Published date
Related Collections from the Archive
From the book: A Documentary History of Indian South Africans edited by Surendra Bhana and Bridglal Pachai
On 2 April 1895, Chief Justice Melius de Villiers delivered his decision on Law 3 of as amended in 1886. With regard to this law, the British Government maintained that it did not restrict Indian trade to any part of a town, although Asiatics might be confined to some quarters for sanitary reasons. The Republican position was that the law empowered the State to restrict Asiatics to defined areas for purposes of both trade and residence. The De Villiers decision disallowed both positions and reserved to the tribunals of the country 'sole and exclusive interpretation' of the law in the matter. In the document below, the first part of the petition submitted by Indians in the Transvaal to Lord Ripon is reproduced. Source: Collected Works of Mahatma Gandhi, vol. 1, pp. 201-4.
Your petitioners respectfully venture to approach Your Excellency in connection with their position in the S.A.R., especially as affected by the award lately given by the Chief Justice of the Orange Free State in the Indian Arbitration case.
2. Your petitioners, whether as traders, shopkeepers' assistants, hawkers, cooks, waiters, or labourers, are scattered over the whole of the Transvaal, though the greatest number is settled in Johannesburg and Pretoria. Of traders there are nearly 200 whose liquidated assets would amount to nearly £100,000. Of these about three firms import goods directly from England, Durban, Port Elizabeth, India, and other places, and have thus branches in other parts of the world whose existence mainly depends upon their Transvaal businesses. The rest are small vendors having stores in different places. There are nearly 2,000 hawkers in the Republic who buy goods and hawk them about, while those of your petitioners who are labourers are employed as general servants in European houses or hotels. They number about 1,500 men, of who about 1,000 live at Johannesburg.
3.Your Excellency's petitioners, before entering into a discussion of their precarious position in the State, would with the greatest deference venture to point out that your petitioners, whose interests were at stake, were never once consulted as to the arbitration, that the moment the question of arbitration was broached, your petitioners protested both against the principle of arbitration and against the choice of the arbitrator. Your petitioners conveyed the protest verbally to His Honour the British Agent at Pretoria, who, your petitioners here take the opportunity to say, has always been most courteous and attentive to those of your petitioners who had occasion to wait upon him from time to time in connection with the grievances of the Indians in the Transvaal. Your petitioners would also draw Your Excellency's attention to the fact that even a written protest was sent to Her Majesty's High Commissioner at Cape Town. However, your petitioners by dwelling upon the matter do not at all wish to cast the slightest reflection on the high mindedness or probity of the learned Chief Justice of the Orange Free State or to question the wisdom of Her Majesty's officers. Having known the bias of the learned Chief Justice against the Indians, your petitioners thought, and still humbly venture to think, that he could not, in spite of his most strenuous efforts to do otherwise, bring to bear upon the question an equibalanced judgment that is so necessary to a right and proper perception of the facts of a case. Judges having a previous knowledge of cases have been known to refrain from deciding them, lest they should unconsciously be led away by preconceived notions or prejudices.
4.The reference to the learned arbitrator in the case submitted on behalf of Her Majesty's Government runs thus:
The arbitrator shall be free to decide either in favour of the claims put forward by Her Majesty's Government or by the South African Republic, or to lay down such interpretation of the said Ordinances, read together with the despatches referring to the question, as shall appear to him to be correct.
5.The award as published in the papers is as follows:
(a) The claims of Her Majesty's Government and of the Government of the South African Republic respectively are disallowed, save and except to the extent and degree following, that is to say:
(b) The South African Republic is bound and entitled in its treatment of Indian and other Asiatic traders, being British subjects, to give full force and effect to Law no. 3 of 1885, enacted and in the year 1886 amended by the Volksraad of the South African Republic, subject (in case of objections being raised by or on behalf of any such persons to any such treatment as not being in accordance with the provisions of the said law as amended) to sole and exclusive interpretation in the ordinary course by the tribunals of the country.
6.Now, your petitioners humbly submit that the above award not being in terms of the reference is void, and that Her Majesty's Government is not, therefore, bound by it. The very object with which the arbitration was decided upon is, it is respectfully pointed out, frustrated. The reference leaves it to the arbitrator eitherto allow the claims of one of the two Governments orto lay down such interpretation of the Ordinances as may appear to him to be correct, regard being had to the despatches referring to the question. Instead of interpreting, the learned arbitrator has delegated the interpretation, and in delegating has, moreover, limited the delegation to such persons as, by the very nature of their position, cannot possibly avail themselves of the procedure and evidence that could be availed of, nay that was expressly stipulated to be availed of, by the arbitrator, and that would tend to enable them to lay down such an interpretation as would be just and equitable, though, perhaps, not strictly legal.
7.The award, your petitioners submit, is invalid on two grounds. First, because the arbitrator had delegated his function, which no arbitrator in the world can do. Secondly, the arbitrator has failed to keep to the reference, inasmuch as he has left undecided the question that he was expressly called upon to decide.
8.The object, it would seem, was not to have the question of interpretation decided in a law-court, but to terminate the question once for all. Had not such been the case, Her Majesty's Government would never have entered into the voluminous correspondence with regard to the question of interpretation as found in the Transvaal Green Books, nos. 1 and 2, 1894. The question that was to be, and your petitioners submit can only be, decided diplomatically and politically has been left, if the award is to be valid, to be decided judicially only. And if it is true that the Chief Justice of the Transvaal has already expressed his opinion in the case presented on behalf of the Transvaal Government, the decision of the question is almost a foregone conclusion”¦.
9.But your petitioners' appeal to Your Excellency is on higher and broader grounds; your petitioners have every confidence that the question that affects thousands of Her Majesty's subjects, on a proper solution of which depend the bread and butter of hundreds of British subjects, and a technical solution of which may bring ruin to hundreds of homes and may leave them penniless, will not be left to be decided merely in a court of law where everybody's hands are tied down, and where such considerations find no place. So far as the traders are concerned, if the contention of the Transvaal Government is ultimately upheld, it means absolute ruin to them, and not only to them personally, but to their families and relations and servants, both in India and the Transvaal, who are dependent upon them. It is impossible for some of your petitioners, who have been trading for a long time in the Transvaal, to seek 'pastures new' and manage to keep body and soul together, if they are driven out of their present position through no fault of their own, but merely, as will be seen presently, because of the misrepresentation of a few interested persons.