We are charged with the offence of contravening Section 20 (r) of the Act No. 22 of 1913 in that we did wrongfully and unlawfully aid or abet certain Asiatic persons in entering the Province of the Transvaal from Natal knowing that the said persons were prohibited in terms of Section 4 (a) read with the Minister`s Minutes of the 1st August, 1913, from so entering.
We would like to deal first with the Minister`s Minute of the 1st August, 1913.
It is our submission to the Court that the said Minute which deems the entire Indian community on economic grounds to be unsuited to the requirements of any particular province of the Union is not in keeping with the spirit, if not the letter, of the said Section 4 (a) of the Act No. 22 of 1913. It is inconceivable that the legislators in empowering the Minister to deem "any person or class of persons on economic grounds or on account of standard or habits of life to be unsuited" could have in mind deeming a whole community with varying economic groupings or differing habits of life to be unsuited. It is therefore reasonable to presume that the then Minister exceeded his powers in deeming the whole Indian community to be unsuited. In this contention we are fortified by the dissenting judgment of the learned Justice Rose-Innes in the case of Rex vs Padsha (A.D.) 1923.
Or alternatively, we submit Your Worship, that if any such grounds existed in the year 1913, no such grounds exist in this year 1948. During the passage of thirty-five years, since the Deeming Order was issued by the Minister, the Indian community of South Africa, despite the very limited field of opportunity allowed it by scores of restrictive laws, has made an officially recognized contribution to the economic development of this country.
In this regard, the Union Government in the Agreement concluded with the Government of India in the year 1927, known as the Cape Town Agreement, "recognizes that Indians domiciled in the Union are prepared to conform to Western standards of life, should be enabled to do so." By virtue of these recognitions, the Minister`s Minute of 1913 is rendered obsolete and out- of-date and can have no bearing today on the intention of the legislators in framing sub-section 4 (a) of the said Act.
Now returning to the charge of aiding and abetting, we submit, Your Worship, that our only offence is that of putting into practical effect the assertion of the Union Prime Minister, General Smuts, made so forcefully before the 1946 session of the United Nations Assembly, that South African Indians are Union nationals. This assertion was reiterated by the Minister of Interior, Mr. H.G. Lawrence, at the 1947 session. If we are Union nationals, then it is but reasonable and in accordance with natural justice to exercise the most elementary right of citizenship, that of freedom of movement within the boundaries of one`s country of birth. Any denial of such basic human rights would only make a mockery of democracy and democratic principles.
The crossing of the Provincial borders in wilful defiance of Act 22 of 1913 constitutes the second phase of the Passive Resistance struggle which is being conducted by the Indian community under the aegis of the Joint Passive Resistance Council of the Natal and Transvaal Indian Congresses against the Asiatic Land Tenure and Indian Representation Act of 1946, the Ghetto Act.
During the last 20 months over two thousand gallant men and women resisters of all races have courted imprisonment. They preferred to suffer the rigours of gaol life rather than submit to unjust and undemocratic laws.
Your Worship, it is in this great cause and noble struggle that we call upon volunteers to cross the border and bear the penalty of the law. We consider it an honour to do so.
The Passive Resistance struggle which we are conducting is based on truth and non-violence. It is associated with the name of one of the greatest men of all time, Mahatma Gandhi, on whose death in tragic circumstances just a few weeks ago, the whole world wept. Among the millions of men who paid their last tribute to this great soul was Field Marshal Smuts, the Prime Minister of South Africa.
Mahatma Gandhi was the father of our struggle. Gandhiji too defied the unjust laws of South Africa and suffered imprisonment during the 1906-1914 Passive Resistance Campaign.
This is the man whom Field Marshal Smuts referred to as a "Prince among men." This is the man - the pilot of India`s march to freedom - who is the source of inspiration of our just struggle for democratic rights in South Africa.
This struggle of the Indian community against the Ghetto Act of 1946, against the provincial barriers and against racial discrimination of all kinds is part and parcel of the struggle of the whole non-European and democracy-loving peoples of South Africa to turn this country into a genuine democratic State in which our multi-racial population will live and work in harmony.
It is in view of these considerations that we are pleading guilty to the charge. We are willing to bear the full penalty of the law. Our bodies may be incarcerated but our spirits cannot be crushed. It is the spirit of freedom which lives in the hearts of the oppressed. It is the spirit which seeks to do away with racial discrimination and herrenvolkism. It is the spirit - deep-rooted in the heart of every non-European, generating the urge for a better life. It is the spirit that alone can deliver the people from colour bondage in South Africa and make this land a happier place for the generations to come.
4 The statement was read by Dr. Naicker in the Court.