Extract from the Report of the South African Native Affairs Commission 1903-1905, as chaired by Godfrey Lagden, Cape Town, 1905

HISTORICAL.

12. It is important, before proceeding further, to state briefly certain historical facts affecting the Natives of the Colonies and Possessions within the sphere of enquiry.

CAPE COLONY.

13. The Cape Colony became a Possession of Great Britain by its formal cession, during 1814 by the Prince of the United Netherlands in consideration of the payment of £6,000,000; an arrangement which was confirmed the following year by the International Congress of Vienna. British troops had then been in occupation for eight years, dating from the capitulation of Governor Janssens after the battle of Blaauwberg in 1806.

14. At that time the Colony was bounded on the east by the Fish River and on the north by Bushmanland, an almost uninhabitable tract of country south of the Orange River. Gradually it extended, until by the incorporation of East Griqualand in 1879. Pondoland in 1894, and British Bechuanaland in 1895, it reached its present limits. It embraces an area of 276,565 square miles, and has a population of 2,409,804, consisting of 579,741 Europeans, 1,424,787 Natives, 395,369 coloured people of mixed race and Malays, and 9,907 Asiatics. It has had Responsible Government since 1872.

15. The earliest known inhabitants of the Cape Colony were Hottentots and Bushmen, the latter a pigmy race of hunters, yellow in colour, without any form of government other than parental, and quite incapable of adopting the habits of European civilisation. The Hottentots were a nomadic pastoral people not dissimilar to the Bushmen in appearance. Whence they came is not known, but they appear to have been fully established as early as the 15th century. Their government was a weak despotism varying in efficiency with the character of the Chief.

Socially they were superior to the Bushmen, and they were able to adapt themselves to European modes of life. Few pure types of either race remain, though many of their characteristics are preserved in the coloured people who constitute a considerable proportion of the population.

16. The Natives inhabiting the eastern portion of the Colony today, known generally as the Kafirs, are an offshoot of the great Bantu race believed to have sprung originally from Central Africa.

They are first heard of in connection with South African history in 1593, when the "Santo Alberto " was wrecked on the coast south of the Umtata River, and words mentioned as used by the savages are readily recognisable as being of Bantu origin. In the 17th century the Fish River was the boundary between the Kafirs and the Hottentots ; in the 18th century Kafirs were encroaching on the Zuurveld west of the Fish River, and in 1798 a horde of them ravaged as far west as George, where they were turned back by the burghers of Stellenbosch. No Kafir tribe has at any time permanently established itself west of the Fish River.

The conquests of the cruel and tyrannical Zulu Chiefs Tshaka and Dingana at the beginning of the 19th century caused internal redistribution of the Xosa tribes, but the presence of European settlers in the Colony prevented the advance westward which would otherwise probably have taken place. The greater part of the Native population of the Colony is now to be found in the Transkeian Territories lying between the Kei and the Umzimkulu Rivers, where their traditional manner of life is more closely followed than elsewhere.

17. In 1880 an important Cape Colonial Commission upon Native Laws and Customs was appointed, and as an outcome of its recommendations the Transkeian Territories Penal Code was adopted.

It embodies in a convenient form the spirit of the statute and common law of the Colony, from which it differs only in providing for the punishment of criminal offences arising peculiarly from local aboriginal conditions and in the adoption of certain principles of the Native spoor law.

18. Reference to the annexed table [Annexure 7] will show the comparative increase of the European and Native populations of this and the other Colonies and Possessions where obtainable.

NATAL.

19. Natal was discovered by Vasco da Gama in 1497. In the years 1886-38 a large body of Dutch farmers from Cape Colony migrated thereto. In 1842 it was occupied by the British, and in 1843 was proclaimed a British Possession. It was treated as a district of the Cape Colony until 1845, when Letters Patent were issued creating it a separate Colony with a Lieutenant-Governor subordinate to the Governor of the Cape Colony. In 1856 Natal became a distinct Government, and in 1893 was given Responsible Government.

20. Zululand, with which had previously been incorporated the territories of the Native Chiefs Umbegeza and Sambana and the Amatongaland Protectorate, was annexed to Natal in 1897, and in 1903 the area constituting what is known as the Northern Districts was transferred from the Transvaal Colony and became part of Natal, which now embraces an area of 36,173 square miles and has a population of 1,108,754 consisting of 97,109 Europeans, 100,918 Indians, 6,686 coloured people, and 904,041 Natives.

21. In the early part of the last century the despotic rule of the Zulu Chiefs caused many of the formerly independent tribes to flee from Zululand and Natal. Many sections of tribes fled into the Cape Colony, largely contributing to the Native population there; others broke northwards into the Transvaal and Matabeleland, while some migrated across the Zambesi River into Central Africa.

22. During the rule of Tshaka and Dingana, Natal, as distinguished from Zululand, became transformed from a country with an estimated Native population of 100,000 to one with a few remnants of tribes who were forced to seek inaccessible parts as a refuge from their oppressors. Thus, on the arrival of the first Dutch settlers, there was hut a small Native population in Natal. From 1889 the year in which Dingana was defeated by the Dutch immigrants, and for some years after, many of the Native refugees from Natal returned from Zululand and other parts to re-occupy their ancient homes, accompanied by others who preferred the protection of the European settlers to savage rule.

23. In 1838 there were estimated to be in Natal proper about 10,000 Natives. These were all that were left out of the population of 100,000 believed to have been previously settled there. In 1843, many Natives having taken the opportunity afforded to return to Natal, the population had increased to 50,000 and is at the present time given at 700,668, exclusive of Zululand.

24. Law No. 19, 1891. of the Colony of Natal, enacts what is known as the Code of Native Law : it does not abrogate Native unwritten law and it comprises generally the main principles of Native law which were first codified in a more limited way in 1878. Law No. 19. 1891 has been repeatedly amended since 1898 when Responsible Government was given to Natal. It has not been extended to the Province of Zululand where uncodified Native law is administered. It has been extended to the Northern Districts recently transferred to Natal. The Native High Court, Magistrates and Chiefs administer Native law as already described under limitations as to jurisdiction defined by law. The Governor is Supreme Chief of the Native population in the Province of Zululand with powers and authority defined by section 7 of Law No. 14. 1887 and in the rest of the Colony as defined by this law, amended by Law No. 19. 1891 enacting the Code.

Chiefs have power to try all civil cases, divorces excepted, between -Natives. In the Province of Zululand they have considerable criminal jurisdiction, but in the rest of the Colony this jurisdiction is much narrower. Appeals from Chiefs may go to the Magistrates or direct to the Native High Court. In addition to Law No. 19. 1891 and its amendments, and uncodified Native law, the Natives of Natal arc also subject to special laws applicable to them only. Where the Code, or Native law, or special laws do not apply, then the Natives come under the ordinary Colonial law as applicable to Europeans.

ORANGE RIVER COLONY.

25. The settlement of this Colony by Europeans was brought about by the Great Boer Trek of 1836 from the Cape Colony. At that time the Dutch immigrants settled around Winburg and along the Caledon River, but it was not until 1848, owing to troubles between the European settlers and the Natives, that the territory was proclaimed part of Her Majesty's Dominions. In 1851 the British Government resolved upon its abandonment, and under the Convention of Bloemfontein it became an independent Republic under the name of the Orange Free State. In 19000 the Statewas annexed as a Crown Colony and is now known as the Orange River Colony. The area is about 55,180 square miles, with a population of 385,045 made up as follows :-143,419 Europeans. 6,160 coloured people and Asiatics, and 235,466 Natives.

26. This Colony has not within record been occupied to any large extent by Native tribes of importance, but in the early part of the 19th century portions of the country immediately north of the Orange River and extending to the Modder River were inhabited by Griquas, a people of mixed Hottentot and slave descent with an infusion of European blood. They were found there by the Dutch settlers when the latter arrived in 1838.

Towards the east the country was hilly and was occupied by the Basuto, with whom the settlers were more than once at war. In 1866 the Dutch defeated the Basuto Chief Moshesh, who was compelled to cede to them a great portion of his best agricultural land now known as the Conquered Territory and lying north-west and west of the present border of Basutoland.

27. The Native population is now made up from various tribes:

Basuto, Fingo, Bechuana, Bathlokoa, Koranna, and others of Hottentot and Bushmen descent, the prevailing type being Barolong, who are a branch of the Bechuana family. These fragments dispersed themselves among the European settlers, and their affairs have been administered under the common law of the country, subject to certain class legislation. The Natives are not allowed to acquire land.

TRANSVAAL.

28. As with Natal and the Orange River Colony, the first European settlers in the Transvaal were emigrant farmers who left the Cape in 1836. On the annexation of Natal many of these settlers recrossed the Drakensberg and settled, some in the Orange River Colony and others in the country north of the Vaal River. In 1852, under the Sand River Convention, their independence was recognised. In 1877 the South African Republic, as the country was then called, was proclaimed British territory. Retrocession followed in 1881, and in 1900 it was again annexed to the British Dominions. It comprises an area of 111,196 square miles, with a population of 1,268,716, consisting of 299,327 Europeans, 23,891 coloured people and Asiatics, and 945,498 Natives, of whom 133,745 are estimated to be Natives from other parts of South Africa temporarily resident for labour purposes.

29. The central and western districts of the Transvaal were the first definite resting-place of the large body of Zulus which under Umzilikazi fled from Tshaka's rule in 1817. The various Bechuana and Bapedi tribes then inhabiting the Transvaal were overwhelmed by Umzilikazi and either exterminated, driven away or compelled to submit to his rule. In 1830 Umzilikazi, fearing further attacks from Dingana's army, which he had fought the previous year, moved west, occupying the Marico district, whence he was ultimately driven north by the Dutch into the country now known as Matabeleland. The subdued and scattered tribes thenceforward enjoyed comparative immunity from war with other tribes, but they came into collision from time to time with the white settlers.

30. The majority of the Natives in the Transvaal belong to what may be called the central group of the South African Natives, i.e. the Bechuana and those tribes -whose people went to make up the present Basuto nation. There are. however, to be found many Natives of the Swazi, Zulu, Matabele, Shangana, Magwamba and other tribes living there, some under petty Chiefs, and others as independent families on private farms. The majority of the Natives in the Transvaal are to be found in the northern and eastern districts.

31. Up to 1885 there was no special law in the Transvaal for regulating Native administration. In that year the late Republic made legal provision for:

(1) The recognition of existing Native laws and customs not repugnant to the general principles of civilisation.

(2) The appointment of officers to exercise the authority formerly exercised by Chiefs.

(3) The constitution of the President as Paramount Chief of all Natives in the Republic.

32. By the Grondwet no equality between white and black was to be recognised in Church or State.

SWAZILAND.

33. Swaziland lies between the Transvaal, Natal and the Portuguese possessions.

It comprises an area of 6,536 square miles, with a population of 898 Europeans, 55 coloured people, and 84,531 Natives. The people belong to the Zulu-speaking race.

Though never incorporated with the late South African Republic, it came under the laws of the Republic for administrative purposes.

It is now a dependency of the Crown, administered by the Governor of the Transvaal Colony, and a special Commission is sitting to determine questions affecting its future settlement.

BASUTOLAND.

36. Basutoland comprises an area of 10,293 square miles, and is situated between the Cape Colony, Natal, and the Orange River Colony. It has a population of 348,848, of whom 895 are Europeans, 163 coloured people, 59 Asiatics, and 347,731 Natives.

37. The recorded history of Basutoland dates back to the early part of the 19th century. In those disturbed times a Chief of the Bakwena tribe, by name Moshesh, was living near the Caledon River.

A native of great resource and ability, he rose to eminence, and, taking up his abode at Thaba Bosigo, succeeded in gathering around him many of the remnants of Sesuto-speaking tribes which had been shattered by warlike marauders. In this fashion he mustered a great following and consolidated it into what is now known as the Basuto nation.

38. The recognition of Basutoland as a Native State took place in the year 1842. In 1852 an expedition under General Cathcart entered Basutoland to exact reparation from the Basuto for their depredations in the Orange River Sovereignty, and an action was fought at the Berea which resulted in the capture of a large number of cattle by the British and was followed by an expression of penitence from Moshesh. For the next sixteen years there was intermittent war between the Orange Free State and Basutoland, until, in 1868, the territory was proclaimed British and was annexed to the Cape Colony in 1871.

40. From the close of 1880 until 1884 the country was in a state of revolt and resistance to the authority of the Cape Government. This period ended in its disannexation by the Cape Colony, and administration was resumed by the Imperial Government in 1884.

41. The territory is administered by a Resident Commissioner under the direction of the High Commissioner for South Africa, in whom is vested the legislative authority, which is exercised by Proclamation.

42. The law of the Cape Colony as it existed in 1884 has effect so far as the circumstances of the country permit. Regulations provide for the establishment of Courts of the Resident Commissioner and Assistant Commissioners, and confer jurisdiction upon recognised Native chiefs in purely Native cases in which Native law may be administered. In all cases there is right of appeal to the Resident Commissioner.

RHODESIA.

43. That portion of the British South Africa Company s territories which falls within the scope of the Commission's enquiries is known as Southern Rhodesia, and comprises the Provinces of Mashonaland and Matabeleland, with an area of 143,830 square miles. The territory was, in 1888, declared to be under British influence and. certain powers of administration having been granted in 1889 by Royal Charter to enable it to carry out the objects for which it was formed, the Chartered Company occupied the country in 1 890.

44. In 1893 the Matabele came into conflict with the forces of the Chartered Company and were, after some severe fighting, reduced to submission. In 1896 fighting again ensued with the Matabele, who were joined by the Mashona, peace being finally established in 1897.

45. The population of the territory is set down at 605,764, made up of 12,623 Europeans, 1,944 coloured people and Asiatics, and 591,197 Natives, of whom 20,367 are residing temporarily in the country for labour purposes.

Tilt' Natives of Southern Rhodesia consist chiefly of -

a) The Matabele or Mandebele who inhabit the Province named after them and are the descendants of the great Zulu following which under Umzilikazi broke away from Tshaka's rule in 1817, and. after many warelike vicissitudes, settled between the Limpopo and Zambesi Rivers.

The Barozwe, a physically inferior branch of the Bantu race, then inhabiting that part, succumbed to their powerful enemies and, much reduced in numbers, retired into Mashonaland.

{b) The Mashona or Baswina, the inhabitants of Mashonaland, who are the descendants of the once powerful Makaranga tribe which in the early part of the 16th century was found living in the country south of the Zambesi stretching from the sea westwards. Discord and oppression destroyed the power of this tribe. The survivors are now divided into clans of varying strength, each under independent chieftains. During the latter half of the 18th century a number of small tribes from Central Africa found their way across the Zambesi and settled in Mashonaland. These people appear to have been of the same stock as the Makaranga, their language and customs being similar. Scattered about in the southern parts are to be found relics of the once fairly numerous Barozwe. The Mashonaland Natives suffered severely from the incursions of the Matabele and came under their sway.

47. The Province is administered under an Order in Council, which provides for a Constitution with large powers of control to the High Commissioner for South Africa.

48. The laws of the Cape Colony were adopted for administrative purposes until June, 1891 when fresh legislation ensued.

BECHUANALAND PROTECTORATE

49. This territory, which comprises an area of about 275,000 square miles and was proclaimed a British Protectorate in 1885 is governed by a Resident Commissioner under the direction of the High Commissioner. It has a population of 1,004 Europeans, 119,411 Natives, and 361 coloured people. The Natives are of the Bamangwato, Bakhatla, Barolong, Bangwaketsi and Bakwena tribes. Scattered through the Bechuana are families and individuals of the Bakalahari tribe who, formerly slaves, are still largely dependent upon the Bechuana for their livelihood.

ANNEXURE 7:

ANNEXURE 8:

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