Here is one way to tell Andrew Gontshi's story: in 1880 a ‘useless and slovenly’ court clerk and interpreter quit his job before he could be fired.Footnote 1 Out of desperation, he began working as a law agent in the Transkeian Territories, a rural backwater in the eastern part of the Colony of the Cape of Good Hope. There he exploited his fellow Africans, violated court rules, and was repeatedly suspended from practice; his legal career only proved that Africans were unsuited for the legal profession. Many of the white officials in whose courtrooms Gontshi practiced narrated his career in these terms.
Here is another way to tell the story: in 1880, overcoming opposition from the colonial administration, a ‘pioneer’ became the ‘first [Xhosa] Law-Agent’. He ‘had many difficulties to face’, including his treatment by white officials; he ‘got little sympathy from the Europeans, and asked for none. He stood on his own legs and … defied his enemies white or black to trample him down’.Footnote 2 His legal career provides a ‘creditable example of what an independent [Xhosa] gentleman and scholar could make of those talents with which nature endowed him’. Thus was Gontshi's life narrated by Izwi Labantu, the influential isiXhosa newspaper, in his obituary.
Today, Gontshi's story is seldom told at all. He is remembered within his family and by a few older members of the Nqamakwe village where he made his home. Law agents of all races have been almost entirely written out of South African legal history. As legal representatives who lacked formal training, they represent a mild embarrassment to a profession that prefers to emphasize the development of a sophisticated commercial legal regime or the elaboration of new rights under the constitution.Footnote 3 Celebratory histories of black lawyering begin in 1908, when Alfred Mangena was called to the London bar.Footnote 4 After Mangena came Pixley ka Isaka Seme and George Montsioa; together the three men organized the first meeting of what would become the African National Congress (ANC).Footnote 5 They were followed by Anton Lembede, Nelson Mandela, and Oliver Tambo, three of most significant figures in the organization's history. Even Robert Sobukwe studied law while banned, qualifying as an attorney two years before his death.
What happens, then, to the story of black lawyering when it begins not with Alfred Mangena — or the pan-Africanist lawyer Henry Sylvester Williams, or even Mohandas Gandhi, who arrived in South Africa to practice law in 1893 — but with Andrew Gontshi? In some respects, the careers of Gontshi and the handful of other African law agents who practiced in the late nineteenth century provide a seamless prequel to this story of black lawyering, pushing it back in time and rooting it more firmly in South African soil. Yet Gontshi was not a cause lawyer, using law to advance or protect the rights of Africans. He earned his living through the unglamorous work of a rural courtroom, helping his clients sue for divorce, collect debts, or defend themselves against criminal charges. His career provides a quotidian archive of black politics, illuminating the meaning of law itself to the Cape's black elite. In court, Gontshi studied the workings of the colonial state, learning how to confront it when necessary but more often to work within it. Law's promises of justice might ring hollow, but mastering it could nonetheless grant power.
LAW AND LIBERATION
Tembeka Ngcukaitobi's influential recent history of South Africa's first black advocates and attorneys uses their stories to legitimize what he terms ‘black constitutionalism’ by tracing its roots to the liberation struggle.Footnote 6 Faced with the realities of military defeat, educated Africans took the battle into the courtroom where British law promised, although did not always deliver, justice and equality. Inspired in equal measure by precolonial African law and the unfulfilled possibilities of British legal liberalism, the lawyers of the early ANC envisioned ‘a system of government according to laws that are fair and informed by principles of justice’.Footnote 7 Ngcukaitobi traces this constitutionalist vision from the 1923 African Bill of Rights to the 1996 Constitution.
This narrative helps explain the faith in law's power — what legal scholars would call its ‘relative autonomy’ — that has profoundly shaped both the transition to democracy and the political culture that has developed since.Footnote 8 For most of the twentieth century law was, in Richard Abel's words, ‘an unpromising ally’ for black South Africans.Footnote 9 Policing focused on the enforcement of segregation, virtually ignoring most crimes committed against black South Africans, while the doctrine of parliamentary sovereignty sharply limited the legal strategies available to challenge discriminatory legislation.Footnote 10 Drawing on the work of Mahmood Mamdani, Martin Chanock describes South Africa's bifurcated legal system as one in which law constrained the state only in relation to the enfranchised minority.Footnote 11 As the twentieth century progressed, the administrative regime that governed black South Africans increasingly resembled Gregory Mann's description of the space of ‘non-law’ marked by the indigénat in French West Africa.Footnote 12 Excavating the centrality of legal thought to the intellectual tradition of the ANC helps explain how and why liberation activists used law, or eschewed it, at key moments in the struggle.
Beginning this story with Andrew Gontshi, however, gives it a new shape. Alfred Mangena resolved to study law while living a stone's throw from the Mthatha court where Gontshi and several other black law agents practiced. When an 1886 meeting of the Transkei Mutual Improvement Association called on Africans to ‘grow politically’ by using their education as ‘magistrates, judges, attorneys, and lawyers’, no African occupied those roles — but an advertisement for Gontshi's legal services appeared across from Imvo Zabantsundu's report on the meeting.Footnote 13 Black intellectuals turned to law because they knew what it could do, and they gleaned that knowledge from years of engagement with the colonial legal system in its most quotidian forms.
Starting with Gontshi forces us to follow the lead of recent scholarship on indigenous lawyers elsewhere in the British Empire and examine ‘lawyers qua lawyers’ rather than subsuming law into politics.Footnote 14 Doing so, however, clarifies our understanding of both. The archival basis for classic histories of colonial-era black politics is at once robust and narrow. The African-language press and colonial administration produced rich archives but, with a few exceptions, the private papers of even the most famous black politicians of the era have not survived.Footnote 15 Oral sources, meanwhile, have provided richer accounts of precolonial history and of the twentieth century than of the intervening years. Living members of Gontshi's family are eager to learn more about their distinguished relative but know little of his legal or political career.Footnote 16
For social and cultural historians, legal archives have provided an alternative entry point into the colonial-era African past. Court records have allowed the reconstruction of shifting labor relations, marriage practices, and the accompanying political struggles.Footnote 17 In the process, scholars have painstakingly reconstructed the colonial legal system itself, emphasizing the role of African intermediaries.Footnote 18 A largely separate body of work has investigated the use of law in anticolonial struggles, particularly in British Africa, where the colonial state's vaunted commitment to rule of law invited opposition to take legal forms.Footnote 19 As George Hamandishe Karekwavainane writes of Zimbabwe, ‘law was not simply a tool in the hands of the state, it was also central to the constitution of the state itself.’Footnote 20 Even the space of non-law (or, in Mamdani's words, ‘decentralized despotism’) was delimited by law. Africans — often led by black lawyers — fought, in courtrooms and other arenas, to narrow its ambit.Footnote 21
Building on the insights of such work, this essay uses quotidian legal archives to reconstruct the political sensibilities of the nineteenth-century Eastern Cape, a crucial site for the development of the African political tradition that shaped the ANC. Although his legal work was not overtly political, Gontshi forms part of the minor pantheon of this era of black politics. In 1887, at the age of 31, he founded the first formal political association in Nqamakwe, the Manyano ngeMvo Zabantsundu (Union for Native Opinion) and was among the nominees for a proposed delegation to England to protest the Voters Registration Act.Footnote 22 Other African law agents played even more prominent roles. Nathaniel Umhala sat on the executive committee of the Union of Native Vigilance Associations and organized African voters in King William's Town, while Daniel Dwanya traveled to Britain in 1909 as part of the delegation to protest the South Africa Act.Footnote 23 While their personal papers do not survive, their legal records do. The Western Cape archives contain transcripts from thousands of cases — both civil and criminal disputes, some governed by ‘native law and custom’ and others by Roman-Dutch law — argued by black law agents. These records reveal how educated African men engaged with the many faces of the colonial state over a period of decades.
This essay begins the work of telling those stories, and it begins with Andrew Gontshi. As the first black African law agent, Gontshi's career allows us to see how he and his colleagues claimed the standing to appear in court as legal professionals. More importantly, Gontshi's richly documented career epitomizes an understanding of the law that shaped black politics well beyond the courtrooms in which he practiced. Gontshi cultivated habits of procedural objection, fierce defenses of professional status, and appeals to higher authority. These tactics elucidate his political strategies outside the courtroom, as well as the meaning of law itself in Gontshi's world. Black law agents participated in the literate networks that connected elite ‘school people’ (Western-educated Africans) in the region. They attended Lovedale, Healdtown, and St. Marks; wrote letters to Isigidimi Samaxosa, Imvo Zabantusundu, and Izwi Labantu; socialized together at weddings and church socials; and talked politics in the Native Educational Association and Imbumba Yama Nyama (an Eastern Cape political group known in English as the South African Aborigines Association). For these men — and eventually, for Alfred Mangena — law was neither an ideal of equal justice nor an implacable arm of state coercion. Rather, as a synecdoche for colonialism itself, law illustrated how Africans might master colonial tools and use them to eke out limited but meaningful victories.
PROFESSIONALISM
Yet another story: in May of 1884, Andrew Gontshi borrowed a piece of stationary from his friend Tiyo Soga, an African clerk in the Kentani court (and relative of his missionary namesake). A European clerk, Mr. Cole, objected: ‘I'll be damned if I allow Government paper to be used by you.’ Gontshi ceded no ground, saying that ‘if he objected he should speak more civilly to me.’ He wrote that Cole then
shook his fist at me and told me he would kick me out of the office. I said I would like to see him do it. He then repeated the same language with violent gesticulations when I declared I would report him to the government.Footnote 24
Soga and another African court employee interceded to prevent a fight after Cole called out that ‘he'd be damned if he would be reported to the government by a nigger.’ Gontshi retorted sharply, ‘[W]ho are you?’ Cole answered, ‘I am a gentleman.’ Gontshi shot back, ‘[Y]ou are no gentleman, you are a low mean fellow, as no gentleman would use those words.’Footnote 25
This exchange epitomized Gontshi's vexed place in the colonial courtroom. His practice had begun with confrontation after the initial rejection of his application for enrollment and continued in the same vein. Less than a year later, Gontshi found himself in a dispute with the Nqamakwe magistrate over his fees.Footnote 26 Two years further on, in 1883, Gontshi wrote to the chief magistrate to complain about ‘the most outrageous treatment I have received from Mr. King on the Magisterial Bench at Nqamakwe’. According to his complaint, King had said to Gontshi, ‘You are acting the fool.’ Gontshi was ‘perfectly convinced that the words were a malicious attack on my Professional Capacity as an agent and that the words were used for the purpose of rendering me ridiculous and incompetent in the eyes of my clients’, and he noted his intent to lay charges against King.Footnote 27
Gontshi's professional status was hard-won. After leaving Lovedale, one of the elite missionary schools of the Eastern Cape, he worked as an interpreter for a firm of solicitors in King William's Town before joining the civil service in 1873 as an interpreter and assistant clerk in Dordrecht. He remained there for six years until a new resident magistrate took a rapid dislike to Gontshi, describing him as ‘inefficient’ and ‘utterly unfit for … employment’.Footnote 28 For his part, Gontshi considered the new magistrate a ‘very irritable person’, ‘found it impossible … to serve under him’, and resigned before he could be fired.Footnote 29 After failing to secure another permanent civil service position, Gontshi moved to Centane. He obtained a farm through connections to a local missionary but lacked the capital required to make it profitable.Footnote 30 Under increasing economic strain, Gontshi turned to his most valuable skills — translation and a working knowledge of the colonial legal system — and applied to enroll as a law agent in the Nqamakwe Magistrate's Court.Footnote 31
Gontshi's legal practice provided not only money but also independence. Alone among African legal intermediaries in the Cape, law agents did not work directly for the colonial state. The value of this independence grew in proportion to the limits on other forms of African employment. By the 1880s the two largest employers of Western-educated Africans, missionary churches and the colonial administration, both faced the question of whether qualified Africans would be allowed to rise through the professional hierarchy on equal terms as whites. In both cases, the answer would be no. Gontshi's own experience with the colonial civil service prefigured a general contraction of possibilities for African advancement, exemplified by Alan Soga's 1895 transfer to the Labor Department, which prevented him from becoming the first black magistrate.Footnote 32 Working as a law agent offered the rare possibility of self-employment in a position that carried respectability and professional status. Gontshi, who advocated for schemes to help other black entrepreneurs start their own businesses, treasured this independence.Footnote 33
Yet Gontshi's vociferous defense of his professional status also betrayed its fragility. Now largely forgotten, law agents once represented clients in courts across the territory that is now South Africa. From 1827 attorneys in the Cape of Good Hope were required to serve a five-year articled clerkship, but, due to the meagre supply of qualified attorneys, court regulations allowed law agents to represent clients in lower-level courts without any formal training.Footnote 34 Agents simply had to pay a fee and be ‘of full age, and of good fame and character’.Footnote 35 As the number of attorneys grew, however, restrictions on law agents increased. After 1877 the Transvaal required passage of a civil service exam, and from 1885 new agents could not enroll in Cape courts where two or more attorneys already practiced.Footnote 36 By 1896, Natal was phasing out the role entirely, and law agents were increasingly restricted to the Cape's Native Territories.Footnote 37 When Gontshi enrolled in 1880, then, agents already occupied a distinctly low-status branch of the legal profession.Footnote 38 The same limits on professionalization that allowed Africans to become law agents — enrollment required neither a university degree in law nor the completion of articles, requirements that Africans could not meet without traveling abroad — relegated them to second-class status. Agents in the Native Territories, including Gontshi and most other black agents, garnered particular disdain.Footnote 39
Professional status mattered to Eastern Cape politics. When the South African Native Affairs Commission asked Nathaniel Umhala how he qualified for the voters roll, he responded, ‘I am a certificated law agent.’ The qualifications for the franchise at the time included a basic literacy test and an income or property requirement. Profession alone did not qualify Africans to vote; Umhala qualified due to his income, most of which came from other sources.Footnote 40 Yet his testimony suggests a conceptual link between his profession and the franchise, an understanding that Gontshi shared. Unlike most of the black intelligentsia, Gontshi did not object to the 1887 Voter Registration Act, which extended the franchise to the Native Territories but effectively raised the property qualification. Although a vociferous opponent of racial discrimination, he had no qualms about limiting the franchise to ‘advanced’ people.Footnote 41
Yet Gontshi claimed his professional status — and indeed racial equality — not by virtue of his civilization but as a matter of law itself. This dynamic was apparent from the beginning of his career as an agent. In 1880, while still attempting to find a job within the colonial administration, Gontshi framed the issue of racial discrimination in flattering terms: while ‘ill advisers’ told him ‘that black people like myself cannot receive any redress or kindness from government’, Gontshi knew better: ‘the Colonial Secretary … has always been … impartial to all the subjects of government respective of color.’Footnote 42 Months later, when enrolling as an agent, Gontshi demanded racial equality in much blunter terms: ‘the act providing for enrollment of persons as Agents … is so clear & distinct, that I cannot imagine why I cannot at once be enrolled.’Footnote 43
As a law agent, Gontshi entered the colonial courtroom on the same formal terms as white agents. Not all white professionals accepted his equality, however, as Cole's description of his dispute with Gontshi illustrates. Cole had been sitting in the Kentane courtroom with two law agents and a police lieutenant, all white, when Gontshi entered and ‘took possession of the table without leave to perform his private work’ which ‘caused the gentlemen to leave this table’. Gontshi shared the space of the courtroom with this group of white men, but they felt his presence as an intrusion.
Cole also complained that Gontshi had ‘appropriated … Government stationary’. This was neither the first nor last time that a colonial employee objected to Gontshi's use of government paper. Five years later, J. T. O'Connor, magistrate at Nqamakwe from 1888 to 1895 and one of Gontshi's harshest critics, would charge Gontshi with malpractice for sending letters of demand on government stationary. To O'Connor, Gontshi's actions were ‘pernicious inasmuch as the native on receiving such demands might … come to the conclusion that the Magistrate's Court was in league or collusion with the agent’.Footnote 44 Gontshi gave a much simpler explanation: he had run out of paper while at court, and had once again borrowed a sheet with permission from another employee. Gontshi portrayed himself as an integral and equal fixture of the court: ‘I am so accustomed to this office as I have been so long connected with it that I have taken paper often never dreaming that it would be regarded as theft.’ Professional solidarity could trump racial distinctions, as when a group of black and white law agents joined together to request an increase in their fees.Footnote 45 Yet white officials recurrently interpreted Gontshi's assertion of professional privileges as insolence. In 1894 O'Connor suspended Gontshi once again, charging that the latter had ‘jumped up in court and loudly and angrily in a tone and manner from which every trace of respect for the Bench or myself had completely disappeared’. O'Connor objected less to Gontshi's specific claim in this instance than to ‘the exasperatingly insolent defiant manner and gross flagrant contempt manifested by Mr. Gontshi on that occasion.’Footnote 46
To O'Connor's chagrin, however, law agents could not legally be disenrolled without cause. In 1892 Gontshi had been convicted of a crime for giving a bottle of brandy to an African client. Gontshi, a registered voter, was exempt from the law that prohibited most Africans from purchasing liquor, but his client was not. In characteristic form, he appealed his conviction to the Eastern Districts Court, arguing successfully that the prohibition on ‘dispos[ing] of’ liquor did not apply to gifts.Footnote 47 Indeed, he was disenrolled at least three times, only to be readmitted in every instance, sometimes over the objections of the local magistrate. Working as a law agent allowed Gontshi to claim professional status, and at least a limited recognition of racial equality, through law itself.
PROCEDURALISM
Gontshi's procedural defense of his professional status epitomized his legal practice. Procedural knowledge was the stock in trade of all agents. They lodged exceptions ‘on the ground that Plaintiff's name is not mentioned in’ the summons, or that the it contained ‘no cause for action’, or that the plaintiff should have sued the defendant's father instead, or that the suit had been brought in the wrong district.Footnote 48 Gontshi stood out even among his fellow lawyers; his obituary described him as a ‘stickler for points of law and precedents’.Footnote 49 His mastery of law's technicalities exasperated colonial officials but gave him a measure of power amidst the pervasive, arbitrary, and violent exercise of colonial power.
Gontshi's role in a convoluted dispute over stolen cattle illustrates this dynamic.Footnote 50 By the time the defendants sought Gontshi out, the dispute had already gone several rounds. According to the plaintiff Maganinkomo the facts were thus: in 1879, as the war of Ngcayechibi was ending, 19 of his cattle had gone missing. In 1883, he traced three of them to Mdutumabana, who admitted to helping steal the cattle but claimed that another man, Ndiniso, had organized the theft. Maganinkomo brought a civil case against Mdutumbana in Kentane and laid criminal charges against Ndiniso in the district of Elliotdale. Each man was ordered to repay three head of cattle.Footnote 51 Dissatisfied, Maganinkomo returned to Nqamakwe and brought another civil case against Mdumbana and two other men, Ndhlati and Siwani. As evidence in this new case, Maganinkomo produced a copy of the transcript of Ndiniso's criminal trial, containing a confession by the three defendants to participating in the theft and receiving a total of nine head of cattle. Having already received three head in the earlier case, Maganinkomo sought another six.
At this point, the defendants sought Gontshi's help. Before the trial began, Gontshi laid his first procedural complaint: the new case reopened a previous action and was therefore invalid. The Kentane magistrate William Girdwood overruled him and the case began. Maganinkomo handed his copy of the criminal transcript to the court. Gontshi objected on the grounds that the court record ‘had not been attested as provided by Rule of Court no. 31, Ord. 40 of 1828’, which set out the law of criminal procedure in the Cape and required that witnesses sign criminal depositions. Girdwood reserved judgment on this new objection and the court began hearing testimony. In questioning led by Gontshi, Mdutumbana and Ndhlati asserted that they had not confessed, nor had they put their mark to any testimony at all. Girdwood acquitted them ‘on the ground that the records are invalid not being duly attested’.
The saga did not end there. Six weeks later a new copy of the transcript arrived at the Kentani magistrate's office, bearing a signed certification of authenticity from the Elliotdale magistrate, and Girdwood reopened the case.Footnote 52 Again Gontshi complained that the case had already been decided; again Girdwood ignored this objection. Reversing his previous decision, Girdwood declared the criminal transcript admissible and ordered the defendants to pay six head of cattle. Section 31 set out rules for preliminary examinations but not oral evidence, he explained, and the rules of criminal procedure did not apply to a civil case. Gontshi appealed to the chief magistrate, and won, on even more technical grounds. Gontshi argued that his original objection to the transcript had never been withdrawn and that the Kentani magistrate could not simply change his decision. Acting Chief Magistrate David Hook accepted this argument without ruling on the underlying evidence, or even on the question of whether the transcript should have been admissible.
None of Gontshi's defenses addressed the underlying question of whether the men he represented had actually stolen Mdutumbana's cattle or not. Nor did these procedural tactics force the court to live up to the idealized standards of British justice. According to Mdutambana, his criminal testimony had been given under duress and was possibly invented. He had been imprisoned for two days beforehand. At the trial, he testified that the Elliotdale magistrate had ‘called me a thief, and when I denied it, he left his seat and came within a yard of me and struck at me with his fist’. He had never admitted taking the cattle. These were entirely plausible claims in the nineteenth-century Eastern Cape, but neither Girdwood nor Hook particularly cared.
Rather, Gontshi's success turned on the technicalities of courtroom procedure. He knew that criminal depositions should be signed because, for his six years as an assistant clerk in Wodehouse, he had prepared them. Gontshi had far more courtroom experience than Girdwood, who had joined the civil service only a few years beforehand, having left his post as a Presbyterian minister in disgrace.Footnote 53 Gontshi not only knew proper courtroom procedure, but also understood that his superiors in the colonial administration cared about following its forms, if not its substance. In his complaints about Gontshi, the Wodehouse magistrate had singled out his sloppiness in copying official records.Footnote 54 The animosity between the two men was palpably personal, but poor copying was the sin that would damn a clerk in the eyes of the upper echelons of the civil service. Gontshi understood this feature of colonial rule and turned it to his advantage when deploying another of his signature tactics: appealing cases up the ladder of the colonial judiciary. His obituary traced his propensity to appeal back to his initial effort to enroll as a law agent. The Izwi editors wrote that Gontshi had ‘contested his claim for admission before the Supreme Court, which upheld his title to practice’ and speculated that ‘it is probable that this incident encouraged his habit of appealing that disconcerted the bench and led to hot passages of arms … and even to threats of suspension and other dire punishments.’ Although wrong on the facts — Gontshi never argued before the Supreme Court, and the dispute over his enrollment was resolved without litigation — the story is true in spirit. Gontshi's experiences taught him the value of appealing up the chain of command.
Gontshi's appeals exploited gaps between different levels of the colonial hierarchy. Sometimes these differences were personal. Gontshi had gotten along perfectly well with one Wodehouse magistrate for more than six years before falling out with his replacement. Well before William Girdwood labeled Gontshi a ‘very shady character’, he had quarreled bitterly with the Reverend Tiyo Soga, a family friend of Gontshi's.Footnote 55 By contrast, David Hook had previously developed a warm relationship with another strong-willed and legal-minded African, the Herschel interpreter John Parkies.Footnote 56 Two years after deciding Maganinkomo's case in favor of Gontshi's clients, Hook hired Jeremiah Zelile, a ‘native law agent … with a barrel full of books’, to defend himself against a charge of trespassing.Footnote 57
More fundamentally, however, Gontshi's appeals exposed a tension in British rule at the Cape between the liberalism of the empire's formal structures and the constant contravention of liberal norms in the daily work of governance. The colonial state in the Eastern Cape was pervasively violent, but violence alone does not preclude liberal rule.Footnote 58 The Cape's administration, however, could not afford the trademark technologies of liberal governmentality on any significant scale. The provision of schooling was left to missionaries; prisons were sites for hard labor, not social reform. More serious efforts were expended on vaccination campaigns and tax registers, but an attempt to create a registry of births and deaths foundered on lack of funds.Footnote 59 In the courtroom a conception of ‘rule of law’ remained integral to official understandings of the colonial project in the Eastern Cape, even as resource constraints undermined its implementation. Even the statutory regulations for the courts of the Native Territories acknowledged this tension. The ‘manner and form of proceeding in civil and criminal cases’ was to be, ‘as far as the circumstances of the country [would] admit’, the same as in the rest of the Cape.Footnote 60 But how far was that?
In the eyes of most local officials, not far at all. Transkeian magistrates governed much larger populations than their counterparts in the Cape proper, and with smaller staffs. Nqamakwe Magistrate W. C. Scully blamed the grueling workload for his medical collapse.Footnote 61 Even when healthy, however, magistrates typically lacked significant legal training. The 1885 Civil Service Act introduced a law examination but exempted current state employees, including most of the men who would serve as Transkeian magistrates into the 1890s. As of 1883, meanwhile, Thomas King had ‘on several occasions requested to be supplied with a complete set of Statute Law Books’ but had received none.Footnote 62 By contrast, in a May 1876 letter to Isigidimi, Gontshi explained Roman-Dutch law with citations to Grotius and Van der Linden. Having ‘occupied [his] leisure hours by reading the law’, the autodidact's legal knowledge outpaced most of his settler counterparts.Footnote 63 By contrast, colonial officials identified Africans as the most important constraint. William Fynn, a longtime colonial agent in the Transkei, believed that ‘in native cases the mode of procedure should be very simple … in order that they should understand it.’Footnote 64 If magistrates were ‘bound by the technicalities of our laws’, he wrote, crime would go unpunished and Africans would regard the law as ‘impotent’.
At the higher ranks of the legal hierarchy, procedure mattered more. Magistrates’ decisions were subject to review by the chief magistrate, who answered in turn to the office of the secretary of native affairs. For most of Gontshi's career, the under secretary of native affairs was James Rose Innes, a legal liberal who sought to bring the courts of the Native Territories into closer ‘compliance with the mode of procedure which govern[ed] the Colonial Magisterial Courts’ of the Cape proper.Footnote 65 Some cases could also be appealed to the Eastern Districts Court, whose erudite judges had minimal experience of the Native Territories and granted its magistrates no procedural leeway.Footnote 66 Law agents could not practice in the Eastern Districts Court, so Gontshi directed his clients’ appeals to the chief magistrate; recognizing the Eastern Districts Court's higher procedural standards, however, he hired an attorney to appeal his own criminal conviction there.Footnote 67 Meanwhile, sandwiched between overworked resident magistrates and the Cape Town-based administration, a series of chief magistrates balanced their own sense of the circumstances of the country with their mandate to bring rule of law to the native territories, with the knowledge that their own decisions were subject to review by more procedurally-minded superiors. Although they clashed with Gontshi in both legal and political fora, they also acknowledged his claims.
THE POLITICS OF PROCEDURE
Back on the bottom rungs of the legal hierarchy, magistrates such as J. T. O'Connor resented the ‘machinations’ of law agents and blamed them for high levels of litigation in the Native Territories.Footnote 68 O'Connor almost certainly had Gontshi himself in mind. A few months earlier, O'Connor had objected to Gontshi's use of precedents from the chief magistrate's court to argue his cases. O'Connor had no record of these decisions, which were ‘seldom recorded’ in writing. Law agents, however, had begun to ‘carefully note these rulings, and … openly quote them and insist that they have been laid down by the Chief Magistrate’.Footnote 69 In this instance the chief magistrate's memory conflicted with Gontshi's claim, and O'Connor intended to suspend him from practice once again.
In this dispute Gontshi inverted a familiar story of the development of African law. As Martin Chanock has argued, colonial administrators understood African legal systems by analogy to the British common law, with its emphasis on precedent. In this telling, there were superficial similarities between the common law use of precedent and precolonial legal systems in which past practice and previous decisions were invoked to make legal claims, but common law lacked the flexibility of precolonial African forms of adjudication.Footnote 70 In Nqamakwe, however, it was an African law agent who demanded the strict application of precedent in colonial courts that otherwise relied on oral transmission.
Such proceduralism shaped law's political meaning in Gontshi's world, as illustrated by a series of cases over school fees. By the 1880s, demand for African education in the Transkei outstripped the government's willingness to subsidize it. To raise money, headmen in some locations held public meetings at which location residents made ‘solemn promises’ to contribute a fixed amount towards building costs and teacher salaries.Footnote 71 Inevitably some residents did not pay up. In turn headmen and school teachers filed civil suits, claiming that such promises had ‘been regarded as Civil Contracts, binding upon those who made them’. Law agents, including Gontshi, pointed out that these agreements were not, in fact, legal contracts. While local magistrates were willing to bend the law, some judges who heard ‘appeals to higher courts … refused to sustain the Judgment of the Magistrates given in favor of the Schools on the grounds that such promises as aforesaid [were] not binding on the people’. Gontshi's successful defense in one case turned on precisely this argument. The court ‘was not satisfied that … an unconditional agreement existed between’ the parties.Footnote 72
Unlike most of Gontshi's legal work, lawsuits over school fees had overt political stakes. O'Connor characterized them as representing a ‘desire to relapse into barbarism’. Gontshi embraced education both personally and politically; although current residents of his home village in Nqamakwe recall few details of his life, they remember him as a champion of African schooling.Footnote 73 He would seem an unlikely advocate for men who did not want to pay these fees, but he represented them in court on more than one occasion. Indeed, a group of Nqamakwe headmen blamed the entire dispute on law agents, including Gontshi, who had ‘openly fostered and encouraged’ people to refuse to pay school fees.
Gontshi did not take on these cases to make a political point, but to pay the bills; in other cases he represented headmen and teachers seeking to enforce such payments.Footnote 74 He deployed contradictory legal arguments to advance the interest of each client, just as he did in disputes over seduction payments or inheritance.Footnote 75 Indeed for many in the Eastern Cape Gontshi and his fellow agents epitomized the gap between lawyerly techniques and meaningful justice that underpins the global popularity of lawyer jokes.Footnote 76 The Thembu chief Matanzima protested that
by the tricks of an agent, even a thief may get off, and it acts very unfairly, as many people are poor and cannot pay for them, while in cases between a rich man and a poor man, the poor trusts to honesty, while the rich person buys an agent and gains the day.Footnote 77
In 1903, Nathaniel Umhala, himself an enrolled agent, agreed that many Africans ‘say themselves’ that ‘it would be better … to appear without the assistance of lawyers’. However, he continued, ‘it is a thing that cannot be done, because … if one [side] rushes to a lawyer, the other has to do the same.’Footnote 78 Even as they pined for an idealized past when justice trumped procedure, Africans in the Eastern Cape recognized the latter's power and turned to law agents for help navigating colonial courts.
If proceduralism worked against justice in individual cases, however, it also offered a political strategy. Gontshi's emphasis on procedure reflected an underlying commitment neither to procedural justice, in the sense of valuing fairness of process for its own sake, nor to legal formalism, in the sense of believing that proper legal decision-making was a rule-bound process in which judges acted ‘without recourse to nonlegal considerations of morality or political philosophy’.Footnote 79 Gontshi was perfectly willing to borrow court stationary and otherwise cut corners for his own purposes. Colonial law did not promise justice or equality; at most it provided a set of tools that Africans might use to fight for those goals.
Legal proceduralism was not unique to the Eastern Cape; indeed, it is arguably a defining feature of the modern Anglo-American legal tradition. Yet, contra histories that contrast a minimalist ‘process-based form of justice’ to the promises of ‘more expansive … ideas of social justice’, Gontshi and other Eastern Cape law agents and political activists turned to procedure precisely because their vision of justice was not shared by those who held power in the colonial state.Footnote 80 They employed the tools of formalism to minimize the impact of a political order hostile to African normative and political claims, and Gontshi, at least, was remarkably successful at doing so.
Gontshi's political work likewise employed procedural tactics, appealing to higher echelons of the colonial administrators to enforce formal rules. His first recorded political program called for an organization that would ‘submit political grievances to the government’.Footnote 81 Soon after Gontshi founded the Manyano, Chief Magistrate Matthew Blyth described the organization as ‘nonsensical’ since ‘the magistrates exist[ed] for the people to bring their grievances.’Footnote 82 For Gontshi, going over the heads of magistrates — including the chief magistrate, if necessary — was the point. He responded to Blyth by doing exactly that, writing to Under Secretary of Native Affairs James Rose Innes for confirmation that the Manyano was on firm legal ground.Footnote 83 When Gontshi had complaints against the under secretary, he wrote to his parliamentary representative instead.Footnote 84
These tactics characterized the forms of political organization emerging more broadly from the 1880s onward. When African men gathered to protest colonial policies, their meetings frequently ended with resolutions to send a petition (or less frequently, a delegation) either to Cape Town or London to argue the case for African political rights. Petitions protesting the Voters Registration Act were signed by thousands; Isaac Wauchope, himself a clerk and interpreter in the Port Elizabeth magistrate's office, famously called on his readers to ‘fire with your pen’.Footnote 85 Later activists bemoaned these tactics as ineffective liberalism, evidence of a failure of imagination on the part of the bourgeois intellectuals who participated in these early black political organizations.Footnote 86 Yet for men like Andrew Gontshi, petitions followed the familiar forms of a legal appeal, and those sometimes worked.
Neither Gontshi nor the larger group of African law agents invented these political strategies. In 1869, while Gontshi was still at Lovedale, African residents of Herschel described themselves in a petition as ‘British subjects’ and asserted that they were ‘entitled to be ruled by British law’.Footnote 87 The archive produced by Gontshi's legal career makes it possible to reconstruct his relationship to law, but he was not unique. John Parkies, author of the Herschel petition, was an interpreter and ‘aspirant law agent’. In tastes and lifestyle, Parkies and Gontshi had little in common; Parkies disdained the trappings of respectable life that Gontshi held dear.Footnote 88 Both men, however, had spent enough time in colonial courtrooms to recognize the power of procedural argument. The 1869 petition did not assert generic rights, but rather a list of procedural violations. Residents had
been illegally subjected … to arbitrary rule, to the decisions without appeal, of courts without written evidence or records, and thus unamenable to revision; to an intangible, unwritten fickle code, loosely called Kafir law, local regulations etc, to an excessive jurisdiction (from which H[er] M[ajesty]'s subjects in general are protected) exceeding and overriding that of the highest courts in the Colony, and amounting to the summary confiscation of property (called ‘eating up’) … and to the summary infliction of the lash by the most petty public servants.Footnote 89
The fundamental complaint was the violence of the colonial state. The petitioners seem unlikely to have been satisfied if the local magistrate had only held a trial before inflicting the same whippings. Yet procedure provided a tactical opening, raising the possibility of ‘appeal’ and ‘revision’. The petition attempted to conjure those possibilities into being.
By the later nineteenth century, similar strategies circulated widely in the Eastern Cape. In 1884, Acting Chief Magistrate David Hook opened a broad investigation into the activities of Thomas King, the Nqamakwe magistrate.Footnote 90 King, he discovered, had sent a young convict to be apprenticed with King's own son. Further investigation revealed abysmal conditions in the Nqamakwe gaol, even by the low standards of the colonial Cape. Prisoners alleged that at least six men had been beaten to death, that they were flogged if they did not salute King and his clerk, and that King made them work on his personal farm.Footnote 91
The affair came to Hook's notice through a petition. One prisoner managed to escape from the gaol and set out for the chief magistrate's office to complain. On the road, he met ‘a civilized man who … offered to put my complaint in writing for me, because I said I could not speak well’.Footnote 92 The resulting petition echoed Gontshi's legal and political strategies. ‘We don't think that the [resident magistrate] has any authority to flog any one by a stick’, it argued. ‘I know I am a prisoner, and actually a servant of the Government, and ought to work for the Government, and I am not a private servant.’Footnote 93 The argument was legalistic, pointing out discrepancies between rules and practice.
The archive does not reveal whether these prisoners learned to criticize the colonial state in legal terms from Gontshi, although it is possible; Gontshi, the most active law agent in Nqamakwe, had his own complaints about King.Footnote 94 Rather, the statements of these illiterate and impoverished men demonstrate that procedural critiques demanding that the colonial state follow its own procedures circulated well beyond the circles of educated Lovedale graduates. Through the efforts of law agents to use procedural rules on behalf of their African clients, non-elite Africans encountered these tactics and sometimes saw them succeed.
CONCLUSION
In 1905, a year after Andrew Gontshi's death, the Supreme Court of the Transvaal handed down a landmark victory for African political activists. Tsewu v. Registrar of Deeds ruled that Johannesburg's city administration could not prevent Africans from registering land in their own names. While the case took place on the Witwatersrand, its major protagonists hailed from the Eastern Cape, and from Gontshi's world in particular. Like Gontshi, Edward Tsewu grew up in the Free Church of Scotland and arrived at Lovedale just as Gontshi departed. James Rose Innes, chief justice of the Transvaal and former attorney general of the Cape, was the son and namesake of the long-serving under secretary of native affairs, the man to whom Gontshi had written in 1887 to confirm the legality of his political work. Once a champion of nonracialism, the younger Rose Innes had moved towards segregationism by the early twentieth century, although he continued to defend the African franchise.
Jacob Dlamini's account of Tsewu calls attention to Edward Tsewu's liberalism, noting that the right to individual rather than collective property ownership was a quintessential liberal ideal, and to liberalism's roots in the mission-educated networks of the Eastern Cape.Footnote 95 Yet Gontshi's story gives a more ambivalent meaning to Eastern Cape liberalism and its relationship to law. Tsewu's remarkable victory turned not on a legal mandate for racial equality but on a much more technical issue. Rose Innes's opinion did not question whether the Transvaal government had the right to prohibit African property ownership, but merely whether it had followed the correct procedure to do so.
As Andrew Gontshi had done, Tsewu used procedural appeals to wring a technical victory from an unsympathetic state. Rose Innes himself collaborated with this tactic. He was liberal enough to sympathize with Tsewu, an educated African minister (albeit one who, by 1905, was leading an independent African church), but segregationist enough to hesitate before prohibiting racial discrimination outright — which would have torn apart the fragile détente between the British colonial administration and their Afrikaner subjects. A procedural verdict handed Tsewu victory without disrupting the basic framework of segregation and fit squarely within the formalist legal ethos of early twentieth-century judges and lawyers.Footnote 96 Other overtly political legal cases in the late nineteenth century adopted similar tactics. After the passage of the Voters Registration Act, political organizations across the Eastern Cape hired attorneys to protect Africans against removal from the voting rolls, and the Union of Native Vigilance Associations resolved to test the law in the Supreme Court.Footnote 97 The Mpondo chief Sigcau litigated all the way to the Privy Council on procedural grounds.Footnote 98
This was the history that shaped Pixley Seme, Alfred Mangena, George Montsioa, and the other men who gathered in 1912 to found the organization that would become the ANC. They had set off to study law in the wake of Tsewu but returned to a parliament preparing to undo that victory by passing the Native Lands Act. More broadly, as Keith Shear argues, successive national governments responded to judicial insistence on the rule of law by enhancing bureaucratic capacity to comply with procedural formalities, before moving away from legal liberalism decisively after the 1922 Rand Revolt.Footnote 99 Faced with these realities, the black lawyers of the ANC began to dream of a different kind of law. The resolutions adopted at their first meeting demanded ‘full and equal rights and privileges, subject only to the conditions … established by law and applicable to all citizens without distinction of class, color, or creed’.Footnote 100 They responded to the waning power of procedure in the post-Union era by imbuing law with something more like justice; yet law remained more strategy than philosophy. Black lawyers had turned to law because of its power to wring victories from a state which did not share their vision. As that possibility dimmed, Nelson Mandela and Oliver Tambo turned from courtroom practice to mass resistance and armed struggle. Even as they eschewed Andrew Gontshi's procedural tactics, however, their choices reflected his sense of law's possibilities and its limits.
