THE LEGAL STATUS OF URBAN BLACKS IN SOUTH AFRICA

The article deals with the principles underlying the official policy with regard to urban Blacks in South Africa as formulated by dr. H .F . Verwoerd. The implications of these principles with regard to political processes, citizen rights. Influx control and freehold of land are outlined, and a more comprehensive survey is provided of the issue of Black citizenship in terns of various acts; the non-participation of urban Blacks in the central political process/ the influx control system , with referense to the background of the system , the contents of the most Important statutory measures/ the modes of possession of fixed property available to urban Blacks ; and reference is made to the system of local government as practised In areas inhabited by urban Blacks. The article closes with an indication of which options might conceivably become realisable in future and the author expresses his personal views on the issue.

A second Implication of th is is that citizen rights may only be exercised 1n those te r rito rie s ; and upon attainment of Indepen dence of those te rrito rie s the citizens of those te rrito rie s automatically fo rfe it th e ir South African nationality.
A third Implication 1s that there Is control o f the movement of the Blacks from the (le ss developed) traditional te rrito rie s (homelands) to the (more developed) urban areas and between various urban areas.This system of control is known as

CITIZENSHIP AND NATIONALITY
With the establishment of the

Definition of concepts
Although there are differences of opinion among practitioners of the humanities and also among members of the ordinary public about concepts (both as to meaning and im plications) SUCh as migration to the cities and u rb a nizatio n , the concepts w ill be ^described 1n th is introduction in the following terms: Migration t ow a rds the cities is a permanent or a semi-permanent change of habitation.Although labour migration and migration towards the c itie s can often be regarded as being synonymous, th is 1s not always so of necessity: it is not only labourers who migrate, and labour migration can take place to areas other than c itie s .

36?
With the decrease In the atractlon of the traditional te rrito rie s , the repeating nature of labour migration is decreasing, and the migrant then settles in the c it y .

Davenport, In his T h e beginning o f urban segregation In South
A frica (1 9 7 1 :6 ), summarizes the period p rio r to 1910 1n the fo l lowing term s: "Regulations for the control of Africans . . .were drafted and enforced, p a rtly because they were not as White It has the following main aspects as Its subject: -the making availab le of land within so-called prescribed areas -that I s , urban areas (under section 9 b is ) fo r habita -or that he did have the necessary permission in terms of section 10 (1 ) (a ) -( d ) .

E F F L U X C O N T R O L
There are mainly fiv e sections (one of which 1s to be repealed) app licable to the removal of Blacks from p r es c r ib e d areas back to th e ir areas of origin: -Section 24 makes provision for the removal of Blacks livin g ille g a lly in a prescribed area; -section 28 makes provision for the removal of redundant

O T H E R I M P O R T A N T A C T S A R E
The B la cks

R E C O M M E N D A T I O N O F T H E V IL J O E N C O M M IS S IO N (1 9 7 6 )
The

R E C O M M E N D A T I O N S O F T H E R IE K E R T C O M M IS S IO N (1 9 7 9 )
The Commission -that it should be replaced with a provision granting Africans the rig ht to remain in areas for three months if they have acquired a permit to do so; -that the R500 fine applicable to employers who employed Africans who were not qualified to be in the urban area should be increased; -that the passbook system under which Africans could be asked to show th e ir passes in public places be abolished; and -that th is should be replaced with a system of control

C IR C U M S C R IP T IO N O F T H E C O N C E P T O F A U T H O R IZ E D P E R S O N S : I N F L U X C O N T R O L
This B ill (which is at present under submission to a Parliamen ta ry Seclect Committee) eliminates the old Section 10(1) "p rivile g e s'' and states that residen ce In an urban area is It is also stipulated that no unauthorized p erson may be present in an urban area between 22h00 and 05h00.The alleged perm anence of urban B l a c k s , however.Is only tem p o r a r y : This interpretation rests on the following motivations: -In the f ir s t place, If the policy of independence of the homelands succeeds f u lly , there w ill be p ra c tic a lly no-one who would qu alify under the provisions of category 1.
-In the second place, If the policy succeeds fu lly , there w ill late r be no more Blacks who used to be South African citizens form erly and who w ill then be e lig ib le under category 2.
-In the th ird place, Section 10 (1 )(a) and (b ) is revoked through the new B il l , so that nobody could, subsequent to its promulgations, achieve new category 2 rig h ts .
-In the fourth place, children are only permanent urban residents should both th e ir parents be holders of category 1 (which 1s a fin ite category) or i f they are holders of category 2 qualifications (th is also being a finite category).
It is also important to note that authorization alone is not su fficie n t, the relevant Black also has to be in possession of approved housing.

Ille g al (unauthorized)
Blacks may be convicted on the basis of th eir presence In an urban area and sentenced to a fine of about R500 or to Imprisonment of s ix months or both.
The offering of em ploym ent to unauthorized persons is also a mis demeanour: the maximum fine is R5000 and the maximum ja il sentence is 12 months (or both).
The onus of p ro o f as to whether he is an authorized person rests with the ^relevant Black -as 1t is in the case of Section The common la w capacity of the courts to suspend eviction or ders and to issue Interdicts is once more suspended.
The efflux control m easures provide that unauthorized p erso ns who have been convicted of a contravention of clause 3(2) (presence in urban area between 22h00 and 05h00), or who, 1n the  1911, 494275 1921, 649314 1936, 1219892 1946, 1863277 1951, 2381592 1960, 3466583 1970, 4989371 1980, 6033443 Black urbanization: The road ahead  In any event, w ill not be reduced) 1s heard more and more frequently nowadays, and from government c irc le s as w e ll.This new approach has then (p a rt ia lly ) had the following im plications: -the new investigation of the issue of the loss of nationality To my mind a growing realization of the unalterable re a litie s w ill force the Incumbents of power In South A frica to give, 1n one way or the other, concrete shape and expression 1n terms of po litical content to the permanence of urban Blacks -with accompanying policy amendments with regard to n atio nality, Influx control and housing.

A
fourth im plication Is that Blacks who are leg ally present In the so-called White urban areas have to liv e In s ep ar a te , d e s ig nated residential a r e a s .The prossesory modes exclude -because of the basic policy foundation of non-permanence of urban Blacks -the freehold of land.It has to do with the (compulsory) Unking of urban Blacks to the geographical te rrito rie s created 1n terms of the Native L a nd s Act 27 of 1 9 1 3 , a nd the Native Trust and Land Act 18 or 1 such as the well-known Rikhoto deci sion, and envisaged new measures.Seeing that th is system 1s probably (and ju s tifia b ly so) regarded by urban Blacks as the most basic datum with regard to th e ir continuing presence 1n the so-called White urban areas, a greater Ideal of attention w ill be devoted to th is system ; -F o u rth ly, attention w ill be directed to the modes of possession of fixe d property available to urban B lacks; and -f if t h ly , reference w ill be made to the system of local government as practised In areas Inhabited by urban B la cks.F in a lly , I w ill Indicated which options might conceivably become realisab le In future -from which you might then also deduce what my personal view 1n th is matter constitutes.
u r b a n iz a t io n , according to M itchell, Im plies the following three phases h ift from ty p ic a lly agricultural patterns to ty p ic a lly urban a c t iv itie s ; and la s tly -a corresponding change in behavioral patterns and views of life (personal urbanization).Control measures 1n South A frica P R IO R T O 1910The great stream of the clty-w ard migration of Blacks started during the Indu strial development which accompanies the disco very of diamonds and gold (since + 1870).The control of the migratory stream was placed in the hands of the urban local au th o rities.Measures were Native L o c a t io n s).
White men's c it ie s , p artly to control and canalize th e ir labour, check th e ir 111-health and prevent Its contagion, deal with th e ir m isfits and contain crim e".A F T E R 1910 The objectives of the n ativ es (U r b a n A r e a s ) Act 21 of 1923 were as follow s: " . . .for the Improvement of liv in g conditions of natives 1n or near urban areas and of the administration of native a ffa irs In such areas; for registration of and better control of service contracts of natives In certain c irc le s and the regulation of the entry of natives to such c irc le s and th e ir residence therein .the basis of being agents for the Department of Native A ffa irs .Statutory control of the movement and Influx of Black men (with regard to the demand and supply of labour opportunities) was Instituted by th is A ct. by th is .In conclusion reference also has to be made to the viewpoints of the then Prime M inister, General J .C .Smuts, as they appear In the 1923 Hansard Reports: " . . .there has been a great Influx of natives from other parts of South A frica into towns, and 1n and our generation has been Just th isthe pressure of the larger ind ustrial centres of South A fric a .The nature population has increased by leaps and bounds . . .fo r the Influx which has taken place in the large Industrial centres a ll over South Africa we have been e n tire ly unprepared . . ." General J .B .M .Hertzog (a later Prime M inister) In the course of the same debate le t It appear that to his mind Blacks could only have temporary residence in White urban areas: " . . . the nature thinks that he w ill be placed on an equal footing with us 1n the White areas . . .The native has to understand that he Is only a temporary resident In the White areas . . ." In 1937 the Minister of Native A ffa irs spelled out the policy underlying influx control In the following terms: " . . .one of the main objects of th is b ill Is to . . .establish once and for a ll the policy that natives should only be permitted in the towns In so far and for so long as th e ir presence Is demanded by the White population II The Natives (urban areas) Consolidation Act 25 of 1945 In 1945 the nativ es (U r b a n Consllldatlon) Act 25 o f 1945 was pro mulgated.T his was In the main a measure of consolidation.
to the maintenance of peace and o rd er.This also Involves the cases under a rtic le 10(1 )(a ) ilit y to punishment of Influx control and curfew laws be suspended, that these laws 1n other words should be modified to adm inistrative and regulative measures (where necessary supported by penal sanctions)as fa r as possible in order to avoid large-scale a rre sts, court hearings and convictions of trespassers of these laws (In the lig h t of the fact that such In the Republic of South A frica by short-term p ris o n e rs )." f approved housing and jobs are availab le .Institution of new measures with regard to influx control The Bill to Am end the L a w on Co-oporatlon and Developm ent was published In October 1980 for commentary by Interested p artie s.In the following Session of Parliament th is b ill, Which made the p rin cip les Of the Group A reas Act 36 o committee (the c r o s k o p f com m ittee) was appointed to consider the relevant b ill In the lig h t of the recommendations of the Riekort com m ission (and the govern ment White paper on it ) and to use these as the point of departure for the (re)conslderatlon of the b ill before making suitable recommendations.This Committee (consisting of ten member, of which two were B la cks, submitted th e ir unanimous report to the Cabinet in 1981, but It has not (y e t) been published.It 1s known, however, that the Committee made the following recommendations:-Fu ll rig ht of ownership of property (land) urban areas under Section 10 of the Urban Areas Act be repealed;-that the rig ht of residence in an urban area should be made dependent on a job and 'approved housing1; 72 hours In an urban area be scrapped; at the workplace and In township home.The o rd erly movement of settlement of Black persons b the C ro sk o p f Committee.
only perm issible i f a Black complies with both the following two con ditions: , -1f he has a p p r o v e d h o using ; and -1f he has the necessary authorization.A uth orized p erso ns are those persons classifie d either as (a) permanent city residents or (b ) those who have a permit (on the basis on an approved se rvice contract).
il l , it appears that there is no question of the relaxation of influx control: on the co ntrary, there has been a real intensification of the control measures in the lig h of th is B il l .In fa c t, these churches have informed the south African government that they w of the B i l l .It is expected that this B ill -in amended form -w ill be dealt with fu lly in the course of the 1984 Session of Parliam ent.prosecution and now ever perhaps a rig ht to liv e in a prescribed area if he fa lls within the provisionary stip ula tions as encompassed in Section 10(1) (a ) -( d ).In the Appeal Court Judgment of Komani V Bantu A ffairs a d m in i stration Board 1980 (4 ) SA 488 (A ) it was ruled that the depen dents (w ives and child ren ) of Black men -who were authorized under the provisions of a rtic le 10(1) (a) or (b ) to liv e in urban areas -could, under a rtic le 10(1) ( c ) , enter that area to join the breadwinner.An interesting legal point arose in Rlkhoto v Bast Rand A d m in i stration Board and A no th e r: Does the fact that a contract worker who had to return annually to his "home area" (though he had worked more than ten years for the same employer) to renew his contract, im ply that he did not any more comply with the requirements of Section 1 the viewpoint that such return did not im ply that the labourer had not worked for an unbroken period.He decided as follow s: " It cannot have been the intention of the workers who remain p h y sic a lly present and a c tiv e ly engaged at th eir place of work within the prescribed area for ten years without any interruption of any kind without attempting to define the continuity required by th is leg islatio n, 1t may be said that it ia lly expressed sharp criticism of the Rik h o to de cision on account of the expected increase of urban B lacks, but, when it emerged that only 144 000 contract labourers would be able to apply for re -c la ssific a tio n , he announced that th is decision would be honoured.The government, however, launched an amendment b ill through Parliament which now cancelled the effect of the Komanl decision with regard to the dependents of the new Section 1 0 (1 )(b ) persons (that is persons who had form erly dispossed of a rtic le 10 (1)(d ) q u alificatio ns, but who now, on the basis of the decision, could be re classifie d as a rtic le 1 0 (1 )(b ) persons).Such dependents may now only come In from outside the urban area in the event of suitable housing being a v a ila b le .As already indicated, there Is an enormous backlog in the provision of suitable housing in the urban Black areas.Application of Influx controlThe arrests In the most important urban areas have IncreasedIn the last two y e a rs: ho m ela n d s .Of these 130 000 only one-sixth (jf 22 000) can be accommodated within the homelands them selves.The other 108 000 enter the South African job market, either leg ally or ille g a lly .-annually,260 000 Blacks look for work In South Africa as a whole; -by the year 2 000 AD the number of Black annual entrants to the labour market w ill have Increased to 320 000.By the end o f the century Blacks w ill constitute about 75% of the total urban population of the country!The estimated popula tion composition w ill then look lik e th is : y e a rs, be settled in the urban areas.The most important growth w ill take place in the four large South African metropolitan areas.The inevitable result of this w ill be:-the lowering of standards of housing and of se rv ice s; -more homes w ill have to be b uilt from 1983 -2000 than have been b uilt in South A frica between 1652 and 1982; and -controlled squatting w ill have to be allowed.The words of an e rstw h ile Prime M inister, uttered 60 years ago, with regard to the fa ilu re to construct a and our generation has been ju st histhe pressure of the larger ind ustrial centres of South A fric a .The native population has increased by leaps and bounds . . .fo r the Influx which has taken place in the large Indu strial centres a ll over South A frica we have been e n tire ly unprepared.

(
which has not been made p u b lic ); -a revaluation and increasing awareness of the In e v ita b ility of Increasing Black migration and urbanization; -a gradual movement to offer more security to urban Black residents In respect of housing (without yet offering property rig h ts: that would, the argument runs, of local government bodies.In a ll fairness to changes that have already taken place, mention must be made of the fact that two of the cornerstones of the old apartheid p o lic y , namely the non-recognition of Black trade unions and job reservatio n , no longer e x is t.You are probably a ll aware of the fact that a p a rtic u la rly Influential section of the ruling National P arty broke away 1n 1982 -because of alleged lib e ra lisin g tendencies.One of the most Important issues at stake between the Government and the new group, the Conservative P a rty , revo lves around the new Constltulon, In w hich, for the f ir s t tim e, the p rin cip le of power sharing with the two other groups, the Coloured and the Indians, has been accepted at the Vervoerdian Ideology.In order not to lose votes at present in view of the coming referendum on the new Constitution,* to be held among White voters, no movement with regard to the destiny of the urban B lacks.It has been announced, 1t 1s true, but nobody expects that Important policy amendments w ill be made 1n the Immediate future.There are many South A frican s, however, who realize and accept that urban Blacks w ill have to be involved In the central p o litical process, and that th is process of Involvement w ill have to be Initiated soon.The alternative to th is w ill Inevitab ly be Increasing polarization and a possible escalation of violence.

THE LEGAL STATUS OF URBAN BLACKS IN SOUTH AFRICA
They did not have any executive powers and were thus very ineffectual and u tte rly unpopular.