M. K. Gandhi, Attorney at Law: The Man before the Mahatma

“Explanation of the so-called Coolie Question now pending between Her Majesty’s Government and the Government of the South African Republic”, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 392 (1895).

“Case to be submitted to the Arbitrator on behalf of Her Majesty’s Government”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 391 (1895). The Indians themselves were keenly aware that their rights under the Convention were being violated. See “Petition to Indian National Congress”, August 22, 1898, CWMG 3, p. 14 (1960 edition).

“Case to be submitted to the Arbitrator on behalf of Her Majesty’s Government”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 390 (1895).

“Report upon the Proceedings at the Arbitration held at Bloemfontein upon the Indian Traders Question”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 395 (1895).

“Bloemfontein Award”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 398 (1895). De Villers’ decision came in two parts: a rather short “award” in which he announced his conclusions and a lengthy statement of reasons supporting the “award.”

”Reasons of the Arbitrator for his Award”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 409 (1895).

“Bloemfontein Award”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 412 (1895).

“Bloemfontein Award”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 413 (1895).

“Indians in the Transvaal”, CWMG 3, p. 68 at 70 (1960 edition).

Gandhi refers to it as a “memorial.” “Memorial to Agent, Pretoria”, April 16, 1895, CWMG 1, pp. 197-8 (1969 edition). Abdul Gani was a managing partner of MC Camroodeen and Company; Hajee Habib Hajee Dada appears to have been a managing partner in a firm owned by his brother, Hajee Mohamed Hajee Dada; and Tayob Haji Khan Mohamed managed a Transvaal branch of a firm owned by Abubakr Amod. (See Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press,1985), p. 82. (The Collected Works uses Aboobaker; Maureen Swan uses Abubakr.) Tayob Haji Khan Mohamed would later serve as the plaintiff in a pivotal 1898 case testing the meaning of Law 3.

“Memorial to Agent, Pretoria,” April 16, 1895, CWMG 1, p. 197 at 198 (1969 edition).

“Memorial to Agent, Pretoria,” April 16, 1895, CWMG 1, p. 197, fn. 1 (1969 edition).

Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press,1985), p. 66.

“Petition to Lord Ripon”, before May 5, 1895, CWMG 1, p. 201 at 202-3 (1969 edition).

“trade jealousy”

“Petition to Lord Ripon”, before May 5, 1895, CWMG 1, p. 201 at 207 (1969 edition).

is governed

“Petition to Lord Ripon”, before May 5, 1895, CWMG 1, p. 201 at 208 (1969 edition).

“Petition to Lord Ripon”, before May 5, 1895, CWMG 1, p. 201 at 212 (1969 edition). “Kaffir” is a pejorative term for a native black person. Gandhi later repeats the odious comparison of Indians to native blacks in a petition to Lord Elgin, Viceroy and Governor-General of India; see “Petition to Lord Elgin”, CWMG 1, p. 219 at 220 (1969 edition).

This sentiment is found in an 1899 petition from a European businessman to Secretary of State for the Colonies Joseph Chamberlain and is ascribed to Gandhi by the editors of the Collected Works. “Petition to Chamberlain”, prior to May 27, 1899, CWMG 3, p. 76 (1960 edition).

“Indians in the Transvaal”, May 17, 1899, CWMG 3, p. 68 at 69 (1960 edition). During his travels in India in the second half of 1896, Gandhi gave a speech in Madras in which he used much the same adjectival language, referring to the Natal government’s “policy of degrading the Indian to the level of a raw Kaffir....” “Speech at Meeting, Madras”, October 26, 1896, CWMG 2, p. 69 at 74 (1976 edition).

“Speech at Public Meeting, Bombay”, September 26, 1896, CWMG 2, p. 50 at 53 (1976 edition).

Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press,1985), p. 83.

“untouchables”

See Judith M. Brown, Gandhi, Prisoner of Hope (New Haven and London: Yale University Press,1989), pp. 205, et seq., and Mohandas K. Gandhi, An Autobiography: My Experiments with Truth (Boston: Beacon Press, 1957), pp. 397, et seq.

African-American civil rights

Of nonviolence, King said "...Christ furnished the spirit and motivation, while Gandhi furnished the method." "An Experiment in Love", in James M. Washington (ed.), A Testament of Hope: The Essential Writings of Martin Luther King, Jr., (Harper & Row: San Francisco, 1986), p. 17.

“Letter from High Commissioner to Marquess of Ripon”, June 4, 1895, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 418 (1895); “Letter from High Commissioner to State President”, June 24, 1895, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 430 (1895).

Bala Pillay, British Indians in the Transvaal: Trade, Politics and Imperial Relations, 1885-1906 (London: Longman, 1976), pp. 59, et seq.

Law 30 of 1896. See J.S. Marais, The Fall of Kruger’s Republic (Oxford at the Clarendon Press: London, pp. 127-9.

“Letter to the British Agent”, May 18, 1897, CWMG 1, p. 254 (1969 edition).

“Letter to the British Agent”, May 18, 1897, CWMG 2, p. 254 (1976 edition).

“Letter to the British Agent”, July 21, 1899, CWMG 3, p. 86 (1960 edition). This figure does not include the £400,000 worth of assets held by the Transvaal’s Indian hawkers.

Gandhi had earlier claimed that the assets of the Transvaal Indian traders amounted to £100,000. “Letter to The Englishman”, November 30, 1896, CWMG 2, p. 116 at 117 (1976 edition).

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paramountcy in South Africa

Bala Pillay, British Indians in the Transvaal: Trade, Politics and imperial Relations, 1885-1906 (London: Longman, 1976), pp. 63-64.

“Letter to the British Agent”, February 28, 1898, CWMG 3, p. 1 (1960 edition).

Maureen Swan attributes the delays to a variety of factors, including Gandhi’s journey to India, “the Transvaal government’s slowness to implement Law 3 [,] as well as the [Indian National] Congress’s preoccupation with events in Natal....The Transvaal State Attorney’s office was slow to make its side of the preliminary arrangements for the case and the question dragged on into 1898. The Congress does not appear to have pressed the State Attorney to hurry....” Maureen Swan, Gandhi: The South African Experience (Johannesburg: Ravan Press,1985), p. 88.

“Notes on the Test Case”, CWMG 3, p. 10 (1960 edition).

He was assisted by advocates John S. Curlewis and H.B. Sauer, and attorney Edward Rooth. Tayob Hajee Khan Mohamed v. The Government of the South African Republic (F. W. Reitz, N.O.), V Reports of Cases Decided in the High Court of the South African Republic 168 (1898). Leonard would again represent Indian interests in the Aboobaker heirs case in 1906. See “Legalized Robbery”, CWMG 5, p. 231 (1961 edition). Curlewis had represented the British position (along with Malcom Searle) in the arbitration proceedings on the interpretation of Law 3. Rooth had assisted them as an attorney.

The Government was represented by advocates Wessels, Esselen, Coster and Hummel and attorney Uekermann.

the Turkish Empire

“Law respecting Coolies, Arabs and other Asiatics”, Enclosure 2 in No. 6 in Appendix A”, British Sessional Papers, Papers Relating to the Grievances of Her Majesty’s Indian Subjects in the South African Republic, C-7911, page 441 (1895).

“Notes on the Test Case”, [before] April 4, 1898, CWMG 3, p. 8 (1960 edition).

“Notes on the Test Case”, [before] April 4, 1898, CWMG 3, p. 8 (1960 edition); “Notes on the Test Case”, April 4, 1898, CWMG 3, p. 10 (1960 edition).

For many years the Volksraad, the Republic’s legislature, had passed legislation (“besluiten”) in an informal manner in violation of the procedures set out in the Republic’s constitution, (Martin Chanock, The Making of South African Legal Culture, 1902-1936: Fear, Favour and Prejudice (Cambridge: Cambridge University Press, 2001), p. 37) the constitution being considered merely a law of no special significance by the legislature. So highly esteemed was the legislature, relative to the constitution, that the President of the Republic, Paul Kruger, “was convinced that in the seed-time of the Republic no one had even contemplated giving the court the “testing right” over legislation.” H. R. Hahlo and Ellison Kahn, The Union of South Africa: The Development of its Laws and Constitution (Stevens & Sons, Ltd.: London,1960), p. 107. To make this clear Kruger successfully encouraged his legislature to enact Law 4 of 1890 “raising the legal force of a besluit published by the President in the Staatscourant above dispute.” H.R. Hahlo and Ellison Kahn, The Union of South Africa: The Development of its Laws and Constitution (Stevens & Sons, Ltd.: London,1960), p. 108.

In 1897, in the case of in Brown v. Leyds N.O (IV Official Reports of the High Court of the South African Republic 17 (1897)), the High Court took up the issue of whether it could claim for itself the right to test the constitutionality of legislative acts and thus to declare besluiten unconstitutional. In his opinion, the Chief Justice, John Gilbert Kotze, examined the nature of constitutions in general and found that Alexander Hamilton’s view that a “Constitution is, in fact, and must be regarded by the Judges, as a fundamental law” was inescapably correct. IV Official Reports of the High Court of the South African Republic 29 (1897). An examination of the text of the Republic’s Constitution showed that it permitted the legislature to act by means of laws only and not by means of mere resolutions. IV Official Reports of the High Court of the South African Republic 32-33 (1897). Accordingly, Kotze declared that the “position that a Volksraad resolution has the force of law...is untenable.” (IV Official Reports of the High Court of the South African Republic 34 (1897). Kotze was joined in his view that the Court could exercise the testing right by Justice H.A. Ameshoff. The third justice, George Morice, evaded the question.)

The result in Brown, say Professors Hahlo and Kahn, was the then controversial holding that

The belief in speaking with one voice and the anxiety about what subjects might make of public judicial dissent can also be found on the imperial level. In 1901 there were discussions as to whether the practice of allowing dissenting judgments on the Privy Council should be altered. The Lord Chancellor, Lord Selbourne, feared that dissents might tend to create ‘great discontents in India and the Colonies’. He was ‘activated by the difficulty of satisfying public opinion in India rather than in this country...the dissentient judge’s opinion might be made the subject of great discussion in India’. This might be permissible in England, but not among ‘comparatively half-educated Hindoo lawyers’.

IV Official Reports of the High Court of the South African Republic 29 et seq. (1897).

H.R. Hahlo and Ellison Kahn, The Union of South Africa: The Development of its Laws and Constitution (Stevens & Sons, Ltd.: London,1960), p. 109.

“Notes on the Test Case”, prior to April 4, 1898, CWMG 3, p. 8 (1960 edition); “Notes on the Test Case”, April 4, 1898, CWMG 3, p. 10 (1960 edition).

Leonard pointed to two resolutions of the Volksraad that had been enacted subsequent to Law 3 and which themselves drew a clear distinction between places of residence and places of business. If Leonard could show that the legislature, by its own actions, drew this distinction, then the Court could rule for the plaintiff without contradicting the Volksraad. John Wessels, the counsel for the government, made a weak argument that one of the resolutions, rather than making the distinction, actually collapsed it. This was all Justice Johannes Esser needed; in voting for the defendant he openly bowed to a “legislative interpretation of [the] law....” (Tayob Hajee Khan Mohamed v. The Government of the South African Republic (F. W. Reitz, N.O.), V Reports of the Cases Decided in the High Court of the South African Republic 168 (1898) at 176.)

Justice George T. Morice, who also voted in favor of the defendant, did so in blatantly dishonest and unethical fashion. The text of Law 3 specifically stated that the Government may point out locations for habitation. When Morice set forth the text of Law 3 in his opinion, he simply – and conveniently – deleted this section. Morice thus unashamedly relieved himself of the necessity of deciding the central issue in the case. The only issue for Morice was whether the 1888 Sulieman decision was binding. Morice found that it was. Morice had a peculiar familiarity with the Suleiman decision, inasmuch as he had represented the Indian position in that very case. While Morice admitted in his opinion that he had represented the Indian side in Suleiman, (Tayob Hajee Khan Mohamed v. The Government of the South African Republic (F. W. Reitz, N.O.), V Reports of the Cases Decided in the High Court of the South African Republic 168 (1898) at 171), he apparently saw no conflict that would necessitate his recusing himself from the proceedings.

The third and final vote belonged to Justice Eduard Jorissen. He accepted Leonard’s argument and voted for the plaintiff, but, with the two-man majority against him, it was to no avail.

Bala Pillay, British Indians in the Transvaal: Trade, Politics and Imperial Relations, 1885-1906 (London: Longman, 1976), p. 77. For example, the Government issued a notice in November of 1898 ordering the Indians into locations as of July 1, 1899. The Government itself, however, was unable to complete site preparation by this date. See “Interview to The Star”, prior to July 27, 1899, CWMG 3, p. 90 (1960 edition).

“Transvaal Legislative Council: Asiatic Bazaar Question”, Indian Opinion, December 31, 1903.

“Dada Osman’s Appeal”, November 4, 1905, CWMG 4, p. 123 (1960 edition).

Of this time period, Donald Denoon has written that there is “an unusually great temptation to interpret Transvaal affairs in terms of personalities.” David Denoon, The Grand Illusion (London: Longman, 1973), p. xiii.

Gandhi’s replacement was another Indian barrister, George Godfrey. Mohandas K. Gandhi, An Autobiography: My Experiments with Truth (Boston: Beacon Press, 1957), p. 260. Little is known about Godfrey.

“Address to Chamberlain”, January 7, 1903, CWMG, 3, p. 271 (1960 edition).

“Address to Chamberlain”, January 7, 1903, CWMG 3, p. 271 (1960 edition). Enforcement of anti-Indian legislation by the South African Republic was oftentimes lax. “These special laws were not, however, enforced in their full strictness by the Executive Government of the Republic.” Assistant Colonial Secretary W.H. Moor, quoted in “Asiatics in the Transvaal”, August 13, 1903, Indian Opinion.

Locations were generally “as far away from business centres of the towns as they could possibly be.” “Notes”, November 16, 1903, CWMG 4, p. 48 (1960 edition).

“Law Respecting Coolies, Arabs, and Other Asiatics (No. 3, 1884)”, as amended, Staats Courant, No. 621, November 23, 1898.

“During the fifteen year period from 1884 - 1899 the Republic had a number of plans for the Indians, but it did not succeed in executing much of the legislation, partly because of Britain’s interest in events. Some of the Republic’s officials were not as determined as members of the Volksraad would have liked them to be. Inefficiency and inaction also accounted for delay; and in some instances the British ministers found it very difficult to resist the force of the British Agent’s arguments. As a legacy for the future, however, Britain’s attitude on the Indian question before the Anglo-Boer War raised hopes of better days to come under Imperial rule.” B. Pillay, British Indians in the Transvaal (London: Longman, 1976), p. 77.

“unrepealed”

“Address to Chamberlain”, January 7, 1903, CWMG 3, p. 271 (1960 edition).

“the Bazaar Notice”

“Government Notice: No, 356 of 1903", April 8, 1903, CWMG 3, p. 292 (1960 edition). Bala Pillay points out that the “Transvaal was not ready to introduce legislation to set its bazaar plan in motion so it chose the unusual course of serving notice of its intention to take steps to set up bazaars.” Bala Pillay, British Indians in the Transvaal, (London: Longman, 1976), p. 142.

Even before the issuance of the bazaar notice, the British position was clear, with the acting burgomaster of Johannesburg announcing to the Indian community in November of 1900 that the Republic’s laws would be enforced. B. Pillay, British Indians in the Transvaal (London: Longman, 1976), p. 89. The formulation in the immediate post-war period of the new government’s policies, with a strong anti-Indian flavor, provides another example. Pillay, id., 91, et seq.

“Letter to Chhanganlal Gandhi”, February 5, 1903, CWMG 3, p. 278 (1960 edition).

“Letter to G.K. Gokhale”, CWMG 3, p. 282 (1960 edition).

Mohandas K. Gandhi, An Autobiography: The Story of My Experiments with Truth (Boston: Beacon Press, 1957), p. 261.

“Letter to Gokhale”, February 23, 1903, CWMG 4, p. 282 (1960 edition).