Mohandas K. Gandhi

“ Could an intending applicant move the Supreme Court to direct the Town Council to appoint an absolutely independent person on the ground that the permanent officer would be so much under the influence of the Town Council that he could not be expected to give an unbiassed decision uninfluenced by the views of the Town Council, and on the ground thatthe intending applicant would practically be denied the right of approaching two separate tribunals—one original and the other appellate?
A Licensing Officer, under the Act, refuses to issue a license to a person on the ground that he is an Indian. ”

“ He wished to point out that if the Council refused that license, they would place all Indians in the same scale, and would not encourage them to live in premises that were decent and respectable and to live in every way like respectable citizens. Everything done with regard to these licenses became known outside, and if a license was refused to such a man as his client, Indians would say that the Town Council did not want them to live decently and honestly, but anyhow. The Council should not allow such a feeling to be created among the Indian population. ”

“ The fact that you have failed before, to our minds, speaks in your favour; it shows that you persevered in spite of difficulties and failures, which are but a stepping stone to success. We cannot omit to mention here that Mr. Subhan Godfrey deserves the thanks of the Indian community for having given you opportunity to prosecute your studies. He has indeed set an example to the other Indian parents in the Colony as to what a father should do to educate his children, as you have shown what an Indian youth in this Colony can do in the educational line if he has the opportunity. ”

“ Some Europeans, having some respect for the traders and in order to make a distinction, began to call the Indian traders “Arabs”. The expression “coolie” then followed the Indians wherever they went in South Africa, generally as a term of contempt; and remains so to the present day. For its legal or dictionary meaning, Webster might be taken as an authority. For its commercial and popular meaning as understood there, many merchants might be found willing to testify that they would never think of calling Plaintiff and Indians like himself “Coolies”, except in order to insult them. ”

“ If (a) is proved, i.e., if he is proved to be a British Indian, (d) , (e) , and (f) are proved ipso facto; for if he is an Indian he cannot be an Arab, or Malay [either] , and if he is a British subject he cannot be a Turkish subject. It is not denied that he is a Mahomedan, and the confusion has arisen because of that fact. Somehow or other, peoplein South Africa have come to look. upon Indian Mahomedans as Arabs and Turkish subjects. Plaintiff is neither. He has never been to Arabia, even as a pilgrim, and he has never been to Turkey. An Indian Arab or an Indian Malay is an impossibility. ”

“ That the High Court of this Republic has recently decided that all Indians and other Asiatics must reside and trade in certain Locations to be pointed-out by the Government of this Republic, and not elsewhere. ”

“ McWilliam, a perfectly disinterested witness, stated that the premises were decent and respectable. Under the circumstances, he hoped the Council would give due weight to the interests of the landlord. As to the applicant himself, testimony had been brought forward to show that his evidence was true, and he desired to do some business in Durban to meet the expenses entailed in maintaining a household here. They had in the applicant a man perfectly decent and respectable, straight in his dealings, who could speak English sufficiently to make himself understood, and kept books in English. ”

“ That some of us have resided in this Republic for twelve years and upwards, and have valuable stocks of goods in our business premises at Johannesburg. 3. That we respectfully submit that as British subjects we are entitled to the full benefit of the Convention, known as the London Convention, entered into in the year 1884 between Her Majesty’s Government and the Government of the South African Republic, Article 14 whereof provides that all British subjects shall have the right to reside and carry on business in any part of the South African Republic. ”

“ In this Law the offensive word ‘Coolie’ does not appear, its place being taken by the term ‘Indian Immigrant’, which, in Section 118, is defined as meaning and including “all Indians introduced from India into Natal under the provision of the Laws regulating such introduction and those descendants of such Indians who may be resident in Natal.” Persons usually described as Asiatics, Arabs, or Arab traders, who have been so introduced, are expressly excluded. ”

“ It was said on a previous occasion that it was necessary that these licenses should not be increased, but that question did not arise in the present case, as the store for which a license was applied for, had been licensed that year. By granting the application the number of licenses would not be added to. If these stores were to be shut up, the Indian landlords would have to shut up their businesses, and he hoped the Council would give due consideration to the appeal, and order the issue of a license to his client. ”

“ I hold strongly the view that the plaintiff is not a ‘Coloured Person’ within the meaning of that Law, on the following grounds. Under Law 15, 1869, Sec. 2. any ‘Coloured Person’, who is found wandering abroad unable to give a good account of himself, is liable to punishment. In Section 5 the term ‘Coloured Person’ is defined as including, among others, ‘Coolies’. Before that Law of 1869 was passed, there were in existence several Laws relating to Indian Immigrants. ”

“ Mr. C. A. de R. Labistour appeared for the applicant, and said his client had ample capital to start in a decent way of business in the premises, which had been most satisfactorily reported upon by the Sanitary Inspector. The applicant was a capable businessman. Mr. Collins: Have we had the Licensing Officer’s reasons? The Mayor: No. Mr. Taylor: I don’t think the Licensing Officer need give reasons, unless requested to do so by a majority of the Council. All that we have to do is to decide whether or not we will confirm the Licensing Officer’s decision. ”

“ He further said that if the license was withheld from the applicant, he would not be able to get a tenant for his premises. It was clear that the landlord’s interests ought to be considered. Mr Abdul Cadir was a rate-payer just as good as any of the ratepayers of the Borough, and his voice should be heard by the Council. In the applicant, Abdul Cadir had a tenant whom he had known for a very long time and it would be a hardship to the landlord if the license was refused. The premises were suitable for a store, and it would not be possible for the landlord to hire them for any other purpose. ”

“ THE SUBSEQUENT APPEAL
An Indian, named Somnath Maharaj, appealed against the refusal of a licence for premises belonging to the Natal Indian Congress, in Umgeni Road. Mr. Gandhi, who appeared for the appellant and the owners of the premises, said he had written to the Town Clerk for the reasons of the Licensing Officer for refusing the licence, but had been told that the reasons could not be given. In reply to a question from the Mayor, Mr. Gandhi said that the trustees of the Natal Indian Congress were the owners of the property. Mr. ”

“ We pray that God may grant you health and long life to enable you to fulfil your desires, and hope that your perseverance and industry will be copied by other young Indians in the Colony, and that your success will serve as an encouragement to them. ”

“ That the Coolies and other Asiatic Natives who do not at present reside and trade in the specified’ locations, but in conflict with the law, live and trade in a town or village or other prohibited area, shall be ordered by the Landdrost or Mining Commissioner, or, acting on their instructions by the Field Cornet, to proceed to live and trade in the specified locations before January 1, 1899, in terms of Law 3 of 1885. ”

“ From the photostat of the office copy: S. N. 2723.
6↑ Mansukhlal Hiralal Nazar (1862-1906) , who assisted Gandhiji in his work in South Africa. Notes on the Test Case (Prior to 4-4-1898) This and the following item comprise legal “Notes” prepared by Gandhiji to assist the counsel who represented Tayob Hajee Khan Mahomed in the Test Case.
[Prior to April 4, 1898] [7]
With deference to Counsel’s opinion expressed when I was in Pretoria, I submit that according to Clause 1 in the Act, [8] the Indians to whom an attempt is being made to apply the Law do not come under it. ”

“ We cannot refrain, however, from expressing our regret that Her Majesty's Government has decided not to act on our behalf in this matter to its conclusion, for we had hoped that, inasmuch as Her Majesty's Government had submitted our case to Arbitration, the matter would be seen through to the end by Her Majesty's Government. [3]
We have, etc. (Signed) TAYOB HAJI KHAN MAHOMED HAJI HABEEB HAJI DADA MOHAMED CASSIM CAMROODIN & CO. M. H. YOOSUB 1↑ The Test Case, Tayob Hajee Khan Mahomed vs. Dr. ”