a digest of the I FAGA N ! REPORT
prepared by ~eIu ~"
PRICE 1/6d A DIGEST OF THE
THE NATIVE LAWS (FAGAN) COM'MISSION
prepared by
HELEN SUZMAN
"One of the main objections to the Native laws Commission Report is that those who have criticised it most bitterly have not read it. That means· 99.9 per cent cf the European popu lation in South Africa." Mr. Justice H. A. Fagan Capetown, July 13th, 1948
PUBI.ISHED BY SOUTH AFRICAN INSTITUTE OF RACE RELATIONS DIGEST. OF THE FAGAN REPORT
THE Native Laws COlllmission under the chairmanship of of ~fr .•rustice H. A. :Fagan, R.C., was appointed by the Government in August, 1946. with the following terms of reference:- To enquire into and report upon- (a) The operation of the laws in force in the Union relating to Natives in or near urban areas, and in areas where Natives are congregated for industrial THIRD EDITION-J952. purposes other than mining; This book Was /irst published in 1948 as No. 1 0/ the Donaldson Blue (b) the operation of the Nat.ive Pass Laws and any laws Print series made possible by the generosity 0/ the Bantu Wel/are Trust requiring the production by Natives of documents of iden tifica tion; founded by Col. James Donaldson. (c) the employment in mines and other industries of lIligratory labour; its economic and social e:£fects upon the lives of the people concerned; and the future polie~; to be followed in regard thereto; and to draft such legislation as may be necessary to give effect to the recommendations of the Commission. The report of the Commission was submitted in February, 1948, and signed by Mr. Justice Fagan, Mr. A. S. 'Welsh, K.a:, Messrs. A. L. Barrett and E. E. von Maltitz who, with Mr. S. J. Parsons as secretary, formed the personnel of the COlIlmission. • Corresponding' to the terms of reference, the report is divitled into three sections which are all, however, closely interrelated. and shonltl be read and interpreted 011 this hasis .
• Mr. T .•J. Chester. who wa" originally apPointed to the Commission in place of Mr. H. P. Smit. died in ~?47. SECTION I. to set up Native Hevenue Accounts which were to collect alld utilise funds for the benefit of Natives; The Operation of the Laws in Force in the Union relating to to reserve trarling- rig-hts within the village for Native re."idellts or the Muni~ipality; Natives in or near Urban Areas, and in Areas where Natives to control tIle influx of Natives into tIle areas and remove are congregated for I ndustrial purposes other than Mining. " redundant" Natives i.e. those Natives whose labour is not required within the municipal The necessity for uniform legislation relating to Natives boundaries. in urban areas exercised the minds of authorities 10nO' before the pas!ling of the Natives (Urban Areas) Act of 1923, which Furthermore, the Government recommended that the is the foundation and text of existing legislation. Prior to setting up of a N at.ive Affairs Department in each urban area Union, various Commissions pondered on the conditions of would be desirable, and undertook to utilise its powers under urban Natives; while from the time of Union, authoritative the Gold Law in order to obtain suitable land for the munici Commissions such as the Assaults on Women Commission palities for the provision of accommodation. 1913, the T.E. Commission 1914', Native Affairs Commission 1920, and the Transvaal Local Government Commission 1922 The powers vested in the municipal authorities were wi.th a view to strengthening and strengthened and extended-particularl~ ' those relating to the ~dvall~~d 9t~ggestions unify~ control of the influx of Natives into the urban areas-by mg .I~glslatIon. In partIcular, the findings of the latter body, famIlIarly known as the Stallard Commission, established the numerous amendments to the 1923 Act, which was sub basic premise on which subsequent legislation was framed: sequently superseded by the Natives (Urhan Areas) Consoli -"Jt should be a recogni.'led principle of Government that rlation Act I)f 1945, as amended. N~tiyes-m~n! women an~ children-should only be permitted A review of the existing conditions in urhan areas makes wlthm mUIllClpal areas m so far and for so 10nO' as their it clear not only that, legi'slntion dmfted 25 years ago has presence is demanded by the wants of the white population been inadequate to meet the situation, hut also that the very and should depart therefrom when they cease to minister to premise on which such legislation was based is untenable the .need~ of the white man." (1) And where the presence of today. Nahv~s m. urban are~s was so required, the same principle of reSIdentIal segregatIon should be followed as was laid down for rural areas by the Native Land Act of 1913. DRIFT TO TOWNS. I~ ~ursuallce of. the policy enunciated by the Stallard Despite all the efforts of municipalities to utilise their CommISSIOn, the NatIves (Urban Areas) Act was passed in powers, they have been unable to control the urban drift of 1923, whereby the Government while retaininO' some measure the Natives, nor provide adequately for them once they of control over local authorities, legislativelyl'tentrenched the have arrived in the area. This is borne out by the over p~in~ipl~ that each municipality is responsible for Natives crowded conrlitions in the lllunir,ipal locations and the peri wlthm Its area. urban townships, and b~r the development of shanty towns on the perimeter of the large industrial towns. V ~r~ous duties and powers were handed over to municipal authOrItIes under the Act, the chief of which were:- 'rhe present situation has. in some measure. been accentuated by the great industrial expansion associated with To provide adequate housing accommodation for all the war, and the labour requirements of these industries Natives within their areas; attracting- Natives to the t.owns, coupled with a reduction in the huilding programme during the war years. to set up Native Advisory Boards within Native villages; Rut in the main South Africa has, in the past 25 years, witnessed the economic phenomenon associated with indus trialisation throughout tllc world-the movement of popula (1) Annextnro 5 Para. IT. (Fagan Report). tion from the rural to the urban areas. This movement is
2 3 by no means confined to the Native section of the populat~on, the Native pOPlllation of our urban areas consists not only but has occurred to a far greater extent among other sectlOns of Native migrants but also of a set tIed population. This is of the population. 'rhus between 19,21-46 the percentage of European population in the rural areas decreased from bOI'ne out hy the great increase ill the number of Native 44.22% to 27.54% i.e. by about two-fifths. In the same wOllien ill the urhan arens t.oday; thus in 1921 there ,,-ere period the percentage of Natives in rural areas decreased some 150,000 Xutive women in the urban areas; in 1936 some from 87.50% to 77.01 % or by about two-seventeenths; 0GO,000, and in 194G, G40,000-an indicat.ion of a considerable Asiatics from 69.10% to 29.72%; Coloured from 54.18% to settll'd population in the towns. 4l.85%. Although the rural to urban movement of the Native This fact is often overlooked in studying the great increase of Natives in t.he urban areas. Between 1921-36 population has been in excess of immediate requirements in the urban N atiye population increased by 94.48 %; between certain centres, it must be realised that it is an economic 1936-46 by 57.16%. This increase of Native urban population impossibility for the land t.o continUE> to carry an increasing is not due to the natural rate of increase which, contrary to population-it is necessary for nUlllbl'rs of Natives to transfer popular belief, is practically the same as that of the Eliropeall themselves to occupations other than farming. A similar population-18.32% in 10 years. It is the result of the drift process alleviated to a great extent the Poor 'White problem of population from three sources :- that was so acute two decades ago. from the Native Reserves; The important aspect is the absorptive capacity of the from the rural areas outside the Reseryes; industrial centres. There is no evidence of widespread from the Territories beyond the Union's borders. unemployment in the towns-a census takl'n of the squatt.er population on the borders of Johannesburg revealed that only The Natiyes have come to town and in many cases they H% of the adult male population were ;lOt employed in have come to stay. Economic forces have proved stronger than legislation-Natives have been pushed out of the rural the city. 'rhus the appearance of a shanty town is no indica areas because the Hpserves are over-pOIJulated, because con tion that its residents are "reuundant." Rather is it di tions on European farms are not sufficiently a ttracti ye to m~iden c e of the inability of the municipal authority to provide offset the seemingly higher wages and euucHt,jonal opportuni the necessary <.lccomlllodatioll for the workers in its area .lies in the towns, and because the territories outside the hence the undesirabJe cOll("i it.ions which have arisen. Union are ecollolllicall:v bac-kward; a \\(1 they have Leen pulled towards the urban areas because of the labour require The chief difficulty fa(;ing municipalities has always been ments of the expanding in(lustrial centres. Nor has it bee11 finance, for l'ven with sub-economic schemes aided by the possible to keep the Natives in town as migratory workers Government, thE> local authorities have always had to Lear only, for conditions in the rural areas have forced many a considerable share of the loss involved. ., hUllllreds of thousnlHls of Xativps t.() regard the towns as their permanent home. It would appear then that an entirely new approach to T()tl:l~' there an' ahout 11 million Xntiyes in urhan areas, the problem is called for-it can no longer be left to the as against Q million in 1921 and 1 million in 1936. Just lllunicipality to he responsible for the Nntivps within it.s what pl'rcentag·p of this figure is permanently settled in the area-in other words what is urgently necessary is "a IJroan areas is difficult to estimate-a bout 340,000 Natives shifting of the emphasis from the local to the central come from territories beyond t.he Union'f; borders, the great majority of whom are migTant workers employed in the mines authority, so that comprehensive, co-ordinated plans for and Othl'l· industr·il':>. ~Jall\ ' of the Natives today in urban the whole t.errain ean be devised and put into oper [lreas who come from the 'Union's Rl'serves are·' also tem a tion." (Z) porary absent.ees. But it must he accepted as a fact that Z. Para. 4. (Ibid! 4 5 PRINCIPLES OF POLICY. Figures and ot.her data "lead to t.he irresistible con elusion that it 'wmdtl be utterly impossible to put the Native Ha ving' assessetl the nature and ex ten t of the problem population which is already outside the ReseI'Ves, hack into it is necessary to deeide on p1'inc£ples of policy before the Reseryes, or even to keep the whole of the increase suidahle rpl1Ie(lie.'! can he RUg'ge8ted, Three possihle policies ther~ in future." (3) are eonsiderecl. A consideration of the practical application of total 1. Firstly, that of apartheid or total selJre,'lah'on which segregation from the other side of the question leads one 11'ollld inTo"N' a ('0111]Jlete f.en·itorial rli'Ut·.~ion bet.weetn to the same conclusion-it is an economic impossibility. For liJlI1'o{le:lTIs and NaLi'pes, just as South Africa's economy requires European initiative 2, S('.(:01/(1l,/, that of no racial discrimination either tn and skill, :it is equally dependent on the availability of Native lan' or in adm1:n'/strat£on, labour-a fact recognised by European employers throughout 3. Th1:rdly. that of accept1:n,'l the co-exist.ence of the country and borne out by their unwillingness to dispense with Native labour. "'\That ,rould happen if one of European and N a6'/le commnnit1:es side by si.de, b1~t these two pillars is knockecl down or even weakene Not on1v are there racial differences between European IllRofar as municipal Native villages are concerned, it is aud Natives to be tnkeu illto consideration, but also t.he fact rc(;onimended that the old Native Advisory Board System, that the Natives themselves are not a homogeneous group, which has proved a failure, be replaced by a N ati'.'e Village consisting as they do of raw tribal NativeR, Natives who noun., consisting of members elect.ed by the resHlents, or are in a t.l'ullsiliOlwl stage-partly urhlllised yet retaining> llomina ted by hlocklllen who themselves are elected .to. repre tTihal ties, alld Natives ,,,ho have settled permanently in the sell t residen ts 0f a particular ward or block cons!stmg of towns and are titemselv()s in all stages of development. ROllle 500 families. ThuR, for example, the queRtion of representation of The Roanl should subject t.o municipal control and super Natives on town p,ouneils JIlust be eonsi RECOMMENDATIONS. Amendments are proposed whi('h will do away with such anomalies. Two types of Nathoe townships or villages in urban areas nre Gonsidered:- Fl:rther amendments pxtenrl protection to the Native ]. 'rhose which fnll within a municipal area. leaseholder or landown8r if, for any reason, the municipality rlesires him t,o move, and provide that where the shortage 2. Those which fall Ollt~iele a municipal area. of ~,"ailable land makes pecuniary compensation unsatis fn ci dry, it may be necessary for the municipality "in l~eu 5. Pa... a. 31. CThi rl) of the amount payable as compensation or any portIon 6. Para. 31. (Jhid ) 9 thereof, to proyide the Native with other land corresponding, A Village Board shoulll be appointed either by the us fur us it is reasonably possible, in value, convenience of Uove\"fillleu t or by the l'esiden ts " when they are considerecl situation, and eonditions of tenure wit.h the land from which to ha"e reache(l suffie~ient maturity," (9) which shall be respon he is being removeu." (7) sible to the sub-uepartment, receive monies aelvanced by the sul)-departlllf'llt lor expenditure on housin o., health services It lllust be noled, ho,,'ever, that it is not possible to , transport facilities anel other allleuities, which will haTe lleell' compel unwilling municipal authorities to extend freehold nl~o~'1:teu by the 'freasury to the proposed Native Villages areas to N atiyes; to utilise beneficial building schemes such , Dn'ISlOn. as the 13loemfontein system; and to grant general dealers' licences to Natives within Native villages. 'Vhere existing local authorities are functionin oo effi eientl.y in areas outside municipal jurisdiction, it will ~ot be OUTSIDE MUNICI·PAL CONTROL. necessary for the Government sub-department to intervene. It is necessary to frame elastic legal provisions and to It is considered that a scheme such as that outlined encourage Native~ to seek opportunities for advancement ahoye would materi~ll.v relieve the probl~Ill by providing the in the second type of village, i.e. Native village outside sorely needeel fi.nancwl ~esourees, by ll1alol1g the expropriation municipal control. At the present time such villages are ?l neces~ary sl~es a Simpler matter, anel by ensl1ring that controlled by whatever local bodies the Provincial Adminis room IS provlC1eo for all who huye a reasonu.,ble claim to trat.ion creates. These organisations as a general rule have accommodation." (.10) At the ~allle time, it will be possible neither the funds nor the administrative machinery to cope to take more effectIve steps agalUst idle and disorderly persons with the sprawling townships and sqnatters camps that and criminal elements. hnY(~ sprung l1p around the large cell tres, owing to the over crowding that has taken place in municipal villages and the subsequent efforts of the municipalities to exclude or expel persons whom they are not able to accommodate, or whose employers cannot house them, or who are unemployed. The result is that there are large numbers of Natives W)lO legally have no place to reside, and for whom no authority will take responsibility. Thus deplorable condi tions have aris('n (lue "rather to deficiencies in our legis lation nll(l Ollr adlllinistr-ati"e machinery, than to wrong action or neglect of lluty on the part of any person, body or State department." (8) 'Vhat is necessary then, owing to the financial im plica ti OilS and administra ti ve difficulties iuYohed, is to rL'mo"e the responsibility for snch areas from the Provincial authorities, and to establish a Government suh-departmellt-possihly by expanding the Urban Areas Section or the Department of Native Affairs-which should be given the statutory p.9wers, requisite personnel and auequate funds to control and supervise Native villages out 1.· siue municipal areas und, if the necessity arises, to acquire land and set up such villages. r ~-- -~~~~~~- -~~------_.,._ ._. 7. Annex. 7. Para, 10 (Ibid) 9. Para. 37. (Ibid) 8. Para. 37 (Ibid) 10. Para. 38. (Ibid) 10 11 SECTION II. legislation would suffice, and secondly, in view of the fact that N utives are to be found " in all st.ages of development a.nd all stages of adaptation to European life and thought" (13) The Operation of the Native Pass Laws and any Laws legislators should be wary of utilising· t.he wiele term "Native" requiring the production by Natives of documents of and, where possible should distinguish between the different Identification. classes of Nati'·es in framing- legislation. 'fhe second <[uestion must also be answered in the A pass is defined as a document affirmative for tIle difficulties which at present accompany (a) ",,·hich is not carried by all races, hut only ll.)' the large-scale movement. of Natives woul(l be accentuated people of a particular r[lee and wllich either without control and regulation . . Moreover maintenance of the prineiple of residential segmg·ation, wh~re Natives have (b) is connected with restriction of the freedom of move settled in the .vicinity of European communities (rural and ment of the person eonccrned, or urban), necessItates a certain amount. of recrulation in the (c) must at all times he carried by the person concernell interests of both sedions (If the population. ,., all his body, since the 1aw lays tIle obligation on him of producing it on (leman(1 to the police aIHI certain other officials, and the mere failure to pro LABOUR BUREAUX. 11. Para. 39. (Ihid) 12. Para. 40. (Ibid) 13. Para. 41. (Ibid) 12 1~ ~======------~ - --- Insofar as the thll'u question is concerned, i.e. whether he abolished, except in (he case where llO suitable it is necessary to make the mere non-production of some accoml1lodation can be found for the latter. For document a punishable offence, it is proposed that, while it is cOllsidered that t.he present law in this no penalty should bo imposed simply for nOll-production, respect is instrulllental ill breaking up family life, since the retention of the pass system is st.ill required ill is based on the misconception that in its absence so Ill(' form, the Inw make special provision to ensure that the urban areas would be overrun by Native women, the regulations are being complied with: (hus the police and, while it is aimed at the HesE'rve Native, in must be empowered to call on any person to furnish proof practice it affects, ill the main, the so-called of compliance, and if such proof is not forthcoming, charge, detrihalised urban Native. keep in cllstody, and hring to trial any such person, the onus Secondly, that the provision of the Act which of proof to rest on the accused. empowers a mllllicipali.t:v to expel a Native from an area merely because he i!'l not in employment in It is hoped in this respect that identity cards will that area be abolished. reduce this necessity, and that the "well-kllown" Native will be at an advantage in that he will be able to give a The 11enefits of these amendments are to he extended proper account of himself and so satisfy the requirementH only to Natives I'" ho were horn in the tlrbalJ areas (!oncerned, under (he law. A Standing Committee of the Departments OJ' who are Union nationals. of Justice and of Native Affairs should be established to (3) Native Lahour Regulation Act No. 15 of 1911- consult with represen ta tive bodies in order to reconsider any hy which recruitment and discipline of mine new situation "hich might arise and to make proposals where Natives is governed, shotl1cl remain, subject to necessary. periodic review. As far as the respective documents that serve as passes (4) Other paRRes-some eonsolida( ion of regulations as at present are conc0fned, the following recommendations are reg-ar<1s cOlltrol of vagrancy, trespass and cattle made :- thieving is necessary for rural areas. For the rest., the provisions of t.he }fasters' and Servants' (l) The rpgi,drn tioll of St'ryiC'e Contrac('s under the Laws should he suffieient (0 haee deserters, eRpecially if the registration of contracts an<1 identity carc1 svstem are intro- ~I\"ativetl (l'rhan Arens) Consolidation Ad has so many duced into rural areas. .. . advantages that it. should remain, but should possibly cover only all sen-ice contracts in which the weekly Again, the identification s~'stem should eventually nullifv ' wage is not more than £4, and be extended to the use o! t.ax receipts as passel'. The night pass is no deterrent to .cl'lnunnl elements, but the EmoIJean Rection of the popu rural areas also. lahon is very oppoSE'd to slnckening- of control in this rE'spect; (2) lJaws relating to the entry of Nati"e~ into urban however, it, is llopen that once conclitiolls Hre more orderlv and seltlecl, ordinary common In IV s110111(1 provide sufficient areas can materially remain the same, provided that protection to the public without the neeessitv for curfew Natives who are excluded from IIlunieipalities because doculnentR. .. of lnck of room, and who have no other place to go, will be provided for by villages falling under the In every I'p.speet the great essential is to keep the law flexible enough to allow for whatever amendmen is may be Government suh-depart.ment mentione(l in Section 1 desirahle as regnrc1s t11e existing pass system. of the Heport. Two amendments to the Natives (Urban Areas) Consolidation Act are suggest.ed: Firstly, that tlle powers at present vested in munici palities t.o admit the worker himself int.o the urban area and to refuse to admit his wife and children 14 Fi and the periods of idleness involved in the change- SECTION III. oyer, btl t morc especially as the constant change in oceupation militates against the acquisition of The Employment in Mines and Other Industries of Migratory skill. Labour j its Economic and Soc1al Effect upon the Lives of the (7) The migratory system will huye no serious effects People concerned j and the Future Policy to be followed with if regard thereto. (a) llligrants number only a very small proportion 'l'he following' conclusions are reached after considera of the community involved; tion of th~ pros and cons submitted in memoranda to the (L) migrants are absent for a very short period. CoplInission :- In South Africa the extent of migratory labour and the (1) Economic pressure, stilllulatetl hy national policy, pel'iods of absence have assumed proportions which have has resulted in the lll;gratory labour system, which l't~;;ulte(l in bad soeial, mornl and economic conditions both has now hecome n tradition among' the tribal ill the lULg'l'ant communities of men without their families Natives. in the industrial areas, and in the rural areas where the fa lllilies are left behind. Married as well as unmarrieLl men make up the migra tory labour force, the married men leaving' their families in MUST AID STABILISATION. the Reserves because of the legal difficulties in shifting their wives and children, and because they do not wish to sever Summing' up these conclusions, it must be conceded that their tit'S wit,h tribnl life. " legal provisions or an administrative policy calculated t.o pp,rpetuate migratory labour and to put. obstacles in the way (2) The financial gain, which should result from the of stahilisa Lion of labour are wrong and have a detrimental money which the migrants bring back with them, e.fIed. The policy should be one for facilitating and is more than offset by the lowered productivity of encouraging stabi li~ ation . the Reserves due to the inefficient methods of agri culture carried on by the old and sick men, women On the other hand, however, migratory labour cannot and children who are left to till the soil. he prohibited by law or terminated by administrative action: the most that can be done is to t.ry to provide (3) Similarly, any benefit which might result from con facilities-e.g., by an energetic continuation of the housing tact with European customs and methods is out~ pr()gnmlllle--fol' workers to have their families with them \yeighed by the introduction of disease to the if they so desire; and to turn legislation aud administration Reserves, and hy the breakdown of family life and inlo a direction which will make the worker feel that in morals causeu hy long absence of the males. the town "here he works he can find a home, not merely (I temporary dormitory from which he may in the near future (4) The contention that the migratory system is bene be expelled." (14) ficial in that it has a " cushioning" effect on the difficult transition fl'Om tribal to European way of As rpgards the polic,v to be followed in the exploitation life, is h'llahle 0lt1~ ' if it is intended that. once the of new ~'old fields in the Free State, no specific recom- introductory period is over. the migrant shall settle 1llt'1lI1ation cnn be ma(ie other than the general principles down in the European environment. alrcady enunciated-i.e. ellcouragemen t offacili ties for a stable labour force, " iu :t 20 21 ·VI • . NUMBER OF NATIVES IN RURAL AREAS ~XCLUDINC NATIVE AREAS. 1936 2,492,650 1946 2,905,380 Increase 16.5 per cent. VII. DISTRIBUTION OF NATIVES AS BETWEEN NATI·VE AREAS AND REST OF PROVINCE, 1946. In Native Rest of ·"WHITE" CIVILIZATION Areas. % Province. % Total. by Dr. E. E. HARRIS Transvaal 610,000 19.61 2,500,743 80.39 3,110,743 Price 3/. Postage ld. Natal 940,000 55.17 763,979 44.83 1,703,979 O.F.S. 26,000 3.94 634,493 96.06 660,498 Cape Provo 1,530,000 65.66 800,377 34.34 2,330,377 • ~OM£ R£FL£(JION~ ON CIVILIZAT ION IN AfRICA 7,805,592 Prof. S. H. FRANKEL 11952 HOERNll MEMORIAL lECTURE) VIII. NATIVES IN NATIVE AREAS AND REST Price 2/6 Postage ld. OF UNION, 1946. Total. Native Areas. % Rest of Union. % 7,805,592 3,106,000 39.79 4,G99,592 60.21 • "go forward in faith" (THE lOGIC OF ECONOMIC INrEGRATION) :VIr. QUINTIN WHYTE Price 1/6 Postage ld. GET YOUR COPIES FROM THE SECRETARY. P.O. BOX 97, JOHANNESBURG. 22 IGNORANCE IS DANGEROU~ That this is so we all realise when faced with an accident, illness or the unexpected-faced with such problems we consult our doctors because we know they have studied the facts -THEY KNOW Strange that we who hesitate to pronounce judgment on these and other matters, becau3e We have no laeb, no knowledge, should feel con6dent to judge the complicated problems of multi-racial South Africa without the knowledge, without the FACTS IGNORANCE HAS SELDOM HAD A BETTER FIELID IN WHI,CH TO DO ITS DANGEROUS WORK TO BE SURE THAT YOU KNOW ALL THE FACTS. READ THE HANDBOOK O,N RACE RELATIONS in SOUTH AFRICA Edited by Dr. ELLEN HB.LMANN Published by The Oxford University Press for the ONLY 41/- SOUTH AFRICAN INSTITUTE OF RACE RELATIONS Postlle 2/44. P.O. BOX 97. JOHANNESBURG PRINTED BY TRAN.VAAL. PRINTING AHD PHOTO L.ITHOGRAPHE". (PTVJ L.'TD.