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From the book: A Documentary History of Indian South Africans edited by Surendra Bhana and Bridglal Pachai
The Dealers' Licenses Act, passed by the Natal Legislature, empowered town councils and town boards to decide licence applications. In terms of the Law, their decision was final, and there was no appeal to the Supreme Court of the Colony. The following petition by Mohammed Cassim Camroodeen and others to the Secretary of State, Joseph Chamberlain, dated 31 December 1898, produced plenty of evidence to suggest that the Act was aimed at weeding out the small Indian storekeeper. They argued convincingly that the Act gave local boards the power to behave despotically. Source: Collected Works of Mahatma Gandhi, vol. 3, pp. 26-36.
That your petitioners hereby venture to approach Her Majesty's Government with reference to the Dealers' Licenses Act, against which your petitioners unsuccessfully protested last year.
Your petitioners might have approached Her Majesty's Government earlier, but it was their intention, first, to watch the operation of the Act patiently for some time, and to see whether the fears anticipated in the memorial submitted to Her Majesty's Government embodying the above protest were well-founded or not; and, secondly, to exhaust all the resources available in the Colony, and to obtain a proper judicial interpretation of the Act.
It is with great regret that your petitioners have to record that the fears expressed in the memorial above referred to have been more than realised, and that the judicial interpretation has been given against the British Indians in the Colony. In a case, herein below referred to, their Lordships of the Privy Council have decided that, from the decisions of the town councils or the town boards, there is no appeal to the Supreme Court of the Colony, under the above Act. This decision has paralysed the Indian traders. Consternation has seized hold of them, and there prevails amongst them a feeling of insecurity and a nervous fear as to what may happen during the ensuing year.
The troubles the Indian community is passing through are numerous. The working of the Immigration Restriction Act, against which also your petitioners ineffectually protested, is causing much vexation. Lately, the Government have passed rules under it whereby a fee of one pound is required from each person not being able to pass the tests imposed by the Act, and wishing to sojourn for from one day up to six weeks, or to pass through the Colony for the purposes of embarkation. While a memorial was being prepared in connection with these rules and other matters arising out of the above Act, the decision of the Privy Council came upon the Indian community like a bombshell, and all the other troubles dwindled into comparative insignificance in the face of the awful future awaiting the Indian traders. It has, therefore, become absolutely necessary to give the first place to the Dealers' Licenses Act.
The only hope of the Indian traders in Natal now lies in the relief that might be granted through the intervention of Her Majesty's Government. Your petitioners venture to claim in all parts of Her Majesty's dominions the same privileges and rights that are enjoyed by Her Majesty's other subjects, in virtue of the Proclamation of 1858, and more especially in the Colony of Natal, in virtue of the following statement in your predecessor's despatch with reference to previous memorials, viz, 'It is the desire of Her Majesty's Government that the Queen's Indian subjects should be treated upon a footing of equality with all Her Majesty's other subjects.' Moreover, your petitioners trust that Her Majesty's Government would be pleased to secure from the Colony of Natal, which owes its present prosperity to the indentured Indians, a fair treatment for the free Indians in the Colony.
All over the world, whenever necessary, Indian soldiers have been fighting the battles of Great Britain, and Indian labourers have been opening up fresh fields for colonisation. Only the other day, a Renter's cablegram stated that Indian soldiers would be requisitioned to train up the natives in Rhodesia. Can it be that the fellow countrymen of these soldiers and labourers are not to be allowed to earn an honest living in a portion of Her Majesty's dominions?
And yet, as will appear herein below, there is an organised attempt being made in the Colony of Natal not only to deny to the Indian traders the right of earning an honest living, but also to deprive them of such right which they have been enjoying for years past in the Colony; and the instrument whereby the European colonists in Natal hope to achieve their purpose are the above Act.
The Durban Town Council consists of eleven councillors, and is the premier corporation in the Colony. Of these councillors, one is an avowed and out-and-out opponent of the Indians. He played a leading part in the demonstration against the landing of the passengers on board the Courland and the Naderi early last year. He was noted for his most violent speeches. He has carried his hatred of the Indians into the portals of the town council, and has so far invariably, and irrespective of persons, opposed the granting of trade licences to Indians. As there are only two classes of Europeans — the one violently against the Indians, and the other indifferent — this councillor, as a rule, carries the day before him whenever a matter concerning the Indians comes for disposal before the council. The licensing officer appointed under the Act is a permanent officer of the corporation, and is, therefore, in your petitioners' humble opinion, more or less under the influence of the councillors. In a case presently to be referred to. Sir Walter Wragg, the first Puisne Judge, who was then acting for the Chief Justice, has thus observed about the danger of a permanent officer of a town council being appointed its licensing officer:
It has been suggested to the Court that an officer so appointed must have a certain amount of bias in his mind, because he was an officer permanently under the town council, and must be in the council's confidence. His lordship was not going to decide the matter on that point, but he could quite see that the licensing officer should be some person who was not in the town council service, and who was not in the confidence of the council. (The Natal Witness, 31 March 1898)
This licensing officer examines the pecuniary position of applicants for licences, asks them questions as to their stock, capital, and generally inquires into their private affairs. He has made it a rule not to grant a trading licence to any Indian who has not before held such a licence in Durban, whether the applicant has held a licence elsewhere in the Colony or not, whether he is an old resident or a new arrival, whether he is an accomplished gentleman knowing English or an ordinary trader, and whether the premises in respect of which the licence is sought are suitable in every respect and have been before licensed or not.
Somnath Maharaj, an Indian, early this year applied for a licence to carry on retail trade in the borough. His application was taken in. The licensing officer examined him at length as to his position. Nothing could be found against him. The sanitary inspector made a favourable report regarding the premises in which he intended to carry on his trade. An Indian storekeeper who had left for Johannesburg had just vacated the premises. The licensing officer, however, after having failed to find fault either with the person or with the premises, refused a licence without giving any reason for his decision. The matter was heard in appeal before the town council. It was proved that the applicant had served the Colony for five years under indenture, had been resident in the Colony for thirteen years as a free Indian, had by dint of perseverance raised himself to the position of a trader, had held a licence in Mooi River in the Colony over six years, had a cash capital of fifty pounds, held a piece of freehold land in the borough, had his dwelling house separate and some distance from the intended store, and had engaged the services of a European book-keeper to satisfy the requirements of the law. Three well-known European merchants certified as to his respectability and honest dealings. He was to trade in a locality mostly inhabited by Indians, and his custom was to be entirely Indian. Counsel for the applicant asked for the licensing officer's reasons for refusal, as well as a copy of the record of the application. Both these applications were rejected, and the town council upheld the licensing officer’s decision. An appeal to the Supreme Court was noted against the decision - not on its merits, for that Court had already by this time decided by a majority that, in virtue of the Dealers' Licenses Act, it had no jurisdiction to hear licence appeals on merits, but on grounds of irregularity: viz, that reasons were refused, that a copy of the record was withheld from applicant's counsel, and that the councillors with the town solicitor, the town clerk, and the licensing officer, while the appeal was being heard, retired for secret deliberation into a private room. The Supreme Court entertained the appeal, quashed the proceedings of the town council, with costs, in favour of the appellant, and directed a re-hearing. In giving the Court's decision, the Acting Chief Justice remarked:
What struck one, as being wrong in this case was that the copy of the record should be withheld. The application was made to the council for a copy of the record and reasons why the licence had been refused. There was nothing wrong in the application. It was one which, in the interests of justice, should have been granted. But it was refused. And when the appellant's counsel came before the council, he was in the dark as to the record, and he did not know what was operating in the mind of the licensing officer. It seemed to him that the action of the town council in this case had been oppressive…. It seemed to him that the refusal of both requests was unjudicial and an improper proceeding. (The Times of Natal, 30 March 1898)
Mr. Justice Mason:
considered the proceedings under appeal were a disgrace to the town council, and he did not hesitate to use this strong language. He considered under the circumstances that it was an abuse of words to say there had been an appeal to the town council. (The Times of Natal, 30 March 1898)
The appeal was reheard before the town council. This time a copy of the record was given; and when called upon to give further reasons for his refusal, the licensing officer stated: 'that the applicant had no claim whatever upon Durban, as the class of trade he was engaged in was sufficiently provided for in the town and borough.’ The officer's decision was however upheld, a councillor moving 'that it was undesirable that the licence should be granted in view of the fact that the percentage of licences already granted was in excess of the requirements of the population.’ The council took no notice of the facts that, only a few months before, there was a store-keeper in the premises sought to be licensed, that the store-keeper had left Durban, that, therefore, there was no question of increasing the number of licences, and that the landlords, who are Indians and were also represented, had, too, a claim for consideration at the hands of the council. The premises in question, which are only suitable for a store, have to this day remained practically vacant, causing a loss to the owners of £35 to date. Your petitioners venture to annex hereto a report of the proceedings of the first hearing of the above appeal before the town council, which clearly shows its spirit.
Mahomed Majam & Co. applied to the licensing officer for a trade-licence, with respect to premises belonging to an Indian gentleman who owns large pieces of freehold property in Durban, and whose principal source of income is renting of his properties to tradesmen. The licensing officer refused to grant the licence for reasons similar to those given in the case above referred to. The landlord appealed to the town council against the decision of the licensing officer. The town council dismissed the appeal. As a consequence, he, the landlord, was compelled to reduce the rent of his property, and Mahomed Majam & Co. are reduced to poverty, and have to live entirely on the work of one of their partners who is a tinsmith.
Hasam Mahomed is a hawker by profession. He has been a hawker before in Durban. He went to the licensing officer, and from him to the town council, but was denied the privilege of hawking. He told the council that to deny him that privilege was equivalent to asking him to court starvation. He had tried to earn his bread otherwise, but had failed, and was without capital to undertake anything else. He submitted to the council that he did not come in competition with any European, that hawking was practically a speciality of the Indians, who raised no objection to his getting the license; but all these representations were of no avail.
Mr. Dada Osman has been in the Colony for over fifteen years, has received a fairly good English education, was connected with the then premier Indian firm in South Africa, and has now a business in Umsinga in this Colony, and another in Vryheid in the Transvaal. This year he sent for his wife and children from India. As he could not find suitable society for his wife in either of the above places, and in order to meet the extra expenses required owing to the arrival of his family, he intended to settle in Durban, so that he could supply his business upcountry with goods himself, and also do some business in Durban. So sure did he feel of securing the licence that he rented a spacious building in a principal street in Durban from a firm of Indian merchants at £11 per month, bought over £100 worth furniture, and approached the licensing officer who, as usual, thoroughly went into his affairs, tested his knowledge of English as well as of book-keeping, and after having required Mr. Dada Osman to appear before him thrice, declined to entertain his application. Both the landlord and he appealed against the decision. Required by the town council, the licensing officer gave the following reason:
The Act 18 of 1897, as I understand, was passed with a view of placing some check on the issue of trading licences to certain classes of people, generally regarded as undesirables. And as I believe I am right in assuming that the applicant in question is one that would be included in that class, and moreover as he has never before had a licence in Durban, I have felt it my duty to refuse his licence.
It was thus, in this case, for the first time that the real reason for the refusal of so many licences was given in all its nakedness. A principal merchant of Durban, Mr. Alexander McWilliam, said in his evidence before the council:
I have known the applicant for a great number of years — 12 or 14 years. I have dealt very largely with the applicant. He has owed me at times as much as £500. My dealings with him have been perfectly satisfactory. I found him to be a very good businessman, and respectable. I have always been able to take his word for anything he says. ... As a ratepayer, I should have no objection to his getting a licence. I do not know whether he is capable of keeping books, but he can express himself well in English in writing. I should imagine from the way he writes here and the way he conducts his business he would be able to keep books. (Handed in a letter written by applicant.)
In addition to the facts related above about the applicant's position, the following was brought out in his (applicant's) evidence given in English:
My private family expenses are about £20 per month, apart from the store. I have a house apart from the store. . . . My house and store are lighted by electricity. ... I deal with S. Butcher & Sons, Randies Brother & Hudson, H. & T. McCubbin, L. Kehrmann, A. Pass & Co., M. Laurie, and others. I can write simple letters in English. I know bookkeeping. I have kept books in Vryheid. I keep ledger, journal, day, cash, stock, account, and invoice books. I know the single and double entry systems.
Mr Abdool Kadir, the landlord, said:
I am manager to the firm of M. C. Camroodeen & Co. . . . The store (in question) was licensed before. I, Timol, had a licence there.... I own 3 or 4 properties in Durban, of the total value of about £18,000 to £20,000, on the valuation roll. Most of this property I hire out to tenants. If Dada Osman does not get his licence, I shall lose rent. He is a very good tenant. ... I have known him a long time. He is living well. He has plenty of furniture in his house.... I am not satisfied with the decision of the licensing officer.
The council was reminded of the definition given by you to the Colonial Premiers, of 'an undesirable person', viz 'It is not because a man is of a different colour from ourselves that he is necessarily an undesirable immigrant. But it is because he is dirty, or immoral, or a pauper, or has some other objection which could be defined by an Act of Parliament.’ But all this proved to be a mere cry in the wilderness. The councillor, who had borne the Demonstration Committee's flag in 1897, and was ready to return 'by force, if necessary' the Indian passengers on board the Courland and the Naderi, 'failed to be convinced' that the action of the licensing officer was an error, and moved that his decision be confirmed. No one would rise to second the motion, and for a moment it seemed as if the town council was ready to do justice. But Mr. Collins, another councillor, came to the rescue, and seconded the motion in the following speech:
He was not surprised that there was a great deal of reluctance on the part of the council to refuse the license. But he believed that the license would be refused, and the reason was not because the applicant or the premises were unsuitable but because the applicant was an Indian. What Mr. Gandhi had said was perfectly true, and he (Mr. Collins) felt some relief in saying that most of these licenses had been refused principally on the ground of the applicants being Indians. The council was placed in a very unhappy position in having to carry out a policy which in the discretion of Parliament was considered necessary. Parliament, representing the community of Natal, had come to the conclusion that it was undesirable that the Indians should increase their hold on the trade of Durban. And it was on that account that they were practically called upon to refuse the licenses, which were not otherwise objectionable. Personally, he considered the refusal of the license a grievance to the applicant, who was a most suitable person to appear before the council to ask for a license. But it had been found expedient as a matter of Colonial policy, that these licenses should not be increased. (The Natal Advertiser, 13 September 1891)
It may be here remarked that Mr. Collins holds a prominent position among the public men of Natal. He has often occupied the position of the deputy mayor, and has more than once acted for the mayor. Coming as it did from such a source, the pronouncement was most painful, if also equally important. It is respectfully submitted that the Natal Legislature, if the then Prime Minister correctly voiced its feeling, never meant, as it would appear later, to go the length Mr. Collins did. The intention of the Legislature was to prevent new comers — by no means all new comers — being Indians, from obtaining licences; and your petitioners venture to feel certain that, had the view taken by Mr. Collins of the Act been placed before Her Majesty's Government, it would never have received the royal assent. Mr. Collins evidently seems to think that the Parliament represents only the European community of Natal. Your petitioners can only say that it is lamentable, if it is true. The Indians were told differently when the attempt was made to disfranchise them entirely. Again, Mr. Collins thought the granting of the licence in question would mean an increase; as a matter of fact, the premises sought to be licensed had been licensed for the year; they had become vacant as the licence-holder had suffered misfortune and stopped business. The present applicant, therefore, would not have added to the number of licence-holders in the borough.
Mr. Labistour, another councillor, and a prominent local advocate, was so disgusted with the whole procedure that he thus gave vent to his sentiments:
He had purposely refrained from attending the meeting owing to the anomalous policy pursued in appeals of that kind. He disagreed with the dirty work they (councillors) were called upon to do. If the burgesses wished all such licences stopped, there was a clean way of going about the matter: viz, getting the Legislative Assembly to enact a measure against the granting of licences to the Indian community. But, sitting as a court of appeal, unless there were good grounds to the contrary, the licence should be granted. (Ibid.)
Mr. Labistour having, as he said, come purposely late could not vote, and the motion was carried unanimously, and the appeal dismissed.
In your petitioners' humble opinion, it is almost impossible to imagine a stronger case than the above, or greater injustice than that done by the Durban Town Council — a town council of a British Colony — sitting in appeal as a judicial body. It has put a premium upon insanitation and questionable trade practices. What incentives could your petitioners hold out to the weaker members of the Indian community? They, the weaker members, might say: 'You ask us to adopt the modern sanitary methods, and live better; and you promise that the Government would deal fairly by us: we don't believe this. Does not your Dada Osman live as well as any European on the same platform? Has that meant anything to the town council? No; whether we live well or live ill, we would fare neither better nor worse.' The European colonists have been proclaiming that they would have no objection to respectable Indians living in the modern style. Your petitioners have always contended that the objection on the ground of alleged insanitation is a mere fiction, and the Durban Town Council it would appear has proved the contention.
The Newcastle Town Council has, however, gone one better than they Durban body. Its licensing officer, apparently acting under orders, refused to grant the licences this year, under the Act, to each and every one of the eight Indian storekeepers that had held the licence last year. Such a wholesale refusal struck terror in the hearts of the Indian traders in the Colony. Suspension of the trade of these storekeepers would have not only ruined them and their dependants, but would also have resulted in the collapse of some houses in Durban which support them. The assets of these men were then estimated at over ten thousand pounds, and hands directly dependent on them were over forty. At great expense, therefore, Mr. Laughton, a leading advocate, was engaged to carry the appeal to the town council; and, as a result, six licences out of nine (held by eight store-keepers) were granted. The remaining three, having been refused, the three holders thereof appealed to the Supreme Court which, by a majority, threw out the appeal on the ground that, in virtue of section 5 of the Act, it had no jurisdiction to entertain it. As the matter was very important, and as the Chief Justice dissented from the other two Judges and favoured the contention of the appellants, the matter was taken to the Privy Council. A cablegram from the appellants' solicitors in London states that the appeal has been lost. It must in justice be said that the Newcastle Town Council has been gracious enough to allow the three storekeepers, pending the appeal, to continue their trade. Its policy, however, is unmistakable. It would have wiped out the Indian from Newcastle if it could have done so with decency, and without stir, regardless of the consequence to the parties affected. The reasons given by the licensing officer for his refusal were the same with reference to all the above licences: viz, 'The report framed by the sanitary inspector in terms of sec. 4 of the rules under Act 18 of 1897, in connection with this application being of an unfavourable nature, and the premises not being fit for the intended trade, as required by sec. 8 of the Act referred to, the application was refused by me.’ None of the applicants knew anything about the sanitary inspector's report or the licensing officer's reasons, before their licences were refused; nor were they asked to make any improvements or alterations in their premises. The reasons were furnished by the licensing officer only after he was required so to do by the town council when the matter came before it in appeal. After the three applicants were refused their licences, and they came to know why the licences were refused, they offered at once to make such alterations in their premises as the sanitary inspector may suggest; but the licensing officer would not hear of it, and declined to entertain their applications on the ground that the town council had already decided to sustain his previous decision. It may be here remarked that the applicants never admitted that their premises were in an insanitary condition, and had produced medical evidence to prove that the premises were in a satisfactory condition. Your petitioners attach hereto an extract from the record of proceedings before the town council, which would show more fully the case for three applicants. The Newcastle Town Council consists of 8 councillors — a medical practitioner, a solicitor, a carpenter, a canteen keeper, a miner, a bookseller and two store-keepers. The licensing officer is also the town clerk, who would be the clerk of the court when the town council sits in appeal against the decision of the licensing officer.
The Dundee Local Board, however, promises to outdo both the Durban and the Newcastle Town Councils. In November last, the licensing officer granted a trade licence to a Chinaman, and a majority of the ratepayers appealed against the decision of that officer. The local board, by a majority of 3 to 2, cancelled the licence solely on the ground that the applicant belonged to the Chinese nationality. The applicant's solicitor, in his notice to the local board of appeal against its decision, recited the following grounds of appeal:
(1) That your board, by reason of certain of the members on it being merchants and storekeepers and holders of retail licences, was unable and could not possibly deal with the subject matter of appeal without prejudice to Hoi-Lee & Co.'s interests.
(2) That the constitution of your board was such that several of the members of it were personally and directly interested pecuniarily in the refusal of the retail licence to Hoi-Lee & Co., and should not therefore have sat on your board and voted on the question.
(3) That certain members of your board who sat showed personal animus and bias against the firm of Hoi-Lee & Co., on account of the members being natives of China, and one in particular stated: I would not even give a Chinaman the chance of a dog.'
(4) That no evidence or legal proof was adduced by the appellant ratepayers that Hoi-Lee & Co. were undesirable persons to have in the community.
(5) That no evidence or legal proof was adduced by the appellant ratepayers that the premises that had been licensed by the licensing officer were totally unfit and unsuitable for business purposes, pending erection of the premises agreed to be erected by the landlord under his lease with the said Hoi-Lee & Co.
(6) That the decision and resolution of the board was inequitable and unjust both in equity and law.
What happened to the Chinaman who appears, from the record of the case, to be a British subject, is not unlikely to happen in the case of the Indians. The Supreme Court refused to entertain the appeal in the above case in virtue of the decision in the Newcastle case referred to above.
In November last, a meeting was convened by the chairman of the Dundee Local Board at the request of the rate-payers 'to discuss the advisability of allowing Asiatics to trade in the township'. There are at present about ten Indian stores in Dundee. The following extract from the proceedings of the meeting will show how the local board proposes to deal with them next year:
Mr. C. G. Wilson (the chairman of the local board) made a very good impression with his remarks. He defended the action of the board in all matters, and said it was their endeavour, if possible, to rid the town of the Asiatic curse. They were not only a curse here, but to the whole Colony of Natal. He assured the meeting that their actions in the case of the Chinaman were disinterested and unbiased, and they honestly did what they thought to be their duty to the towns, by canceling the licence. He hoped they (the rate-payers) would show, by strongly expressing their opinions that they meant to abolish this curse.
Mr. W. L. Oldacre (a member of the board) said that he and other members of the board did what they thought to be right; and assured the meeting that there was no bias attached to its proceedings, and they could depend upon him doing his duty as a member of the board.
Mr. S. Jones then proposed that the local board do all in its power to prevent the granting of further licences to undesirables; that the licensing officer also be instructed to this effect; and that steps be taken to cancel as many of these licences as possible. This proposition was unanimously carried, amidst, cheers.
Mr. C. G. Wilson wished to thank the meeting for the decision arrived at, as it had greatly strengthened the hands of the board, who would act upon the decision of the meeting.
Several other gentlemen having spoken, Mr. Hastings proposed that the town clerk and licensing officer should be two separate persons.
Mr. Wilson said he was of opinion that it would be far better to have the officers remain as at present then if the licensing officer did not act as the board did in matters such as these, they had their remedy. (The Natal Witness, 26 November 1898)
The undesirables referred to in the preceding extract are, of course, the British Indian traders of Dundee. Here there is a frank avowal of the policy the Dundee Local Board intend to pursue. The licensing officer has received, and is still further to receive, from the appellate body created by the Act, instructions as to what he is to do; and thus, the aggrieved parties are to be deprived of the right of placing their case before two tribunals contemplated by the Act: viz, the licensing officer and the town council or the local board, as the case may be. These are only some of the instances that have come under your petitioners' notice which conclusively indicate the policy the various town councils and local boards would pursue if unchecked.
Your petitioners are free to acknowledge that the other town councils and local boards do not appear as yet to have shown any desire to act in an oppressive manner; though there, too, it is practically impossible to obtain new licences even for old-established Indians. The power, your petitioners were almost going to say, the despotic power, given to them under the Act is there, and there is no guarantee that they will not copy the example set them by Durban, Newcastle, and Dundee ....