Keith Tankard Lecturer in Charge Rhodes University, (East London Branch) P.O Box 7426 5200 EAST LONDON South Africa Phone (w/Area Code): 0431-22539 Fax (w/Area Code): 0431-438307 E-mail (Internet, Janet, etc.):email@example.com
This paper is presented as part of the H-Urban Seminar on the History of Community Organizing and Community-Based Development in the 1995-1996 academic year. For additional information on the seminar, send e-mail to firstname.lastname@example.org with the message: GET COMM-ORG ANNOUNCE or send e-mail to Wendy Plotkin at U13972@uicvm.uic.edu. We appreciate Keith Tankard making this paper available to the seminar. (March 12, 1996)
Copyright (c) 1996 by Keith Tankard , all rights reserved. This work may be copied in whole or in part, with proper attribution, as long as the copying is not-for-profit "fair use" for research, commentary, study, or teaching. For other permission, please contact the authors.
[This paper explores two closely linked issues in South African urban history: the development of legal segregation during the 19th century and the reaction to it on the part both of the White and Black communities. Although the argument embraces the wider urban population of the Cape Colony, attention is focused on the eastern Cape port of East London where _de facto_ segregation was given the blessing of the law in the 1890s. This transition then spearheaded a movement in the town on the part of the segregated communities to start safeguarding their own interests by forming Vigilance Associations, later to become full-blown political parties.]
Since the 1970s, debate has focused on two related issues in South African history: the origins of racism and of legal segregation based on the principle of race. While the first debate has disputed whether or not racism existed at the early pre-industrial Cape, the second has generally argued that legal segregation is a product of the 20th century. Initially it was believed to be the fruit of the Apartheid era but later scholars have traced it back to the Act of Union (1910) which spawned the 1913 Native Land Act and the Native (Urban Areas) Act of 1923.
Bill Swanson, in his seminal paper on the `sanitation syndrome' and its effect on racial segregation, pushed the moment of racial segregation back another decade, at least as far as the Cape Colony was concerned. When the bubonic plague pandemic broke out in the Colony at the turn of the century, Swanson argues, the White populace believed that it was the Africans who harboured contagion and therefore demanded as wide a gulf as possible between themselves and the Black population. The result was the creation of the Ndabeni Location outside Cape Town and the forced removal of the city's African people to that township.  Researchers have applied Swanson's scenario to the eastern Cape towns of Port Elizabeth and King Williamstown with similar results.
More recently Chris Saunders has reinterpreted Swanson's conclusions. The concept of legal segregation was already forming in the minds of Capetonians during the latter half of the 1890s, he argues, and the bubonic plague pandemic merely galvanised government reaction. The idea of segregated locations did not, however, originate in Cape Town but was drawn from the example of the eastern Cape where towns like Port Elizabeth, Grahamstown and King Williamstown already had locations. The idea of legal segregation was therefore an import from the eastern Cape. 
An element of confusion, however, needs to be clarified. Although it is historically probable that the populace of Cape Town believed they were following the eastern Cape example, the latter's `location system' differed from the suburban evolution in the mother city simply because their class divide was more clearly defined. Towns such as Port Elizabeth, Grahamstown and King Williamstown grew up around a merchant and/or military cast which in all cases was White. The African people who migrated to the eastern Cape towns settled on the urban outskirts as a clearly defined new class which was markedly different from the White population not only in terms of economic means but also in skin colour and ethnicity.
The Cape's constitution, however, forbade the use of legal segregation -- i.e. the promulgation of laws which distinguished between people on the basis of skin colour rather than on class. Although it recognised two sets of law, one pertaining to `civilized' people and the other to the `uncivilized', it allowed anyone from the latter group to cross the divide provided he displayed the necessary means to make this possible. The yardstick for this was either economic means or educational attainment. An African person (always male) who achieved such status through either economic or educational means would be given the vote and would henceforth be exempted from all laws pertaining to the `uncivilized' group. In short, they would become equal to the Whites although, as Andre Odendaal points out, the Whites always remained `more equal' than the others.
This, however, led to _de facto_ segregation in what became known as urban `locations' in the eastern Cape and it was easy for the municipal councils and the White residents to believe that they had _de jure_ segregation. All the eastern Cape municipalities fell into that trap and produced regulations which were applicable only to their location populations and not to the Whites generally. It must be stressed, however, that all such regulations were illegal because they contravened the Cape's non-racial constitution. This fact is clearly shown in the `Umvalo Stick Case' which occurred at East London in 1892.
In August that year William Umvalo, a Xhosa and a visitor to the town, disembarked from a train at the Terminus Street station. He carried his belongings securely wrapped inside a blanket, his fighting-stick or `knobkerrie' protruding at one end. As he exited into Cambridge Street, he was arrested by the police for contravening municipal regulations, appeared before the Magistrate and was sentenced to a fine of stlg1 while forfeiting the offensive object, his stick.
Umvalo's case was nothing new. The stick regulation had been in existence at East London since 1883 and during the intervening nine years many infringements had been prosecuted. Most of the offenders would, like Umvalo, have been strangers to the town because the local Black township residents were well aware that Location Inspector Percy Potter, who regulated all aspects of African life in the town, never hesitated to apply the letter of what he believed was the law. What made Umvalo's prosecution important, however, was the fact that he was the first person to appeal against the verdict and his action set in motion a chain of events which would irrevocably alter the Black person's lot both at East London and in other towns of the eastern Cape.
When Umvalo appeared before the Magistrate, his defence argued the accused's right to bear a stick within the limits of the municipality on the grounds that the Cape Colony's constitution did not allow racial discrimination. The `stick regulation', it was contended, was racist because it pertained only to Black people. As such it was in contradiction to colonial law and was therefore illegal. Whites were allowed to carry similar sticks within municipal limits at all times and consequently the same rule had to be accepted for Black people.
The prosecution, on the other hand, argued that the regulation was important for the better administration of the town. Africans, they claimed, readily resorted to using their sticks when in a fight whereas Whites used only their fists. The Magistrate agreed and issued judgement that the bye-law was perfectly legal. He ruled that the 38th Section of Act 23 of 1880  provided the East London Municipality with power to frame regulations `generally as may seem mete for the good rule and government of the Municipality'. Regulation 232, he said, fitted that description. Umvalo's claim was therefore dismissed.
The Magistrate's verdict, however, was questionable. The lengthy 38th Section of Act 23 merely outlined when the East London Municipality had power to frame regulations but it did not confer authority to draw up bye-laws which were in contradiction to the Cape's constitution. Despite that, East London's Town Council had succeeded in passing several racist regulations which had gone unchallenged by both Parliament and the law-courts. The first, in 1878, forbade the presence of any `Kafir' within the limits of the municipality after sunset unless he or she had a pass signed by his or her employer. The year 1883 saw Regulation 232 promulgated which set the time limit for the curfew and further stipulated that no `native' would be allowed `at any time' to carry `any stick or sticks' within the limits of the municipality except `such as may be considered as light walking sticks'. The penalty would be confiscation of the offending object, together with a fine of stlg1. In 1888 the Council segregated the beaches, allowing the Black people to swim only at the Eastern Beach.
Why the Town Council had been successful in having such racist regulations accepted by the Governor when they were clearly in contradiction to the Colony's charter is a moot point but East London was certainly no different from the other towns in the eastern Cape. Where East London would differ, however, would be in its interpretation of the purpose of its locations. That difference was due to the port's unique history.
East London had been founded as a port for British Kaffraria when that territory was established by the High Commissioner, Sir Harry Smith, in December 1847. Due to a fear of uncontrolled smuggling, however, Smith almost immediately attached the port to the Cape Colony where colonial customs officials could keep an eagle eye on proceedings. The town would remain part of the Cape until 1859. In theory, therefore, the Black community at the port should also have fallen under colonial law. In practice, however, they remained under British Kaffrarian jurisdiction and so a distinction came into being at East London between Whites who were colonial citizens and Blacks who were British Kaffrarian subjects. When `locations' were established in British Kaffraria as an aftermath of the Cattle Killing frenzy of 1856-7, the Xhosa village at East London became regarded as such and from then on British Kaffrarian location law was enforced.
A further complication was the fact that the `location' at East London came to be seen purely as a source of labour for the town and harbour. Indeed, residential permits were granted only upon production of an employment certificate. As a result the Black community evolved almost entirely as a labouring class, unlike those at the other towns of the eastern Cape where education made rapid inroads to produce large numbers of `exempted' Africans for whom location law no longer applied.
When the town became a municipality in 1873, the Town Council inherited the system which had operated during the previous 25 years. The position of the African residents was then further compounded in 1876 when the Cape Government promulgated the draconian Locations Act and gave those municipalities with locations the right to apply the Act if they deemed fit.  East London did so in 1878 and thereupon produced the first of its racist regulations, the bye-law introducing a curfew. Then followed the stick regulation of 1883 and beach segregation in 1888. No mention was made, however, to the fact that these regulations were to be administered in terms of the Location Act, which would automatically have spared `exempted natives' from the provisions.
During the years from 1878 to 1892 there was no challenge to these municipal `location' regulations, despite the fact that they were being applied to all Africans regardless of class. The lack of an educated Black community at the port was probably a vital reason for this. East London also had no African political organisation to act as watch-dog over vested interests and so it was up to individuals to check the legality of municipal bye-laws. Moreover, because the regulations had been proclaimed by the Governor himself, they therefore carried the tacit approval of Parliament which was accepted as the ultimate guardian of Black interests.
A complicating factor was that the African community was supervised by Location Inspector Potter who directed the municipal police in these matters. Potter was a man not to be trifled with and one who applied the regulations with a heavy hand, without reference to the Town Council. At the same time, he sometimes found the regulations confusing and made mistakes with their implementation which ultimately led to his dismissal in 1899. It is doubtful, therefore, whether he would have been skilled enough to distinguish between the application of one Act and another, especially when the Town Council apparently failed to do so. Moreover, it is clear that even the Magistrates saw the location regulations as emanating from the East London Municipal Act of 1880 instead of from the Location Act of 1876.
East London took the Location Acts one step further, which made the town unique in the eastern Cape. Because the Town Council saw the African population as existing solely to supply labour to the White community, it never hesitated to move the locations whenever this was deemed advantageous. The result was a forced removal of the Black people no less than six times between the years 1874 and 1892. While other towns in the Cape Colony would use the outbreak of bubonic plague in 1901 to galvanise them into establishing new locations far outside the urban boundaries, East London had already done so by 1892 and was therefore totally unmoved by the plague pandemic.
When William Umvalo appealed against the Magistrate's `stick' decision in 1892, East London's position _vis-a-vis_ the Black community was examined in the wider context of colonial law for the first time. Umvalo's defence team argued before judges of the Eastern District's Court that the stick regulation was an attempt at `class legislation' because only Blacks were forbidden to carry sticks. The Solicitor-General pointed out that it was possible under such circumstances to prevent Irishmen from carrying shillelaghs within the municipality.
Umvalo won the appeal. In his judgement, Mr Justice Jones stated that authority to make class legislation was the sole prerogative of Parliament and until the power `to distinguish between inhabitants of one class or colour and of another' had been specifically conferred upon the municipality, the East London Town Council could not frame such discriminatory regulations.
The verdict of the Eastern Districts Court had an immediate impact on East London's African community, many of whom now began a deliberate campaign of defying municipal authority. Their idea, the editor of the East London's _Dispatch_ newspaper wrote, was that the superior authority had upset `the pretensions of the local powers' and that the Mayor and Town Council could be more or less ignored and their regulations `treated as waste paper'. By October 1892 Superintendent Potter reported that `knobkerries' were `rampant' in the location and that the `good order and quiet' was fast becoming a thing of the past.
So perturbed was the Council at its seeming loss of face that it decided to appeal to the Supreme Court. The case was therefore fought for a third time but the verdict in November 1892 again upheld Umvalo's claim. The court decided moreover that the bye-law was `unreasonable'. Africans could have their sticks confiscated merely `by having them', the judge stated, even if they were peacefully disposed, as in Umvalo's case. The regulation made no mention of sticks being confiscated because they were dangerous weapons and, as it stood, a Black person might have his stick in a bag or wrapped up in a blanket and still have it confiscated.
The `celebrated Stick case', as Mayor David Rees called it, was a landmark judgement and focused the Council's attention on the legality of its other racist regulations. The twin judgements had serious implications not only for East London but for the other municipalities in the eastern Cape as well. A doubt now existed as to the legality of regulations which were specifically aimed at the Black community but not directly provided for by statute. It was not enough that a bye-law appeared reasonable, Mayor Rees explained to his Council. It had also to be reasonable `within the meaning of the Statute'. The `Stick Case' had, he said, `emphasized in a marked degree' that, if further regulations were to be framed for the control of the locations, it was first necessary to be in possession of an Act of Parliament. It was therefore essential, he concluded, that `no time be lost' to secure additional powers to `deal with the natives'.
Two problems particularly troubled the East London municipality, namely the `knobkerrie' issue and the brewing of traditional beer within the locations. The latter was a headache which had dogged the Council in its early years but was eventually brought under control through a bye-law passed in August 1884 giving the Location Inspector power to destroy the beer whenever he came across it.  The regulation appeared to achieve its aim but towards the end of 1892 drunkenness was again on the increase, largely because judgement in the `Stick Case' caused the municipal regulation on traditional beer to fall into the same category of racist legislation. For a while, therefore, municipal authority weakened and 1893 became a `stormy' year, with `disorderly conduct' and faction fights a common occurrence. Stone throwing had also become a regular past-time, particularly in the direction of the Location Inspector's house.
The Council therefore turned its immediate attention to the eradication of what it called the two `nuisances' through the submission of a Private Bill to Parliament. By the time the draft Bill had been prepared, however, it was too late for it to pass during that session and John Gordon Sprigg, East London's `senior' Member of Parliament, recommended instead that a `public measure' be passed to ease the difficulties. Since it needed the support of the wider community, the Port Elizabeth and King Williamstown municipalities were `advised and requested' to urge the introduction of the Bill and to offer support. The Bill became an Act of Parliament in 1893  and gave considerably increased powers to Borough Councils to enable them to pass various additional regulations for the governing of their Black communities. The East London Council in particular seized the new Act as an opportunity to solve its two most pressing problems of the carrying of sticks and the brewing of beer, bringing in an amended regulation which covered both issues.  Legal segregation had become a reality.
The Act of 1893 was purely an interim measure to curb what the Town Council saw as the worst offenses by the Black community. The municipality, however, wanted even wider powers and was aided in its efforts by the dominance of the Afrikaner Bond within Parliament. The East London Municipal Bill of 1895 was the outcome, drawn up to enable the municipality to embark on various programmes like an electrical power scheme and the construction of a tramway system. Incorporated into the Bill, however, were three revolutionary racist clauses which as yet appeared nowhere else in the Colony, namely a law to forbid anyone other than Whites from using the side-walks of the town, authority to segregate the bathing areas and power to discriminate against Asians.
Edward Brabant, East London's `junior' Member of Parliament, explained to the Select Committee that what East London required was a `clearer definition' of its powers over the non-White community generally. Segregated bathing, he said, was seen as absolutely necessary `in the interest of public decency and morality'. The question of turning `non- Whites' off the pavements, on the other hand, was one of simple expediency because `hundreds of natives' flocked into the town from their work and from the country on Saturday afternoons to frequent the canteens. The situation was such that `Respectable' Whites and their children would not walk along the streets `for drunken, rowdy natives'. The Bill met with little opposition in Parliament, except to exclude `exempted natives' from the measure, and it became an Act of Parliament in July 1895.
The East London Council was quite happy to accept the exception clause because it made very little difference in reality. The `exempted natives' were all male but their wives and children were not similarly exempt. Any `exempted' male who wished to accompany his wife and children had therefore to vacate the sidewalks and walk in the street. Furthermore, the onus was on the `exempted' person to prove he was a voter.
Within two years the first discriminatory regulation was passed. In November 1897 it was proclaimed that none but White teams would be allowed to play on the municipal Recreation Grounds and Africans were forbidden even to enter the premises. During the Council debate it was generally accepted that the question was not whether the Black people were behaving themselves but that everybody would feel `more comfortable' if strict segregation were applied. Indeed Mayor William Jackson argued that `ladies' left the place when they found that `native girls planted themselves' alongside them `to watch the natives' playing cricket. The Council would give offence to a certain portion of the public, he claimed, if it allowed that to continue and he believed that it was `only putting in the thin end of the wedge' if they allowed `Natives to challenge White people'. There was a day coming, he warned, when the latter would have all they could do `to keep [the natives] in their place' as they were making progress in a direction `where they least ought to'.
Further racist regulations soon followed. In December 1903 the pavement bye-law was promulgated which expelled the African population into the streets, a situation that would be maintained, despite numerous protests, until the 1930s. In 1909 segregated bathing was re-imposed, with all East London surf-spots except the Eastern Beach reserved for Whites.  Umvalo's successful appeal against his conviction in the `celebrated Stick case' certainly won for him a personal reward and showed up the pretentious Town Council for what it was. Unwittingly, however, he also ushered in a new phase in Cape history where local authorities were given power to promulgate distinctly racist regulations.
The Umvalo `Stick Case' also heralded the introduction of Black resistance to the growing racism at East London. Black political organisations, known generally as Native Vigilance Associations, had taken root in various of the eastern Cape towns during the 1880s as a direct outcome of the evolution of an African educated elite. The Xhosa people had fought and lost its last war of independence (the so-called 9th Frontier War) in 1878. After that, there developed a strong movement to seek political means to promote African interests through education which brought with it the vote, and therefore `equality'.
East London's location policy tended to have a retarding effect on the evolution of an educated elite. The locations were seen purely as labour pools and an employment certificate was a prerequisite for a permit to reside there. Since teaching was not regarded as employment, however, severe restrictions were placed on that activity. Moreover, schools could initially only be established in the town proper and not in the locations. Because these had to be held at night-time so as not to interfere with labour, and because the Town Council refused to issue passes to Black people who wished to be on the streets at night so as to attend night-school, education was seriously impeded. 
Two events then galvanised the Black community into action. The first was the forced removal of all location residents into the new East Bank Location in 1892, an action which incensed the African people because not only was the location far from their places of occupation but there was also little justification for the Council decision to move them. Second was the Umvalo `Stick Case' which clearly showed up the Municipal Council as a racist body which had little interest in true justice as far as the Black community was concerned.
In 1893, therefore, East London's first Native Vigilance Association was established. It was not a revolutionary step in that its actions were always guarded, it being more of a democratically elected advisory body whose opinions were usually ignored by the Town Council. Furthermore, its concerns lay more in the domain of location improvement, especially the provision of water and lighting, and repair of streets.
It was, however, a first step towards something else. In 1902 an African newspaper, _Izwi Labantu_, was established in East London. By then, events were proceeding rapidly towards a unification of the four colonies of South Africa into a Union, leading the Native Vigilance Associations to turn their attention towards national interests rather than community upliftment. This saw the emergence in 1912 of the South African Native National Congress, the body that would later become known as the African National Congress. 
It was not the purpose of this paper to highlight the origins of racism as such. That it did exist within the towns of the eastern Cape during the second half of the 19th century is beyond a doubt. It is also clear that _de facto_ segregation existed in all of these towns and that the municipalities regarded this segregation as _de jure_ until it was successfully challenged in the Umvalo Stick Case and shown to be unconstitutional. By 1892, however, the East London Town Council had successfully gained an Act of Parliament which allowed for legal segregation within the town -- a full decade before the bubonic plague epidemic would bring legal segregation to Cape Town.
The `sanitation syndrome' was indeed important in galvanising towns like Cape Town, Port Elizabeth and King Williamstown into establishing segregated `locations' far outside the urban limits. East London, however, was virtually untouched by the `sanitation' panic because a decade earlier it had not only already moved its African population far outside the urban limits but had also gained immense legal power to act against its Black population. This action would then propel East London's Black community into taking the first political steps towards safeguarding their own interests.
 See, for example, AW Marx, _Lessons of Struggle_ (Cape Town, 1992), pp 32-3.
 MW Swanson, `The Sanitation Syndrome: Bubonic Plague and Urban Native Policy in the Cape Colony, 1900-1909' in _Journal of African History_, Vol XVIII, No 3, 1977.
 See, for example, GF Baines, _The Port Elizabeth Disturbances of October 1920_ (Masters Thesis, Rhodes University, 1988) and SE Caldwell, _The Course and Results of the Plague Outbreaks in King William's Town, 1900-1907_ (BA Honours Dissertation, University of South Africa, 1987).
 C Saunders, `The Creation of Ndabeni: Urban Segregation and African Resistance in Cape Town' in _Studies in the History of Cape Town_, Vol 1, 1984, pp 165-76.
 A Odendaal, _Vukani Bantu: The Beginnings of Black Protest Politics in South Africa to 1912_ (Cape Town, 1984), p 4.
 Act 23, 1880: `The East London Municipality Act, 1880.'
 _East London Dispatch_ (Dispatch), 17.8.1892. Proceedings of the Magistrate's Court, 15.8.1892.
 KPT Tankard, _The Development of East London through Four Decades of Municipal Control, 1873-1914_ (Doctoral Thesis, Rhodes University, 1991), pp396-402.
 KPT Tankard, `Strangulation of a Port: East London 1847-1873', in _Contree_, No 23, 1987. See also Tankard, _East London: The Creation and Development of a Frontier Community, 1835-1873_ (Master's Thesis, Rhodes University, 1985), pp 42-4.
 On the Cattle Killing episode, see JB Peires, _The Dead Will Arise_ (Johannesburg, 1989).
 CA, CCP 6/2/1/18, 151-4. Native Locations Act, 1876.
 _Dispatch_, 7.9.1892, 10.9.1892. Proceedings of the Eastern Districts Court, 30.8.1892, 3.9.1892. See also _Dispatch_, 5.10.1892.
 _Dispatch_, 3.12.1892. Proceedings of the Supreme Court, 20.11.1892. East London Municipal Offices (ELM), Mayor's Minute (MM) 1892-3, pp 4-5.
 ELM, MM 1892-3, p 13.
 CA, 3/ELN 1/1/1/5, p 347. CM 6.8.1884.
 CA, 3/ELN 1/1/1/8, pp 118, 138, 171, 206, 276. CM 15.3.1892, 5.4.1893, 14.6.1893, 9.8.1893, 1.11.1893. ELM, MM 1893-4, pp 34-6; MM 1894-5, p 24.
 Act 12, 1893: `Local Bodies Increased Powers Act, 1893'.
 ELM, MM 1893-4, pp 4-6, 34; MM 1894-5, p 24. _Cape of Good Hope Government Gazette_ (Gazette), 8.12.1893. Notice 1174, p 1893.
 _Dispatch_, 25.7.1894. Report on Parliament, 18.7.1894.
 Act 11, 1895: `East London Municipality Amendment Act, 1895', Clause 5, Nos. 25-31.
 _Dispatch_, 27.11.1897. CM 24.11.1897. See also CA, 3/ELN 1/1/1/11, p 134.
 CA, 3/ELN 1/1/1/14, p 52. CM 11.2.1903. CA, 3/ELN 1/1/1/18, p 418. CM 16.9.1908. _Gazette_, 12.1.1904. Proclamation 391, p 1903. _Gazette_, 5.1.1909. Notice 1565, p 1909, XXIV, 5.
 Odendaal, _Vukani Bantu_, pp 6-7.
 Tankard, _Development of East London through Four Decades of Municipal Control_, pp 391-2.
 Tankard, _Development of East London through Four Decades of Municipal Control_, pp 402-5.