South Africa's Struggle for Human Rights: The History of Rights in South Africa

2. Burgher republicanism and colonialism

17 2 Burgher republicanism and colonialism The earliest context in which it makes sense to speak of rights in South Africa relates to citizenship status or ‘burgerschap’. At the slave-holding Cape, ‘free burghers’ were independent colonists, typically ‘Boers’ (farmers) who succeeded in moving beyond the strict controls of the governing Dutch East India Company (VOC) from the mid-17th century in order to secure effective rights to land.11 This status (which seems not to have been replicated in other Dutch colonies under VOC control) connoted certain attendant privileges and duties, including payment of taxes, participation in the commando (militia) system, and opportunities to claim land. New research indicates that town-based burghers were able to rise to public office or gain social prestige by acquiring personal wealth, which in some cases proved substantial.In 1778 urban-based burghers at the Cape began a wave of protests against the VOC 18 government during which they claimed the citizenship rights enjoyed by their compatriots elsewhere in the Dutch world.12 Yet, however influential, prosperous or respected they may have been, free burghers remained secondclass citizens in the sense that they were bound to swear oaths of loyalty and obedience both to the Estates General and to local representatives of the VOC, who invariably outweighed settlers in terms of rank and status.13 From the beginning of European settlement there was some limited mechanism for burgher representation in the justice system (the Council of Justice) and by the 18th century burgher councillors were able to convene separately from the official Council of Policy while still remaining subordinate to the Company. Their autonomy and effective power probably increased with distance from Cape Town: the expanding network of rural judicial officials (heemraden, veld-cornets and landdrosts) and burgher militias or commandos (led by the commandant) meant that the Cape’s burgher gentry remained effectively in control of the countryside until well into the 19th century.14 Although free burghers were structurally unequal to the Company and its leading officials, they were not entirely without rights. Roman-Dutch law afforded distinct protections to citizens, including free women, 19 whose status and property rights were probably more secure under Cape jurisprudence than they were in Britain.15 Burghers were also able to exercise a degree of political influence: for example, colonists’ protests against the high-handedness and corruption of Governor Willem Adriaan van der Stel resulted in his discharge from office in 1707. Burghers also cavilled at restrictions on their assumed rights to barter with (or, less decorously, mount raids against) the indigenous Khoekhoen(Hottentots)insearchof cattleandpasture. Freedom to treat indigenous peoples with relative impunity formed part of such rights claims. In 1739, a renegade French-speaking soldier, Estienne Barbier, sparked a revolt against Company rule on the part of white frontiersmen who refused to submit to the law when accused of killing Nama along the Orange River and stealing their cattle. Barbier outraged officialdom by pinning his grievances to the door of a church in explicit defiance of a rule forbidding such conduct. For this and other misdemeanours he was subjected to a public judicial execution, his body quartered and displayed along the chief roads of the Colony as a warning to others.16 Free-burger hostility to the Company, on the one hand, and to indigenous peoples of the interior, on the other, was a volatile mixture and this was soon ignited by the vapours of republican and Enlightenment ideas 20 drifting across the Atlantic from Europe and North America. Between 1778 and 1787 a group identifying themselves as ‘Cape Patriots’ provided detailed complaints against Company misrule, asserting a combination of political and economic burgher rights in the name of democratic revolution (their movement was closely informed by anti-Orangist sentiment in the Netherlands).17 Likewise, in 1795 a group of armed burghers wearing French Revolutionary tricolour cockades took over the rural town of Graaff-Reinet in the name of the people (the algemene volkstem). Refusing to submit to the authority of Company rule or to pay taxes, they established a‘national convention’. Much the same occurred closer to Cape Town in the same year when a band of sixty rebels deposed the landdrost at Swellendam. The objectives of these rebels can hardly be termed emancipatory: in rejecting the jurisdiction of Company rule in Cape Town, they were protesting not only against taxes but also at official restrictions against treating Khoekhoe...