á DONALD MOLTENO "Dilizintaba — He-Who-Removes-Mountains" á á DONALD MOLTENO "Dilizintaba — He-Who-Removes-Mountains" By David Scher The South African Institute of Race Relations and The Donald Molteno Memorial Committee Johannesburg 1979 Published by: The S.A. Institute of Race Relations and The Donald Molteno Memorial Committee c/o P.O. Box 97, Johannesburg 2000 ISBN 0 86982 172 5 Cover design by: Jackie Bosman Printed by: Zenith Printers (Pty) Ltd., Queensbridge 60 Juta Street, Braamfontein, Johannesburg. Contents Page Introduction 1 Chapter I The Development of Native Policy to 1936. 5 Chapter II The Aims of Native Representation 11 Chapter III Liberalism, Democracy and Segregation 19 Chapter IV Critique of Native Policy (I) 25 Chapter V Critique of Native Policy (II) 35 Chapter VI The Parliamentary Record 47 Chapter VII The Constitutional Controversy 61 Chapter VIII The Liberal Party Interlude 71 Chapter IX The Molteno Report (I): A New Constitution 81 Chapter X The Molteno Report (II): Party Service 93 Chapter XI Public Service 107 Chapter XII Professor of Law 119 Chapter XIII Conclusion 125 References Bibliography á INTRODUCTION Donald Barkly Molteno was a distinguished South African with a long record of service to his fellow countrymen, a superb debater, an indefatigable fighter for civil liberties, and an implacable opponent of racial injustice. He was the descendant of a family with deep roots in South Africa and a long tradition of political involvement and public service. His grandfather, Sir John Charles Molteno, was the first Prime Minister of the Cape Colony under responsible government and held office from 1872 until 1878. An uncle, Sir James Tenant Molteno, became Speaker of the last Cape House and, thanks to the advocacy of John X. Merriman, was elected the first Speaker of the Union House of Assembly, a position he held from 1910 to 1918. Donald's father, William Wallace Dickson Molteno, was a successful sheep farmer at Nelspoort, near Beaufort West. De- scribed as "one of the most progressive farmers in the land", he died on 21 November 1931. Donald Molteno was born on 13 February 1908. In January 1918 he entered Diocesan College where he was to remain until 1926 when he successfully completed the Oxford and Cambridge Entrance Examination and the Schools Certificate Examination. Accompanied by his cousin, Mr Stewart Murray, Molteno left for England to study law at Pembroke College, Cambridge Univer- sity. On 24 June 1930 he graduated with honours in Law (Law Tripos), later being awarded the MA degree. On 27 November 1930, having passed the Bar Examinations of the Council of Legal Education of the Inns of Court, he was called to the English Bar at the Inner Temple. Having thereafter read for a year in Common Law Chambers in the Temple, and having returned to South Africa and passed the Examination in Statute Law of the Joint Committee for Professional Examinations (he was exempted from Roman-Dutch Law as the Cambridge Law Tripos included it), he was, on 28 April, 1932, admitted as an Advocate of the Supreme Court of South Africa by the Cape Provincial Division. There- after, he practised at the Cape Bar from 1932 until the beginning of 1964 when he was appointed Senior Lecturer at the Department of Roman-Dutch Law at the University of Cape Town. In 1967 he was appointed as the first incumbent of the Chair of Public Law at Cape Town and, at the time of his death in 1972, was Dean of the Faculty of Law. Throughout his career in the related fields of law and politics Donald Molteno was a living embodiment of those values that 1 comprise the Cape liberal tradition. First and foremost, it was a tradition that stood for limited government, or government under the rule of law. Secondly, it was non-racial in its approach, assert- ing that all persons of whatever race or colour were entitled to equality before the law and subject to qualifications which were not racially defined, were eligible for the franchise at the parlia- mentary and municipal levels. The Cape liberal tradition, which was one component of the compromise of Union in 1910, was under heavy attack by the time Molteno entered politics. Molteno, then a young advocate, came to the defence of the traditions in which he had been reared and became a strong critic of the new doctrine of segregation, which was being formulated in the late 1920's and early 1930's.1 In 1936 the Prime Minister, General J. B. M. Hertzog, introduced legislation which he presented as the solution to the "Native problem". At the core of this segregationist programme was the intention to abolish the common roll franchise rights which Cape African males had enjoyed, subject to certain property and in- come qualifications, since 1835. Despite the vigorous opposition of many distinguished liberals, the legislation was passed by a huge majority. In place of common roll representation Cape Africans were to receive the right to elect three white representatives to the House of Assembly. Donald Molteno decided to stand in the first of these elections to be held in June 1937 for the "Cape Western Electoral Circle". Molteno was victorious in the election and thus began a Parliamentary career which lasted from June 1937 to November 1948, whereupon he decided to leave Parliamentary politics and concentrate upon building up a legal practise at the Cape Bar. Molteno's Parliamentary career was marked by his incisive intellectual debating ability and speech-making. Consistently propagating a liberal viewpoint, he was deeply dedicated to the rule of law and the freedom of the individual against State en- croachment. But, perhaps, his most valuable work lay outside the House. Long queues of desperate and indigent Africans waited daily in the passages of his chambers at 4 Wale Street, seeking his advice and assistance. It was his sense of dedication to his con- stituents, his struggle to find some sort of solution to their every- day problems, that undermined his practice. Molteno joined the Liberal Party soon after its inception in 1953 and became a national vice chairman of the party before resign- ing in 1957. He later became a prominent member of the Progress- ive Party and headed the party's constitutional commission which was named after him. 2 Among the positions which Molteno held were president of the South African Institute of Race Relations, president of the Cape Flats Distress Association (CAFDA), speaker (president) of the Cape Town Debating Society, a member of the Council of the University of Cape Town, patron or adviser to the Legal Aid Bureau, the Institute of Citizenship, the Black Sash, the Civil Rights League and Spro-cas. To these and other organisations and individuals he gave his time and service, faithfully and gene- rously, until the very end of his life. "The Career of Donald B. Molteno" is based on a thesis submit- ted in fulfilment of the requirements for the MA degree in History at the University of Cape Town and subsequently revised for this publication. 3 á CHAPTER 1 THE DEVELOPMENT OF NATIVE POLICY TO 1936 t is important,in attemptingto evaluate the role of Donald Molteno as Native Representativeand his attitude towards Native Policy,tounderstandsomethingofthebroaddevelopment of that policy in the post-Unionperiod. Professor Hoernlé commencedthe first of his Phelps-Stokes Lecturesdeliveredto the Universityof CapeTownin May, 1939, withtheproposition:"Thefundamentalfactin the SouthAfrican sceneis the dominationof whiteoverblacks . Tomaintainthis dominationis the deepestaimofSouthAfricanPolicy. " Itwould certainlybe trueto say that, with respectto Native Policy after Union, the political cultureserved to demarcatea tacit under- standing among white politicalpartiesto continueand promote the maintenance of white supremacy.In a countrywhere the electoratewas becomingincreasingly white,2 political appealto the peoplewas directedon the basis of how theirracialinterests couldbebestservedin a polarisedsociety.Withsucholigarchical rule,the politicalsystem was characterised,as Colin Leys was to arguein the case ofSouthernRhodesia,by "abuilt-intendencyto illiberalism",whichmeantthatthedynamismofthesystemmilit- ated against the securingof rights to outgroups. "Capeliberalism,"accordingto W.F. Nkomo,"succumbedto the principlesofterritorialseparationandracialinequalitychar- acteristic of the other governments which preceded Union."3 Africans were not representedat the National Conventionnor werethey to have any directrepresentationin any ofthe success- ive parliamentsof the country.Nevertheless,a compromisehad been reached among the provinces at Union, which enabled blacks,includingAfricanswhohadthe votein theCape,toretain that right,which was entrenchedin the SouthAfricanAct andit couldbe changedonlyby a two-thirdsmajorityofboththe House of Assembly and the Senate sitting together. It mightbesaid that the Bothagovernmentadoptedthe"segre- gation" policy in a somewhat "back-handed"way. Though "segregation"was tiedto that governmentas its sloganised pol- icy vis-a-visAfricans,it was ideologicallynebulousand,in pract- ical terms,somewhat laissez-faire; thus the 1913 Natives Land Act was stated to be an interim measure designed to cope, on 5 something of an ad hoc basis, with the pressing problem of land alienation. Officially, therefore, this legislation, the pillar of Botha's segre- gatory policy, was "motivated to protect Africans from losing more territory in the Reserves." In fact, it created the basis for the Homeland policy of years later for, while all existing Reserves,