Part 19 (1/2)

The High Court crisis arose out of the case of Brown v. The State, already referred to.{46} Brown had acted within his legal rights according to the terms of a proclamation. That proclamation had been illegally withdrawn, and the Government realizing that they would have to stand the consequences of their action in the courts of the country, introduced a law which was immediately pa.s.sed by the Volksraad, absolving them from all liability, and practically non-suiting all claimants. Mr. Kotze in his judgment declared this law to be improper and in conflict with the Const.i.tution, and gave judgment in favour of Brown, but left the amount of damages to be determined later after hearing further evidence.{47}

The first Volksraad was then in special session, and the President promptly introduced a law known as Law 1 of 1897, which empowered him to exact a.s.surances from the judges that they would respect all resolutions of the Volksraad as having the force of law and declare themselves not ent.i.tled to test the validity of a law by its agreement or conflict with the Const.i.tution; and it further empowered the President in the event of his not being satisfied with the character of the replies to summarily dismiss the judges. The judges protested in a body that they would not submit to such treatment. The High Court was adjourned and all legal business was stopped. Particularly emphatic was Mr. Justice Gregorowski. He stated that no honourable man could possibly sit upon the Transvaal Bench as long as Law 1 of 1897 remained upon the Statute Book. At this juncture Sir Henry de Villiers, Chief Justice of Cape Colony, came to Pretoria for the purpose of effecting a compromise and averting a crisis. The compromise was practically an armistice. The judges promised not to exercise the testing right pending the speedy introduction of a measure safeguarding the independence of the courts. Mr. Kruger on his side promised to refrain from enforcing the provisions of Law 1 of 1897, and undertook to introduce as speedily as possible the required new law.

The position in which the President found himself was undoubtedly one of some difficulty, but he chose a very bad way out of it. High-handed arbitrary methods cannot effect a permanent and satisfactory solution of a question of that character, but Mr. Kruger was unwilling to go to the root of the evil and to admit what Mr. Kotze's judgment had brought home with perhaps too sudden force, namely, that the laws and system of Government were in a condition of complete chaos. The sequel can be told in a few words. In February, 1898, Mr. Kotze considered that ample time had been allowed by him for the fulfilment of President Kruger's promise. Sir Henry de Villiers thought it proper to allow more time. The point of difference between Mr. Kotze and Sir Henry de Villiers was the interpretation to be placed upon the expression 'this session,' which had been used in the previous February when the President had said that if he did not introduce the proposed measures this session, the judges might consider that he had failed to keep his promise. Mr. Kotze contended that as the Raad was then in session it meant that session, and that in any case that session and another had pa.s.sed, and a third was in progress and there was still no sign of the promised measures. Sir Henry de Villiers stated that in his opinion the reasonable construction would be that Mr. Kruger meant the following ordinary session, and that only ordinary sessions could be considered (for in each year there are one special and one ordinary session), so that the President might be ent.i.tled to claim the whole of the year 1898 within which to fulfil his promise, but that this would be the extreme limit of forbearance, after which failure could only be regarded as a breach of faith. Sir Henry de Villiers in fact defended Mr. Kruger. Mr. Kotze, however, held to his opinion; he wrote to the President reminding him of the undertaking, charged him with failure to keep his promise and withdrew the pledge which he had given. The President promptly exercised his right under Law 1 of 1897, and dismissed Mr. Kotze, who had served the country as judge and chief justice for over twenty years. Whatever the merits of the particular case may be it appeared to be a shocking exhibition of arbitrary power to dismiss without compensation, pension, or provision of any sort, a man no longer young, whose services had been given for nearly a quarter of a century, who in the extreme dilemma of the Raid had stood by the President, and who, from some points of view, must be admitted to have served him 'not wisely but too well.'

Mr. Kotze was not at that time popular among the Uitlanders on account of his action in the matter of the Reformers, and especially because he had acted on behalf of the Government in securing the services of Mr. Gregorowski for the Reform trial; but the circ.u.mstances of his dismissal and the fact that he was known to be dependent upon his salary as judge, taken in conjunction with the courageous stand which he had made against the President's arbitrary will, enlisted public sympathy on his behalf, and a purse amounting in all to about 6,000 was presented to him as a mark of appreciation for his past services. But then followed the 'most unkindest cut of all.' Mr. Gregorowski, who had resigned a judges.h.i.+p in order to fill the post of State Attorney when Dr. Coster, in consequence of an insulting reference of the President's to his countrymen, relinquished it,-Mr. Gregorowski, who had been foremost to declare that no honourable man could possibly accept the position of judge while Law 1 of 1897 stood on the Statute Book, became Chief Justice vice Mr. Kotze dismissed. And by way of finally disposing of the subject, the President when questioned in the Raad as to the explanation of his apologist, denied that he had ever made any promise of any sort or description to Sir Henry de Villiers or anybody else!

Mr. Justice Ameshof, who with Mr. Kotze had made a stand against the President in this matter, was also obliged to relinquish his judges.h.i.+p. Thus it will be seen that at one swoop Mr. Kruger disposed of three reputable intermediaries whom he had used to great advantage at one time or another. 'Something for nothing,' for Mr. Kruger! Whether Mr. Kotze acted in haste or whether Sir Henry de Villiers' plea for more time was justified are questions which it is no longer necessary to discuss, not alone because Mr. Kruger denied ever having made the promise out of which the disagreement arose, but because even up to the present time no measure safeguarding the High Court has been introduced or foreshadowed in the legislature. And Law 1 of 1897, which according to Mr. Gregorowski made it impossible for any honourable man to sit upon the Bench, is still upon the Statute Book and Mr. Gregorowski sits as Chief Justice subject to its provisions.

No one disputes that the position of the High Court as determined by Law 1 of 1897 is a very unsatisfactory one, but the apologists for President Kruger frequently say that there has been no actual case of hards.h.i.+p, and that the Uitlanders are crying out before they are hurt. They maintain that it was a measure pa.s.sed under great provocation for a particular purpose, and that the power granted under it, although very undesirable in principle, has never been used. This is incorrect; the power has been used, and injustice has been suffered. Two cases of actual hards.h.i.+p are those of Brown v. Government, the case out of which the whole matter arose, and the case of the Pretoria Waterworks Company. But there are other cases too which have never been brought into court having been either compromised or abandoned because of the hopelessness of the position, for it is obvious that there would be great reluctance on the part of business men to make a fight merely for the purpose of showing that they suffered under a disability when the result of such a fight would inevitably be to antagonize the only tribunal to which they could appeal.

The case of the Pretoria Waterworks Company is rather a bad one. The Government in 1889 gave a contract for the water supply of Pretoria. It was a permission, but not an exclusive right, to supply the town from springs on Government ground. The President, finding that the contractor was not in a position to undertake the work, requested certain business houses to form a company to acquire this right and to supply the town with water. After inquiry into the local conditions and the probable costs, these people represented that unless they received the exclusive right they would be unable to undertake the work, as the cost of importing pipes and machinery transported from Natal by bullock waggon and the then expensive conditions of working would make the work so costly that at a later period, after the introduction of railways, it would be possible for compet.i.tors, such for instance as the projected Munic.i.p.ality of Pretoria, to establish a system of water supply at probably half the cost of the first one and thus compete to their disadvantage. For these reasons the contractor and his friends declined to proceed with the formation of the company. The President, however, was very desirous of having a good water supply, and after some months of negotiations the original contract was supplemented by a grant from the Executive Council, who then held plenary powers from the Volksraad, giving the proposed company the exclusive right. Immediately after the receipt of this grant the company was formed, the capital subscribed and the machinery and other material purchased. In 1898, after nine years of work, during which shareholders had received dividends averaging 2-2/3 per cent. per annum, some differences occurred between the Company and the consumers, and the latter combined and subscribed the necessary funds to take action in the High Court, the object being to challenge the exclusive right and to enable the town through its Munic.i.p.ality to provide its own supply. At the same time the Government at the instance of the townspeople opened negotiations with the Company with a view to expropriation in accordance with the terms stipulated in the original contract. While matters were in this position, however, certain members of the Volksraad prominently concerned in the action against the Company, introduced a measure in the Volksraad cancelling the second or exclusive grant made by the Government nine years before and recommending that the Government should either buy out the Waterworks Company upon suitable terms or should give the necessary facilities to the Town Council to introduce another system of supply. The application of the Company to be allowed to state its case was ignored, and after a short discussion the resolution was pa.s.sed and the measure became law. By the action of the Volksraad the Company was deprived of that princ.i.p.al a.s.set upon the security of which the capital had been subscribed, and the Government were rescued from an awkward position. The Government took no steps to defend their action in granting the right or to protest against the action of the Volksraad, and became, therefore, parties to an act of piracy. The Company were thus placed entirely at the mercy of the Government, for under the provisions of Law 1 of 1897, the Volksraad resolution put them out of court both as to upholding their t.i.tle and claiming damages. All doubts as to the Government's complicity in this action were removed when upon negotiations being opened for the expropriation of the Company the Government refused to follow the procedure prescribed in the contract on the ground that as the Company had now lost the exclusive right they must accept a less sum in compensation, otherwise the Government would authorise the rival Munic.i.p.al scheme. Under these circ.u.mstances the shareholders having no other power to appeal to adopted the common-sense course of taking what they could get. The result can only be expressed in figures. The shares, which had been purchased at over 40s. at the time of the Volksraad's action were worth less than 28s. in liquidation. The inquiry into the Raid by the Select Committee of the House of Commons, early in 1897, was productive of a result which is not always traced to its real cause. The greatest dissatisfaction was expressed in the Transvaal and among all the Boers in South Africa with one feature of the Westminster inquiry, viz., the investigation of the causes which made the Raid possible. Mr. Kruger and his friends had enjoyed such a run of luck and so much indulgence, and had been so successful in presenting their side of the case only, that it seemed to them improper that anyone should wish to inquire into all the circ.u.mstances. It would even appear from what followed that the President had convinced himself that there were no grievances, that he was an entirely innocent party deeply injured by the Reformers and the British Government, and that the Westminster inquiry had been authorized and conducted for the sole purpose of exposing him and justifying the Reform movement.

As the months dragged on and no improvement in the conditions of the Uitlanders took place, as indeed the complaints grew louder and the state of affairs grew worse, the President again began to hear the voices calling for reform. Timid whispers they were, perhaps, and far between, for the great bulk of the Uitlanders were in a morose and sullen mood. Having tried and failed on stronger lines they were incapable as yet of returning with any heart to the old fruitless and already rejected const.i.tutional methods. The suggestions for reform, consequently, came princ.i.p.ally from those who were on friendly terms with the Boer party and believed themselves to carry some weight. They have by this time learned that n.o.body carries weight with President Kruger unless he has power to back his suggestions. Many years before, the late Mr. W.Y. Campbell as spokesman of a deputation from Johannesburg, addressing President Kruger, stated in the course of his remarks that the people of Johannesburg 'protested' against a certain measure. The President jumped up in one of his characteristic moods and said: 'Protest! Protest!! what is the good of protesting? You have not got the guns! I have.' And Mr. Campbell, in reporting this in Johannesburg, remarked: 'That man is sensible; he knows the position. I claim to be sensible also, and I know he is right: you can take my name off any other deputations, for we'll get nothing by asking.'

It is stated, and the statement comes from one who claims to have been the father of the suggestion, that the President was induced to appoint a commission of inquiry by the argument that if, as he believed, the wretched state of affairs in Johannesburg was due not to the action of the Government but to the greed, machinations, and mismanagement of the capitalists, nothing could suit the latter worse than to be taken at their word and to have a commission appointed to take evidence on oath and to publicly inquire into the state of affairs; in fact to copy the Westminster inquiry. It is conceivable that the resolute refusal to investigate matters or to listen to complaints or explanations which the President had throughout maintained may have been the means of preserving a blissful faith in the strength of his own case and the rottenness of the Uitlanders'; at any rate, it seems to be an undoubted fact that the Industrial Commission of Inquiry, which was appointed by the Executive at the request of the President, was appointed in the confident belief that it would s.h.i.+ft the burden of responsibility from his shoulders to those of the capitalists. This construction of his motives may appear to be severe and perhaps even unfair, but it is entirely borne out by the manner in which he dealt with the report of the Industrial Commission, fighting against its acceptance, ignoring the recommendations of relief, and even imposing fresh burdens. There is, nevertheless, one thing to be deduced which is in a manner to Mr. Kruger's credit, and that is that he really must have believed that the case would-from his point of view-bear inquiring into.

The members of the Commission with power to vote were Messrs. Schalk W. Burger, Member of the Executive Council (Chairman); J.S. Smit, Government Railway Commissioner; Christiaan Joubert, Minister of Mines; Schmitz-Dumont, Acting State Mining Engineer; and J.F. de Beer, first special Judicial Commissioner, Johannesburg. Mr. Thos. Hugo, the General Manager of the National Bank, was appointed financial adviser, and certain advisory members were arbitrarily selected by the Government. The complete exclusion of all those who had had any direct or indirect a.s.sociation with the late Reform movement or with those in any way connected with it strengthened the conviction that the Government designed the Commission to be a whitewas.h.i.+ng one; but whatever the design may have been it would be doing an injustice both to the Government officials and to the advisory members to have it supposed that they were parties to such an idea. They were not; they did their work admirably, and no inquiry could have been conducted in a better spirit. This, however, was not foreseen, and it was with the greatest difficulty that the Uitlanders were induced to view the thing seriously and to realize that, no matter how it had occurred, this was a supreme opportunity for proving to the world the soundness of their case. The report and proceedings are published by the Wit.w.a.tersrand Chamber of Mines in a volume containing over 700 pages of printed matter and a number of diagrams. The whole const.i.tutes a d.a.m.ning indictment of the Government, as the following extracts from the report of the Commission testify:-

Your Commission are pleased to state that at present there exist all the indications of an honest administration, and the State, as well as the Mining Industry, must be congratulated upon the fact that most of the mines are controlled and directed by financial and practical men who devote their time, energy, and knowledge to the mining industry, and who have not only introduced the most up-to-date machinery and mining appliances, but also the greatest perfection of method and process known to science. But for these a good many of the mines now producing gold would not have reached that stage....

To avoid such a calamity (viz., the closing down of the mines) your Commission are of opinion that it is the duty of the Government to co-operate with the mining industry, and to devise means in order to make it possible for lower-grade mines to work at a profit, and generally to lighten the burdens of the mining industry. This and the development and equipment of the new mines are a few examples among others where it is desirable that the Government shall take an active part, especially when the fact is taken into consideration that up till now the mining industry must be held as the financial basis, support, and mainstay of the State.

The question, therefore, becomes one of national economy, and it is inc.u.mbent upon the Government, considering the rapid growth and progress of the country, to so alter its fiscal laws and systems of administration as to meet the requirements of its princ.i.p.al industry....

Your Commission entirely disapprove of concessions, through which the industrial prosperity of the country is hampered. Such might have been expedient in the past, but the country has now arrived at a state of development that will only admit of free compet.i.tion according to republican principles. This applies more especially to the gold industry, which has to face its own economical problems without being further burdened with concessions that are irksome and injurious to the industry and will always remain a source of irritation and dissatisfaction.

As to white labour:-

Your Commission are of opinion that wages are not excessive, regard being had to the high cost of living at the mines. In fact, they are only sufficient to satisfy daily wants, and, consequently, it cannot be expected that white labourers will establish their permanent abode in this Republic unless conditions are made by which their position will be ameliorated....

Your Commission are of opinion that as long as the cost of living cannot be considerably reduced it will be almost impossible to reduce the wages of white labourers, and they would strongly recommend that, as far as possible, necessaries of life should be imported free of duty and conveyed to the mines as cheaply as possible.

As to the sale of liquor:-

It has been proved to your Commission that the Liquor Law is not carried out properly, and that the mining industry has real grievances in connection therewith, owing to the illicit sale of strong drink to the natives at the mines, and they wish especially and strongly to insist that the stipulations of article 16 of the law shall be strictly enforced. The evidence given on this point proves that a miserable state of affairs exists, and a much stronger application of the law is required.

Following this there is a long criticism with recommendations in detail.

As to import duties:-

With reference to this matter, your Commission can only recommend that, if possible, foodstuffs ought to be entirely free from taxation, as at the present moment it is impossible to supply the population of the Republic from the products of local agriculture and consequently importation is absolutely necessary.

As to explosives:-

Before entering on this subject, we wish to put on record our disappointment with the evidence tendered on behalf of the South African Explosives Company, Ltd. We expected, and we think not unreasonably, that they would be able to give reliable information for our guidance respecting the cost of importation, as well as of local manufacture, of the princ.i.p.al explosives used for mining purposes; but, though persistently questioned on these points, few facts were elicited and we regret to say that they entirely failed to satisfy us in this important respect....

That the princ.i.p.al explosives used here can be purchased in Europe, and delivered here at a price far below the present cost to the mines, has been proved to us by the evidence of many witnesses competent to speak on the subject, and when we bear in mind that the excess charge of 40s. to 45s. per case does not benefit the State, but serves to enrich individuals for the most part resident in Europe, the injustice of such a tax on the staple industry becomes more apparent and demands immediate removal.

After showing that the dynamite monopolists make a profit of 47s. 6d. per case on No. 1 dynamite, and 55s. on blasting gelatine, over and above the price at which the mines could buy explosives if there were no monopoly or protection, the report goes on:-