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Proto-Apartheid at an Eastern Cape town

6. The Mvalo
Stick Case

Keith Tankard
The Time Traveller
Updated: 14 December 2009
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In August 1892 William Mvalo, a visitor to East London, disembarked from a train at the Terminus Street station. He carried his belongings securely wrapped inside a blanket, his fighting stick or "knobkerrie" protruding at one end. As he exited into Terminus Street, he was arrested by the police for contravening municipal regulations, appeared before the Magistrate and was sentenced to a fine of £1 while forfeiting the offensive object, his stick.

THE LOCATION ACTS AND THE START OF LEGAL SEGREGATION

Mvalo's case was nothing new. The stick regulation had been in existence at East London since 1883 and during the intervening nine years many had been prosecuted for infringements. Most of the offenders would, like the accused, have been strangers to the town because the local Black township residents were well aware that Location Inspector Percy Potter, who regulated all aspects of African life in the town, never hesitated to apply the letter of the law. What made Mvalo's prosecution important, however, was the fact that he was the first person to appeal against the verdict and his action set in motion a chain of events which would irrevocably alter the Black person's lot both at East London and in other towns of the Eastern Cape.

Legal segregation at East London had its roots in the early years of the port. When the municipality took control of the locations in 1876, it inherited a system which had operated as law during the previous 25 years. In a sense the Town Councillors had nowhere else to look for guidance. The other towns of the Eastern Cape, centres like Port Elizabeth and Grahamstown, had locations which had evolved as a natural appendages to the White urban areas, Black suburbs and neighbourhoods rather than distinct ethnic villages. Although curfews existed as a protection for the White residents, the location regulations were seldom consistently enforced.

Because of East London's unique history, on the other hand, the West Bank Location was very quickly established as an ethnic village that was quite separate from the town, geographically isolated and with its own unique system of location regulations. In many ways, the location was more closely akin to a military camp under permanent martial law than to a racially divided neighbourhood under civil administration. That was the system that the East Londoners knew well and understood, and it was the road which they therefore chose to follow.

The promulgation of the Colony's Location Act in 1876 merely served as an extra legal hold to underpin the entire system. It was a particularly draconian piece of legislation which placed all rural Black communities under near-military control, although its primary objective was to bring private locations under legal supervision. It was also made applicable, however, to those municipalities which chose to adopt the provisions of the Act for the "better control" of their African populations, and East London was one of these.

The outbreak of the Gcaleka War in 1877 was the catalyst which excited the East London municipality into adopting the Act. Even at that stage the White community at the port still saw itself as a frontier society which was nervous of the otherness of the amaXhosa. The eruption of yet another frontier war aggravated these tensions, a fact clearly illustrated by an amusing incident which occurred soon after the start of hostilities. On a Saturday afternoon in February, a number of Black people were seen on the brow of the hill behind the town on the West Bank. The White populace instantly panicked and thought it was being attacked, sent out the alarm and the military at Fort Glamorgan was called to repel the enemy. The adversary, however, turned out merely to be labourers returning late from their work at the harbour.

Nervousness nevertheless caused the Town Council to take a long and hard look at its location system. The local Dispatch newspaper, always a good barometer of public sentiment, summed it up in an article which decried the fact that the Black townships were "swarming" with people. There was no wonder at the thefts committed, the editor concluded, when there was no supervision. In essence, however, the editorial comment indicates a gross lack of knowledge of the real nature of the location population. The breakdown in supervision during the transition to municipal control meant that there was no clear idea even as to the number of people living there. The editor estimated a population of 2 000 which was hopelessly exaggerated because as late as 1885, when heads were counted for the first time, it was found that there were only 752 location residents, scarcely a third of the Dispatch's 1878 estimate.

By February 1880, with the establishment of Newsam's Town and the Wesleyan Location and the prospect of creating another new location on the West Bank, it was resolved to apply the entire Locations Act to East London. The 1880s then witnessed the unchecked manipulation of the Black community. This was something that the Town Council was able to do because there was nobody to watch over African interests apart from a few philanthropic White individuals like Richard Rose-Innes.

Many of the other centres in the Eastern Cape, places like Lovedale and Healdtown, had long been nuclei of mission activity which had produced educated Black people who then became the core of an embryonic political force. East London, on the other hand, had none of these institutions, apart from a few poorly attended night schools, and the Town Council put every obstacle in the way of even these humble establishments.

ECONOMICS AND DISCRIMINATION

One more factor in the development of race consciousness at the port was undoubtedly the descent of another crippling recession after 1881. The Cape Colony had had a buoyant economy between 1868 and 1882, not only because the discovery of diamonds in Griqualand West provided the Colony with mineral wealth but also because it created new inland markets. The granting of Responsible Government in 1872 further boosted confidence in the country.

During the two years from 1876 to 1877 there was a minor relapse in the economy because growth had been too rapid and the export of wool and diamonds declined but the downturn was short-lived. Further expansion of the diamond mines, together with better agricultural conditions, saw rapid expansion between 1879 and 1881. It started with the annexation of the Transvaal in 1877 which boosted investor confidence through the establishment of British administration over the former Boer republic. The Gcaleka War thereupon caused an artificial increase in the White population of South Africa in the form of imperial soldiers, which in turn led to a rise in trade and exports.

The boom period nevertheless led to over-speculation in diamond shares as well as an over-extension of credit, and was followed by a period of extreme drought which crippled the agricultural market. The outbreak of rebellion in the Transvaal in 1880 and the restoration of independence in 1881 saw investor confidence collapse, while the economy was further crippled by a withdrawal of funds by the Imperial Government. As a result of the battering from all sides, South Africa tumbled into its worst recession of the 19th century, what contemporaries called the Great Depression.

Although Samuel Saul argues that it was not a "great" depression at all but rather an economic slump which affected different countries at different times, its effects on the Cape Colony were so severe that it was indeed a depression in every sense of the word. The East London harbour works, which had been progressing steadily since 1872, ground to a total halt as all but the essential workers were dismissed. The municipality, which was the second biggest employer, carried out only essential services. The dark times led to increasing bankruptcies and escalating unemployment which affected the entire spectrum of the community.

The Town Council, however, recognised only the "great distress" which existed among the White population and retrenched its entire Black labour force, whom it paid at the rate of 2s. 6d. per day, so as to take on Whites at a shilling a day more. Such a step, the Mayor reported, proved a "real relief" to a large number of "industrious men who were willing but unable to find other work". As many as 40 Whites were thereby employed as labourers at a time, at an average of 29 men per day.

While the decade up until 1880 had therefore witnessed the segregation of the population into White and Black communities, the years of the Great Depression, on the other hand, saw the African people emerge as a dispensable community which could be retrenched at any time so as to relieve the hardship within the White sector. The 1880s were therefore to be a formation stage for the Black community during which social and political consciousness would be conceived, to be born in the 1890s after the traumatic forced removals of the East Bank locations. In the meantime the townships would be ruled with an iron fist. A curfew forced the residents indoors soon after dark. They were forbidden to bathe on East London's beaches which became White preserves. They were banned from brewing their own traditional beer and in 1883 they were prevented from carrying their fighting sticks into town.

By 1890 several changes were also taking shape on the political front in the Eastern Cape. The Colonial Government had long claimed its reputation as a non-segregated body whose criterion for full participation lay in what it called "civilization". Whites of course were regarded as "civilized" and Blacks were invited to participate by the carrot of "equality". Once an African attained a certain level of financial independence, he became legally "exempted" from the various Location Acts and was then recognised as an "equal" although, as André Odendaal points out, the Whites tended always to be "more equal" than the others.

Because education fostered economic advance, it became the passport to a better life. By the end of the Gcaleka War, therefore, many Africans were turning from resistance to co-operation, with the idea of using the system to better their community's interests. During the 1880s, African political associations were also taking root. Between 1882 and 1886 the number of Black voters in several eastern Cape constituencies increased rapidly so that by the end of the 19th century there was a sizeable class of politically conscious Black people in the Colony and the number of educated persons was growing significantly.

East London could not escape the evolution, especially once the dust had settled on the dispute over the relocation of the Black townships. Indeed, the forced removals had two direct consequences. First, it created one large, fully integrated community of amaXhosa, Mfengu and "Hottentot" residents who proved quite capable of ignoring their differences and living in peace. Second, it was essential for the Black community to present a united and organised front to resist further disruptive actions by the Town Council.

Furthermore, the attitude of the councillors was divided as regards the rise of the educated class of Black person. Some, like John Gately, applauded it as a welcome advance into western civilization and wished to do all in their power to foster the movement. Others, like Henry Willetts of North End, were opposed to it and wished to see a totally segregated community. Many in fact seemed not to understand that the status of the "exempted" was protected by law and they were quite happy to issue municipal regulations which were at odds with colonial legislation.

The major area of conflict was the White community at North End. That neighbourhood had evolved from one of the German acre settlements of the late 1850s but, because of the lack of municipal regulations to govern the subdivision of plots, many of the erven had been cut up and re-sold as sub-plots. This resulted in overcrowding and a subsequent depreciation in the value of the property.

The area therefore suffered degeneration and quickly became a residential area of the lower socio-economic population. Moreover, because of its position relative to the East Bank Location, it became the ideal residential area for the wealthier "exempted" Africans who found the rents more reasonable and the proximity to their friends and relatives in the locations useful. North End therefore became the major mixed community of East London.

Sporadic attempts were made to alter this situation. The first was in August 1884 when Councillor Willetts tried to have even the "exempted" Africans expelled to the locations and, although such a move was illegal, the idea was occasionally resurrected. In his annual report of February 1896, Location Superintendent Percy Potter called for regulations to remove all Africans from the town and in February 1901 his successor, Charles Lloyd, again called for their removal. Nevertheless, these demands were in vain because there were now too many watchdogs in both the legal profession and in Parliament to allow the Council to violate the status of the "exempted" in such a flagrant manner.

THE MVALO STICK CASE

There was initially little outward antagonism on the part of the large East Bank community towards the segregation-minded White ratepayers. Indeed, they trusted that the Council would act with justice and were quick to applaud any measures which bettered their lot, while their public response to racist councillors revealed control and was devoid of resentment. On the contrary, they pleaded for stricter control which, they said, would foster a more peaceful and healthier existence within the locations. Later they would turn their attention to countering racist regulations but always in response to growing prejudice on the part of the Town Council.

By 1890, however, racial tension was indeed growing and it merely required a spark to inflame the mass. In a sense the unjust destruction of the various locations and the forced removals to the new East Bank Location was such a spark. That event certainly fomented resistance and, after the municipality had gained its way by legal means, the location people turned to the creation of a Native Vigilance Association to act as watchdog to their interests. The Mvalo Stick Case was another such spark but in the opposite direction because it stimulated the Town Council to seek permission to introduce legal discrimination and so radically alter the meaning of the Cape's "colour-blind" constitution.

When Mvalo appeared before the Magistrate, his defence argued the accused's right to carry a "stick" within the limits of the municipality on the grounds that the Cape Colony's constitution did not allow for racial discrimination. The "stick regulation", it was contended, was racist because it pertained only to Black people and as such was in contradiction to colonial law. It was therefore illegal. Whites were allowed to carry sticks within municipal limits at all times and consequently the same rule had to be accepted for Black people.

The prosecution, on the other hand, argued that the regulation was important for the better administration of the town. Africans, they claimed, readily resorted to using their sticks when in a fight whereas Whites used only their fists. The magistrate agreed and issued judgement that the bye-law was perfectly legal. He ruled that the 38th Section of Act 23 of 1880 provided the East London Municipality with power to frame regulations "generally as may seem mete for the good rule and government of the Municipality" and Regulation 232 fitted that description. Mvalo's claim was therefore dismissed.

The verdict was questionable, however, because the lengthy 38th Section of Act 23 merely outlined the circumstances when the East London Municipality had power to frame regulations. It did not confer authority to frame bye-laws which were in contradiction to the Cape's constitution. Mvalo therefore appealed against the decision and so East London's location regulations were examined for the first time in the wider context of Colonial law. It was argued in the Eastern Districts Court that the stick regulation was an attempt at "class legislation" because only Black people were forbidden to carry sticks.

Mvalo won the appeal. In his judgement, Mr Justice Jones stated that authority to make class legislation was the sole prerogative of Parliament and until the power "to distinguish between inhabitants of one class or colour and of another" had been specifically conferred upon the municipality, the East London Town Council could not frame such discriminatory regulations.

This verdict had an immediate effect on East London's Black community, many of whom now began a deliberate campaign of defying municipal authority. Their idea, the editor of the Dispatch wrote, was that the superior authority had upset "the pretensions of the local powers" and that the Mayor and Town Council could be more or less ignored and their regulations "treated as waste paper". By October 1892 Superintendent Potter reported that "sticks" were "rampant" in the location and that "good order and quiet" was fast becoming a thing of the past.

So perturbed was the Council at its seeming loss of face that it decided to appeal to the Supreme Court and the case was fought for a third time but the verdict in November 1892 again upheld Mvalo's claim. The bye-law was "unreasonable", the court decided. Africans could have their sticks confiscated merely "by having them", the judge stated, even if they were peacefully disposed, as in Mvalo's case. Furthermore, the regulation made no mention of sticks being confiscated because they were dangerous weapons and, as it stood, a Black person might have his stick in a bag or wrapped up in a blanket and still have it confiscated.

INTRODUCING LEGAL SEGREGATION

The "celebrated Stick case", as Mayor David Rees called it, was a landmark judgement and focused the Council's attention on the legality of its other racist regulations. The judgement, particularly that handed down by the Eastern Districts Court, revealed serious implications not only for the East London Council but for other municipalities because of the doubt which now existed as to the legality of regulations which were specifically aimed at the Black community but not directly provided for by statute.

It was not enough that a bye-law appeared reasonable, Mayor Rees explained to his Council. It had also to be reasonable "within the meaning of the Statute". The "Stick Case" had, he said, "emphasized in a marked degree" that, if further regulations were to be framed for the control of the locations, it was first necessary to be in possession of an Act of Parliament. It was therefore essential, he concluded, that "no time be lost" to secure additional powers to "deal with the natives".

Two problems particularly troubled the East London municipality, namely the "stick" issue and the brewing of traditional beer within the locations. The latter was a headache which had dogged the municipality in its early years but was eventually brought under control through a bye-law passed in August 1884 giving the Location Inspector power to destroy the beer whenever he came across it.

The regulation appeared to achieve its aim but towards the end of 1892 drunkenness was perceived to be on the increase, largely because judgement in the "Stick Case" caused the municipal regulation on traditional beer to fall into the same category of racist legislation. For a while, therefore, municipal authority weakened and 1893 became a "stormy" year, the Inspector said, with "disorderly conduct" and faction fights a common occurrence. Stone throwing had also become a regular past-time, particularly in the direction of the Location Inspector's house.

The Council therefore turned its immediate attention to the eradication of what it called the two "nuisances" through the submission of a Private Bill to Parliament. By the time the draft Bill had been prepared, however, it was too late for it to pass during that session and John Gordon Sprigg, East London's "senior" Member of Parliament, recommended instead that a "public measure" be passed to "ease the difficulties". Since it needed the support of the wider community, the Port Elizabeth and King William's Town municipalities were thereupon "advised and requested" to urge the introduction of the Bill and to offer support.

The Bill became an Act of Parliament in 1893 and gave considerably increased powers to Borough Councils to enable them to pass various additional regulations for the governing of their Black communities. The East London Council in particular seized the new Act as an opportunity to solve its two most pressing problems of the carrying of sticks and the brewing of beer, bringing in an amended regulation which covered both issues.

The Local Bodies Increased Powers Act of 1893 was nevertheless purely an interim measure to curb what the Town Council perceived as the worst "offenses" by the Black community. The councillors desired that the municipality gain even wider powers and they were aided in their efforts by the influence of the Afrikaner Bond within Parliament. The opportunity for such legislation presented itself in the East London Municipal Bill of 1895, drawn up to enable the municipality to embark on various programmes, like the establishment of an electrical supply scheme and the construction of a tramway system. Incorporated into the Bill, however, were three revolutionary racist clauses which as yet appeared nowhere else in the Colony: namely a law to forbid anyone other than Whites from using the side-walks of the town; authority to segregate the bathing areas; and power to discriminate against Asians.

Edward Brabant, East London's "junior" Member of Parliament, explained to the Select Committee that what East London required was a "clearer definition" of its powers over the non-White community generally. Segregated bathing, he said, was seen as absolutely necessary "in the interest of public decency and morality". The question of turning "non-Whites" off the side-walks, on the other hand, was one of simple expediency because "hundreds of natives" flocked into the town from their work and from the country on Saturday afternoons to frequent the canteens. The situation, he said, was such that "Respectable" Whites and their children would not walk along the streets "for drunken, rowdy natives".

The Bill met with little opposition and became an Act of Parliament in July 1895 and within two years the first of the new discriminatory regulations was passed. It was proclaimed that none but White teams would be allowed to play on the municipal Recreation Grounds while Africans were forbidden even to enter the premises. During the Council's deliberation, it was generally accepted that the question was not whether the Black people were behaving themselves but that everybody would feel "more comfortable" if strict segregation was applied.

Mayor William Jackson argued that "ladies" left the place when they found that "native girls planted themselves" alongside them "to watch the natives" playing cricket. The Council would give offence to a certain portion of the public, he claimed, if it allowed that to continue and he believed it was "only putting in the thin end of the wedge" if they allowed "Natives to challenge White people". There was a day coming, he warned, when the latter would have all they could do "to keep [the natives] in their place" as they were making progress in a direction "where they least ought to".

Further racist regulations soon followed. In December 1903 the side-walk bye-law was promulgated, casting the African population into the streets, a situation that would be maintained until the 1930s, despite continuous protests. In a sense, this was an almost complete imposition of street segregation because, although the regulation did not apply to the "exempted" Africans, it did apply to their wives and children. A family man therefore would have no option but to vacate the side-walks of the town. In 1909 segregated bathing was re-imposed, with all East London surf-spots except Eastern Beach reserved for Whites.

Mvalo's successful appeal in the "celebrated Stick case" won for him personal vindication which showed up the pretentious Town Council for what it was. The long-term consequence, however, was not what he could have perceived for he also unwittingly unleashed a new phase in South Africa's racial history. Not only did Black political organisations appear at East London in the form of the Native Vigilance Associations but racist regulations now became legal throughout the Cape Colony. A new age of legal segregation had therefore been introduced, with the East London Town Council showing the way.

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