From prohibited immigrants to citizens

Front matter

www.uctpress.co.za ‘While historical attention to the pre-apartheid era migration concentrates on Africans, especially miners, this book offers a compelling reminder of the interconnections between Asian and African mobility.’ – Audie Klotz, Professor of Political Science, Syracuse University Jonathan Klaaren blends legal and social history in this engaging account of early conceptions of South African citizenship. He argues that distinctively South African notions of citizenship and nationality come out of the period 1897 to 1937, through legislation and official practices employing the key concept of ‘prohibited immigrant’ and seeking to regulate the mobility of three population groups: African, Asian and European. Further, he makes the case that the regulation and administration of immigrants from the Indian sub-continent, in particular, provided the basis for the vision and eventual reality of a unified, although structurally unequal, South African population. This book fits into the growing field of Mobility Studies, which seeks to understand and document the migration of people both within and across national borders, while exploring the origins of those borders. In addition to nationality and citizenship, it touches on African pass laws, the origins of the Public Protector, the scheme importing Chinese labour to the gold mines, the development of internal bureaucratic legality, and India-South Africa intra-imperial relations. With its attention to the role of law in state-building and its understanding of the central place of implementation and administrative law in migration policy, this book offers a distinctive focus on the relationship between migration and citizenship. About the author: Jonathan Klaaren is a Professor at the University of the Witwatersrand appointed in the Faculty of Commerce, Law, and Management and in the Faculty of Humanities. He works in the School of Law and the Wits Institute for Social and Economic Research (WiSER). His research includes interdisciplinary work on law, culture and society. 14mm UCTPress-ProhibitedCitizens-FA.indd 1 10/10/17 3:02 PM

FROM PROHIBITED IMMIGRANTS TO CITIZENS The origins of citizenship and nationality in South Africa FPPTC_BOOK.indb 1 2017/10/10 10:50 AM

FROM PROHIBITED IMMIGRANTS TO CITIZENS The origins of citizenship and nationality in South Africa Jonathan Klaaren FPPTC_BOOK.indb 3 2017/10/10 10:50 AM

CHAPTER 1 South African citizenship in context FPPTC_BOOK.indb 1 2017/10/10 10:50 AM

This book is not about those interesting questions — though the conclusion, ‘South African citizenship and the way forward’, will bring a historical perspective to bear on the present. Instead, this book goes back more than 100 years. It is about the making of an earlier South African constitutional citizenship — a citizenship with a racially unequal and substantively warped nature — in a process that was centrally concerned with regulating the movement of people within a defined territory. This process was concluded six decades before the post-apartheid Constitution. So, the questions that lie at the heart of the chapters that follow are when and how the South African population itself became constituted as something more than individuals living in a certain space, even if this constituted population was not yet a people. Where did South Africa’s pre-constitutional citizenship — the one that apartheid ministers and bureaucrats from the mid to late twentieth century tried to warp and pervert but nonetheless around which they had to navigate — come from?

One of the tragedies of apartheid was its sustained and express attempt to make indigenous South African citizens foreigners in their own land. 3 The story of this book is the making of the citizenship of all South Africans in the first place. I argue that South African citizens were made from prohibited immigrants from 1897 to 1937 by the regulation of the mobility of three population groups — African, Asian and European — each faced with initially different and separate schemes of control over their mobility. Drawing on pre-existing provincial laws dating from as far back as 1897, the Immigrants Regulation Act 22 of 1913 declared certain categories of persons ‘prohibited immigrants’. (It was not until 1961, in section 2 of the Admission of Persons to the Union Regulation Act 60 of 1961 that Parliament substituted the term ‘prohibited persons’ for ‘prohibited immigrants’ throughout the South African statute book.) The story I tell starts in 1897 in pre-Union Natal with South Africa’s first comprehensive immigration law — a law controlling the movement of black Africans, Asians and Europeans within one conceptual framework. It ends in 1937 with Parliament entrenching 3 Budlender, 1985.

CHAPTER 1 South African citizenship in context a regime of control at South Africa’s borders, subject to the right of permanent residence for all South African citizens (then termed ‘Union nationals’). I also argue that the regulation and administration of the Asian population in the bureaucracy that is the direct predecessor of the current Department of Home Affairs provided the key platform for the conceptual elaboration and consolidation of the official vision of a unified although structurally unequal South African population. BUILDING A POPULATION How to tell an origins story? Especially in a study of the formation of citizenship, the identity and understanding of a political community cannot be assumed but must be explained. Focusing on the interaction between political elites and their publics, Rogers Smith explains citizenship laws by exploring what he terms ‘the politics of people-building’.4 According to Smith, the legal concept of citizenship assumes a collective political identity or a political peoplehood. To explain this political peoplehood, he proposes a theory of the politics of people-building, which identifies stories that inspire both trust and worth. Smith argues that ‘enduring successful accounts of peoplehood inspire senses of trust and worth among the members of a people by weaving together economic [stories], political power [stories], and constitutive stories tailored to persuade a critical mass of constituents.’ 5 Smith describes people-building using rigorous social science. However, although his approach has been appreciated, he and others have been criticised by those who argue that it is a short step from such an account to a redemptive and teleological narrative, in which successively inclusive people-building becomes tightly identified with a national redemptive myth. 6 In explicit contrast to Smith, recent work on the history of citizenship has argued strongly for the worth of nonredemptive and indeed explicitly negative accounts of citizenship. Such an approach, employed by scholars such as Kunal Parker, focuses on the historical construction of the distinction between the citizen and the 4 Smith, 2001. 5 Ibid. 6 Parker, 2015.

FPPTC_BOOK.indb 3 2017/10/10 10:50 AM immigrant, 7 arguing that it is an important corrective to the implicit redemptive narrative of inclusionary and people-building accounts of citizenship. 8 There is much to be said for such an avowedly neutral approach to the history of citizenship.

The school of African post-colonial studies emphasises the worth of examining the structures of domination critically and at historical depth. In his call for a re-examination and historicisation of European concepts such as ‘civil society’ (at least before their deployment in the African context), Achille Mbembe provides a view of boundaries and territoriality in Africa that highlights their historicity as well as their non-colonial aspects. 9 In a similar vein, Gary Wilder has given new texture to the idea of African citizenship by examining its relationship to imperial history. 10 For Wilder,11 [r]ather than debate whether colonial citizenship entailed actual political rights or whether it was an empty ideological abstraction, I suggest we understand it, to use Marxian language, as a real abstraction. In other words, colonial citizenship may not have ensured liberty and equality for subject populations, but as a juridico-political status and object of struggle it opened a space from which colonial citizens could make historically significant claims on liberty and equality.

Generative as it is, the post-colonial school does not have an adequate concept of a ‘population’. Deborah Posel provides a possible explanation for this lack in her work which describes the rise of the use of measurement data in modern South Africa. 12 Posel’s study, which explores some of the scientific discourse that underpins the transition to apartheid, also discusses the concept of ‘population’ within the rise of modernity. She argues that the production and storage of social 7 Ibid. 8 Smith, 1997. 9 Mbembé, 2001. 10 Wilder, 1999. 11 Ibid. 12 Posel, 2000.

CHAPTER 1 South African citizenship in context quanta (data) were increasingly routinised within the segregationist South African state, even though they were piecemeal and modest in comparison with later apartheid statistical work. Posel makes the significant argument that in South Africa the problematic of a ‘population’ did not succeed the problematic of a ‘people’ (as Foucault had argued was the case for Western society), but rather that these two problematics coexisted and intersected. My book fits within Posel’s argument, linking the process and politics of building a people with the process and politics of building a population. 13 I present the historical context of South African citizenship and its role in the construction of the South African population.

MIGRATION AND MOBILITY STUDIES By no means is this book an attempt to tell the history and founding myth of the South African nation. Instead, I present two arguments explaining the make-up of South African citizenship. First, I examine the regulation of people’s mobility as a key practice in the formation of the South African population. The African pass laws, which restricted the movement of black South Africans, have long been recognised as a tool of apartheid, but control over human mobility was equally, if not more, significant in the formation of South Africa and South African citizenship. While migration status may have been (and often was) a tool or marker of oppression, it was often at the same time a marker of inclusion. To have a status was to be visible. Even to be an extra-Union ‘native’ or an ‘Asiatic’ (terms that today would be taboo) was to be given certain rights of legality in terms of official policy and were labels positively desired and actively sought by some.

This book fits within an area of scholarship known as mobility studies. The growing body of work that problematises the meaning of South Africa has not as yet directly grappled with migration regulation. 14 This study thus builds on and extends earlier Southern African studies around questions of mobility. Among those regarding the African 13 Smith, 2001. 14 Dubow, 2006.

FPPTC_BOOK.indb 5 2017/10/10 10:50 AM population and prefiguring more contemporary work, 15 Patrick Harries’s study of migrant labourers in Mozambique and South Africa from 1860 to 1910 argues that mobility was a useful resource available to these travelling labourers initially allowing them to negotiate with mine bosses on the Witwatersrand. 16 Indian migrants to South Africa have been extensively studied, 17 perhaps most prominently by Uma Dhupelia- Mesthrie, who has explored the kinds of employment Indian immigrants found in Cape Town and the severe effects of the permit system and immigration laws on their free mobility. 18 Sally Peberdy, in her excellent study, looks at immigration controls that were applied to immigrants who claimed to be European, from 1910 to post-apartheid days. 19 While more celebrated for its theory than as a mobility study, Posel’s groundbreaking work, The making of apartheid , on the development of apartheid policy from 1948 to 1961, covers the empirical nature of control over the movement of people. Posel makes her broader argument regarding the uneven character of the apartheid state on the basis of material in this area of state policy. 20 Studying the policy and practice of influx control in the early phase of apartheid, Posel argues that apartheid was not in origin a single, simple, coherent plan — capitalist interests too were fundamental in shaping apartheid — but full of contradictions, and provided an autonomous role for the state. My study, falling broadly within the theoretical paradigm of Posel’s work, tackles the topic of the regulation of mobility as it unfolded in the decades prior to her work. Scholarly interest and engagement with globalisation generally and specifically with questions around the rise of citizenships and borders have recently surged. 21 An example is the recent work of Adam McKeown, who traces the global history of regulating identification and practices of border control. 22 Neither concept is inherent in sovereignty. 15 Vigneswaran and Quirk, 2015. 16 Barnes, 1997; Harries, 1994; Hindson, 1987. 17 Bhana and Brain, 1990. 18 Dhupelia-Mesthrie, 2009. 19 Peberdy, 2009. 20 Posel, 1991. 21 Dauvergne, 2005; Klotz, 2016; Torpey, 2000. 22 Huttenback, 1976; McKeown, 2008.

CHAPTER 1 South African citizenship in context Rather, they have, as McKeown shows, a particular history which stems from efforts by white settler nations, including Australia, Canada, South Africa and the United States, to regulate Asian migration. Indeed, McKeown’s story has a major episode with a storyline that begins in South Africa. The development of discretionary literacy tests — starting with an English-language immigration test implemented by Natal and termed the ‘Natal formula’ — was an early example of the practice of border control, and an important precursor to the elaboration and diffusion of border controls across the world from 1907 to 1939. 23 My second argument is that the regulation of the mobility of the Asian population in South Africa had at least as much influence on the development of the concept of citizenship as did the regulation of the European and African populations. While the force and effect of Asian migration on phenomena such as the rise of borders is increasingly acknowledged globally in the work of scholars such as McKeown, 24 its effect on South Africa in the reaction to the wave of migration from India in the 1880s, the struggle to enact the Immigrants Regulation Act of 1913 after Union, and the later acceptance by the Union of the permanent residence status of those of Indian origin staying in South Africa in the 1920s and 1930s, has not yet taken its rightful place in South African historiography. 25 There are at least two exceptions, however. Martin Chanock’s groundbreaking study of the legal culture of this period lays the foundation. He specifies the stratum of legal culture in South Africa at this time (discussed below) and points to the significant role played by Asians in the development of that culture. 26 As he pointed out, ‘because Asians could not, like Africans, be relegated to a different legal regime, but had to be discriminated against within and by the ordinary law, they posed many of the most difficult problems to South African lawyers.’ Without justifying the substance of such discrimination, he is pointing to the significance of its legal form. Audie Klotz uses an international 23 Op cit: 185–214. 24 Op cit. 25 Dhupelia-Mesthrie, 2009. 26 Chanock, 2001: 19.

FPPTC_BOOK.indb 7 2017/10/10 10:50 AM relations perspective, explaining that the roots of contemporary South African xenophobia lie in its economic nationalism from pre-Union times and the weakness of its liberal coalition of advocates for markets and for rights. She foregrounds the role of Asians and the ambiguities of empire.27 Apart from these exceptions, the forging of South African citizenship — at the least a baseline for national identity — through the regulation of the mobility of the Asian as well as the European and African populations has not been adequately appreciated. In the formative and largely bureaucratic process covered in this book, the legal, colonial and demographic position of the Asian population has proved particularly significant to the development of South African citizenship. THE DEVELOPMENT OF SOUTH AFRICA’S LEGAL CULTURE As a legal academic work, this book undertakes a further task, one that has not been attempted in the current historiography on the formation of South Africa. It traces and provides the legal history of all the mobilityrelated laws for three constituent South African populations: European, Indian and African. It documents South African immigration legal history from 1897 to 1937. Given today’s concerns around attention to mobility and imperial context, this theme of the book will be of significant value to other scholars as well as those wishing to understand the historical roots of South African immigration policy. The starting place for my enquiry is the laws that regulate movement in South Africa. Any work on legal history in South Africa should begin with Martin Chanock’s book, The making of South African legal culture 1902–1936: Fear, favour and prejudice . Chanock rightly states that the legal culture of South Africa established in the early decades of the 1900s was dominantly British, although it had, of course, its own particular inflection. His work on legal culture provides an envelope for this book’s account of the development of South African citizenship as part of South Africa’s legal culture. 28 Audie Klotz also helpfully defines ‘legal culture’ as ‘essentially a set of assumptions that intersect discourse and practice 27 Klotz, 2013. 28 Chanock, 2001.

CHAPTER 1 South African citizenship in context via administrative procedures’. 29 In the context of that legal culture, the object of the enquiry for this book — citizenship — is a legal cultural concept itself. In many ways, this concept is covered by the narrower and more doctrinal term ‘nationality’. Still, I use the term ‘citizenship’ in order to recognise the socio-legal and non-doctrinal elements of the development related here. While I examine this development of South African citizenship, I also provide a doctrinal legal history of South African immigration and nationality law itself. 30 Chanock noted the imperial context and origins of South African legal culture. The context of the British Empire and the comparative law of other British settler and non-settler colonies inheres in a great deal the development of the migration laws considered here. 31 To understand the development of South African citizenship, one must explore the comparative and transnational dimensions of legal culture and practices in the colonies of the British Empire. Indeed, there is a need to integrate historical scholarship on the metropole and the dominions. 32 In these terms, law in these colonies was a grand experiment. 33 This work can thus be seen as part of the move for a new South African colonial history. 34 It is commonly accepted that South Africans are and have been strictly divided into citizens and subjects throughout the nation’s history.35 This book is a partial correction to that post-independence perspective. I argue that by 1937 there was more than mere legal formalism in the designation of all lawfully resident members of the population as members of a South African population. 36 In this sense, this book provides an account of how the ‘South African population’ came into existence. In Ivor Chipkin’s use of the terms, this account is not about a ‘people as datum’ but about ‘people as political subject’. 37 29 Klotz, 2013: 53. 30 Salyer, 1995. 31 Kirkby and Coleborne, 2001: 230–274. 32 Gorman, 2006. 33 Foster, Berger and Buck, 2009. 34 Evans and Philips, 2001. 35 Mamdani, 1996. 36 Klotz, 2013: 28–29. 37 Chipkin, 2007: 2.

It is worth exploring Chipkin’s terminology in a bit more depth and using it to be clear regarding this book’s argument about what legal cultural concept is being formed from 1897 to 1937. The first term, ‘the people as datum’, refers to an empirical collection of individuals in a given geography; the second refers to a collectivity organised in pursuit of a political end. 38 The ‘given geography’ of the first case is what became by 1961, and remains today as, the Republic of South Africa. In 1897, there was a collection of individuals in that territory who could not be viewed as a collectivity or a political subject. Its disparity included the African, Asian, European, male, female, adult, child, Afrikaansspeaking, English-speaking, Tswana-speaking, Zulu-speaking, Xhosaspeaking, Gujarati-speaking, Khoi-speaking, Cape, Natal, Transvaal and Free State identities (to name a few). However, 40 years later, the individuals living in that given geography (some the same, just older, some new/born and some gone/died) can be seen as a collectivity — the South African population. The individuals living in that territory shared a common citizenship which was understood as being subject to the regulation of their mobility by the more or less joined-up components of the South African state. 39 The object of study here is thus beyond the ‘people as datum’ and is some essential form of the ‘people as political subject’.

Finally, it is worth noting that the character of the South African citizenship that I explore is not necessarily tied to or determined by the right to vote. Nor is this a history of South African citizenship in that term’s fullest sense. Other scholars have engaged in some of that work: there are studies of the existence of a public sphere on the mines and close examination of the extent of the identification of Africans with South Africa that existed at that time, 40 as well as the extent of the identification of the European population with the South African political community in the 1910s and the 1920s, the period directly prior to the formal establishment of South African citizenship (Union 38 Ibid. 39 Op cit: 2, 186. It is important to note that Chipkin uses the term ‘population’ in a sense different from mine. For him, population is a code for cultural characteristics: race, language, culture, etc. 40 Breckenridge, 1998.

CHAPTER 1 South African citizenship in context nationality) in 1927, 41 and, in a more literary mode, exploration of the cosmopolitan and complex identification of generations of Indians immigrants in South Africa. 42 These and other aspects of the rich and full social science concept of citizenship are of at least equal interest. More narrowly conceived, citizenship in South Africa has often been investigated through the lens of apartheid concerns and thus in its political aspect (eg the franchise or its denial). The best and most rigorous of this work acknowledges that citizenship does not necessarily entail the right to vote. 43 Globally, this has been demonstrated by, for instance, the non-voting status of the citizenship enjoyed by many American women in the 1800s and into the 1900s, as well as by children and others in today’s world. 44 While the right to vote often does construct and has significantly constructed citizenship in many parts of the world, these chapters focus on what can be understood as a different right, the freedom of movement and the influence of regulating mobility on the underlying legal cultural concept of South African citizenship. THE STRUCTURE OF THIS BOOK In the eight chapters that follow I structure my argument to track the development of South African citizenship: starting with the establishment of colonial borders; then by elaborating on national migration bureaucracies before and after Union, culminating in the establishment of the Commissioner for Immigration and Asiatic Affairs in 1927; and then ending with the Commissioner’s efforts to co-ordinate the implementation of migration laws and the administration of the mobility of the national population.

The books begins in 1897 with the first comprehensive immigration law enacted in South Africa: the Immigrants Restriction Act 1 of 1897 (Natal). It covers the years from 1897 to 1907, when the comprehensive immigration laws of the polities (the Colonies of the Cape and Natal, and the former Republics of the Transvaal and Orange Free State) that would 41 Lambert, 2000, 2005. 42 Hassim, 2002. 43 Loveland, 1999. 44 Cott, 1998.

FPPTC_BOOK.indb 11 2017/10/10 10:50 AM federate to form the Union of South Africa were constructed. Primarily providing a pre-1897 baseline for the chapters that follow, Chapter 2, ‘Early practices of regulating mobility’, surveys the sets of laws that specifically regulated Asian populations and established African pass controls. In order to provide context, Chapter 2 also details the short-lived population-specific regime that legalised the Chinese labour importation scheme from 1904 to 1907. Chapter 3, ‘The rise of borders’, outlines the development of comprehensive immigration laws in each of the four constituent territories from 1897 to 1907. Differing in significant respects of population coverage and method of enforcement, each of these colonial migration laws primarily responded to the same South African phenomenon — a new wave of migration from India beginning in the mid-1890s. Chapter 3 also traces the relationship of these laws to the nascent territorial laws of nationality, a story I pick up in Chapter 9. However, it begins in 1897 also with the first comprehensive immigration law enacted in South Africa: the Immigrants Restriction Act 1 of 1897 (Natal).

The next three chapters cover the years from 1907 to 1927 when the model of migration regulation developed in the Transvaal in respect of the Asian population was diffused and became dominant throughout the new Union including its application to the European and African populations in each of the four provinces. Chapter 4, ‘Union, the Act and the Registrar of Asiatics, 1907–1914’, examines the central place of the 1913 Immigration Regulation Act in the unification process. It also examines the development in the Transvaal of what came to be the joint office of the Registrar of Asiatics and the Principal Immigration Officer. How those Transvaal laws and structures spread and were themselves changed (particularly in Natal and the Cape) is the subject of Chapter 5, ‘Nationalisation of the immigration bureaucracy, 1914–1927’. At the same time, Chapters 4 and 5, examine the migration regulation of the European and Asian populations. The national regulation of the mobility of the African population, which began in the Department of Native Affairs but which was aligned with the Commissioner of Indian and Asiatic Affairs, is the topic of Chapter 6, ‘African mobility and bureaucracy, 1911–1927’. By 1927, the office of the Commissioner of Immigration and Asiatic Affairs (CIAA), the most direct organisational ancestor of the current Department of Home Affairs, had been FPPTC_BOOK.indb 12 2017/10/10 10:50 AM

CHAPTER 1 South African citizenship in context established. This national structure had formal legal competence over the mobility of the European, Asian and African populations. The book then moves on to the period directly following the establishment of the CIAA, 1927 to 1937. This demonstrates that it is in the administration and implementation of laws that they have their greatest impact. 45 Chapter 7, ‘The Commissioner’s population, 1927– 1937’, documents the paradoxical fashion in which migration regulation over Asians developed. On the one hand, the practice of interprovincial movement for persons who were termed ‘Asiatics’ became significantly restricted. On the other hand, Asians were increasingly treated as South African nationals. Simultaneously, as Chapter 8, ‘One official South Africa,’ details the lawful residence vision of citizenship inherent in the establishment of the Commissioner’s office was bureaucratically consolidated in a fusion of migration regulation of all three populations. By 1931, South Africa had an official vision of co-ordinated migration regulation for all its population. Just as the Great Depression hit South Africa, the regulation of African mobility began to be officially conceived in terms analogous to the regulation of Asians and Europeans. Chapter 9, ‘Enacting nationality, 1927–1937’, details how Parliament exercised its legislative competence in the fields of migration and nationality to confirm the lawful residence character of South African citizenship. 45 Chanock, 2001.

From the viewpoint of those living in 1897, it would be fair to say that the South Africa of 2016 or of 1996 and perhaps even that of 1961 or 1937 was nearly impossible to imagine. Yet the seed elements of the South African populations to come — the pre-Union mobility regimes discussed in this chapter — were already active and playing significant roles from this point. The year 1897 was also significant in that it was when South Africa’s first facially neutral (that is, not specific with regard to race in the words of the statute) immigration legislation was enacted in Natal. Most accounts of this law have focused on its introduction to South Africa of the literacy clause (discussed in Chapter 3). However, its formal application to all persons entering the Natal Colony is equally significant. 1 This chapter covers the mobility regimes present in 1897 and their operation during the events leading up to Union in 1910, as well as the fertile ground of pre-1897 developments from which these elements were able to draw support. While starting points are always to some extent arbitrary, it is important to go back some years before Union in order to understand South Africa’s citizenship history. 2 The pre-Union regimes controlling mobility in what would later become the Union of South Africa functioned in three primary ways: by specifically regulating Asian populations; by establishing African pass laws; and by legalising a Chinese labour importation scheme. Read with the additional set of laws establishing the borders of the four colonies that would soon become provinces of the Union, these regimes constituted the legal context and ground from which the entangled legal concepts of prohibited immigrants and South African citizens would grow. In this legal world before generally applicable immigration 1 Klotz, 2013: 70. 2 Op cit: 18.