the
Cape, 69.
Zoutpansberg, mentioned, 505.
Zululand, becomes British territory,
215 ; annexed to Natal, 216.
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