As a result of these enquiries and the pressure brought to bear upon the Government, the Pegging Act was passed. The Pegging Act was described as a temporary measure, to operate for three years, in order to provide time for a new commission, The Natal Indian Judicial Commission, to investigate all aspects of Indian life and labour in Natal. It was expected as a result of the pegging act that anti-Indian agitation would die down. The Pegging Act applied only to Durban. Briefly it laid down that no Indian could buy or occupy a house owned or occupied by a European without obtaining a permit from the Minister of the Interior. In this way the situation in Durban was "pegged".
It was not long, however, before other Municipalities in the province seeing the protection given to Durban began an agitation for the extension of the Pegging Act to their areas. This probability was not unknown to Kajee. One of the experiences of the Indian Community is that what is passed as a temporary measure always finds permanence in government legislation, and Kajee was fully aware of the unlikelihood of the Pegging Act falling away after its three-year period. He had behind him what had happened to the Transvaal pegging act of 1939. This too was described as a temporary measure, only to be re-enactive annually, until it in fact took its place in a very general law passed in 1946. The effect of the Pegging Act on Indians in Durban was in many ways disastrous. It confined them to fixed residential areas and gravely affected their economic activities. The areas in which their freedom of moveÂment was not restricted were small and over-crowded, with the result that property values soared beyond even the levels caused by war inflation.
Kajee's problem at this time was twofold. First he had to do all in his power to prevent the extension of the Pegging Act to other towns than Natal. The second, he had to discover some means by which he might ensure that the Pegging Act would fall away at the end of its three years, or provide some alternative scheme which would be acceptable to the Government and to the public, These two problems occupied much of his waking life. At the same time he, together with Mr. S. R. Naidoo had accepted appointment to the Natal Indian Judicial Committee, of which Mr. Justice F. N. Broome was once more Chairman. Added to this volume of work Kajee had to play his part as an official of the Natal Indian Congress in the collection and the formulation of evidence to be submitted to the Commission. And though there appears to be a contradiction in his work as a Commissioner and his duty as an Official of Congress, he was able to relate both to the satisfaction of the Chairman who, we may believe, was a little concerned about Kajee's dual role.
It is easier at this stage of the narrative to follow Kajee in his tacties over the Pegging Act instead of as a Commissioner investigating Indian life and labour. Much evidence was given before the Commission which, in the event, was never used, for the Commission was eventually suspended in the tumbling circumstances of the time. Though Kajee expected much of the Commission's investigations, and indeed was very hopeful about its final outcome, his energies at this time were devoted to discovering alternatives to the Pegging Act.
For years Kajee had become aware of what he believÂed to be was an extraordinary conclusion in European minds about the nature of the Indian problem. He knew of course, the prejudice which besets Europeans living amongst coloured people, and he was quick to understand the fears which obsess Europeans regarding their economic and political supremacy. But the causes of hostility had not been accurately defined. In his search for these causes he was convinced that the main objection of Europeans was a distaste of living in close proximity to Indians. This was not a novel discovery. Indians on their side have always agreed that they have no particular desire to live among Europeans. It was one of Kajee's oft-recurring declarations that all over the world people of the same race, culture and religion, congregate together for residence. The natural affinities make possible a voluntary segregation. At all times there are occasional flights from the herd, when individuals leave their own and pass into another territory. These individual cases, Kajee maintained, should not call for the government legislation discriminating against whole communities.
In the mutual agreement regarding the undesirability of residential intermingling between Europeans and Indians Kajee felt that there might be a common platform offering a useful basis of discussion and a possible settlement. He discussed his views with scores of people and particularly with public men from the Cabinet level downwards. There are records of discussions with representatives of Natal Municipalities, and in particular he was in close touch with Senator D. G. Shepstone, who by this time, at the request of the Prime Minister, was taking an increasing interest in Indian affairs. Through Senator Shepstone he had ready access to General Smuts. It was not to be supposed that in the negotiations which followed Kajee was a free agent acting completely on his own. He was at all times responsible to Congress, at the very beginning of the moves he made he obtained, though not without difficulty, the sanction of Congress Working Committee to pursue his discussions with the Government for the purpose of seeking remedy of the Pegging Act. It is true that he did not always report fully to Congress the progress made. He knew that to broadcast his intentions would stir his political enemies to immediate action. Those nearest him were kept informed of the discussions and were made aware of the policy shaping in his mind. He was persuaded that if he could convince the Government to substitute for the Pegging Act some measure acceptable to Europeans and Indians alike which would be confined to the control of residential proximity, he would gain a valuable concession.
The greatest gain would, of course, be economic freeÂdom, which the Pegging Act restricted in Durban, but the secondary gain would be the avoidance of an extensÂion of the Pegging Act to the rest of Natal. At first sight such a proposal seemed easy enough to put into operation. There were, however, many things at the time which made it extremely difficult. During the war General Smuts asked each province and indeed each city up a post-war Works Reconstruction Committee for the purpose of making plans for the future whereby the ideas of war might be translated into the facts of The Natal Commission, under the Chairmanship D. E. Mitchell, undertook a survey of the province and formulated the plan for the separation of races in residence in Natal. This principle was called Radial Racial Zoning. It was an attempt to give effect to widespread desire on the part of the European public to segregate each race in some area. The idea was that Indians and Natives should be congregated in their own territory and enjoys a measure of political autonomy and economic individuality.
The Indian Congress, through Kajee, and one or two others, put a vast amount of evidence before the Commission, the reports of which Commission were eventually published. Needless to say the Commission's work since proved fruitless, for seldom is it possible to effect in post-war years to the hopes and aspirations aroused by war itself. There is one point the Commission made which was extremely valuable to Kajee's argument that the only real issue between Europeans and Indians was question of residential intermingling. The Commission expressed the opinion that "the population of Natal cannot be divided into economic water-tight compartments based on racial lines. That is to say if economic prosperity is to be established for the whole community, then, in its view the laws of economics must allowed free play between the different racial groups they are between individuals in each group."
The "Pegging Act" provided that Indians should not be allowed to buy property in certain areas of Durban even for investment purposes. This restriction on econÂomic freedom is contrary to the Commission's opinion, and Kajee made the most of it in all his arguments. Towards the end of 1943 Kajee sought an interview with the Prime Minister when he placed before General Smuts the ideas he had in mind. Briefly his proposal was this. He suggested that legislation should be initiatÂed by which the residential occupation of premises in Natal would come under the control of a special licensing Board. This Board should be presided over by a judge or a man of legal training and consist of Europeans and Indians. Its procedure would be simple. Whenever an Indian wanted to occupy a house formerly occupied by a European, or vice versa, an application would be made to the Board. The Board would decide whether the permit should be granted. Its decision would rest on considerÂations of the environment in which the house was situatÂed. The Board would also give attention to Indian housing needs. Fundamentally, the Board would decide whether this change would aggravate social friction between Europeans and Indians. In this way Europeans and Indians would be treated alike, and there would be no need for the Pegging Act.
The Prime Minister saw in this proposal a possible way out of the difficulty. It is important to recognise that General Smuts had his difficulties. He did not like the Pegging Act. He was engaged in a war in which India was playing a tremendous part, and he was about to go to London for a Conference with other CommonÂwealth Prime Ministers. South Africa was getting a bad name, and General Smuts was anxious if possible not to do any thing which would alienate opinion abroad. The proposal appealed to him, and he asked Senator D. G. Shepstone to make suitable enquiries in Durban of public reaction to it. As a result of these enquiries General Smuts was encouraged to go further into the matter. He wondered how it could be implemented. At first Kajee suggested the Prime Minister might use his war emergency powers. This, of course, the Prime Minister could not entertain. The idea was then mooted that the Government should instruct, by Special Cabinet Minute, the Natal Provincial Council to formulate a special ordinance giving effect to the ideas. With the passing of this ordinance, the Pegging Act would fall away.
When Kajee reported this suggestion to his supporters in Congress they were filled with anxiety. Never in the history of Natal Indians have they been willing that the Natal Provincial Council should govern their affairs. At all times they prefer the oversight of the central Government. It looked as if Kajee's plan would be defeated. Meetings were held daily and nightly during which everybody talked at length of the dangers of allowing the Natal Provincial Council any legislative powers over them. In the end, however, they agree proÂvided that certain safeguards could be incorporated in the Minute issued by the Cabinet and that this be looked upon as a special case not to be taken as a precedent.
Eventually Kajee and his friends formulated a docuÂment incorporating the whole plan. They travelled to Pretoria to see General Smuts on the eve of his departure for London. At this interview the Prime Minister studied the document in the presence of the Administrator of Natal, Mr. Heaton-Nicholls, Mr. D. E. Mitchell, The Minister of the Interior, Senator C. F. Clarkson, and others. The Prime Minister put his signature to the statement, and after expressing his pleasure that an agreement had been reached, despatched a cable of felicÂitation to the Viceroy of India, Lord Wavell.
This document came to be known as "The Pretoria Agreement".
It is important to appreciate that the plan described in the Pretoria Agreement was to be a temporary expedient, to be a substitute for the Pegging Act and to stand until Natal Indian Judicial Commission had made its report and its recommendation. Unless this fact be understood, it is not possible to realise the value of Kajee's work.
This interview was undoubtedly Kajee's finest hour, and the Pretoria Agreement his greatest achievement.
The most restrained observer of the scene could not fail to concede Kajee's triumph. It was not, of course, on the same ground as the diplomatic achievement to which the term great is usually applied in international affairs. No one could have claimed so much for-it.
It was not a "Vereeniging", it was not a "Versailles"; though it was intended to be something of a treaty of peace. It was not an "Atlantic Charter" for South African Indians; it was not even a new Cape Town Agreement. It was none of these things. In fact, in the end, it proved to be a "Munich", for Kajee personally as well as for the Indian community. But Kajee was not to know that at the time. In the ministerial atmosphere of the Union Buildings at Pretoria, there was the security of the Prime Minister's presence, the support of Kajee's colleagues, and the assurance of the Prime Minister's signature. Natal, with its enemies among Indians and its "vigilantes" among Europeans, seemed far away. Kajee and his friends, overcome by emotion, listened to the words of General Smuts who, reminding himself and them of his negotiations with Gandhi thirty years before, talked like a father to his children and bade them seek peace and ensure it. Given easily to tears, Kajee swallÂowed the lump in his throat and could not bring himself to believe that what had taken so long to bring to the Prime Minister's desk should take so little time to dispose of once it reached there.
The merit of Kajee's contribution in the Pretoria Agreement is to be found in two things. One is that in conception and scope it was Kajee's own work. True he had many advisers and collaborators, some European and some Indian. There was Senator D. G. Shepstone on the European side, and it would be churlish not to mention P. R. Pather, the Secretary of the Natal Indian Congress on the Indian side, upon whose support Kajee relied with full confidence. The former rendered services in a manner consonant with the immense and solid contriÂbution he has made in a lifetime of interest in the "Native problem. The latter P. R. Pather played a valuable part in the critical discussions which took place with other Indian leaders on the subject. But the credit for the initiation of the plan and the driving force behind its progress must be given to Kajee.
The second feature about it is of historical value. For the first time in the history of the Indians in South Africa, an Indian had initiated and carried through negotiations designed to Culminate in a piece of Ministerial legislation. This had novelty and drama. For any previous instance comparable with it we must go back to the discussions between General Smuts and Mr. Gandhi in 1913 which ended in the Smuts-Gandhi Agreement. At that time Gandhi's protest was directed against certain disabilities suffered by Indians, the chief of which were the Immigration Laws and the Three Pound Tax imposed upon Indians many years before to force them out of the country. Gandhi's Passive Resistance MoveÂment was instituted in 1906 as a protest against these disabilities, and it was only in 1913 that they were disÂposed of to the satisfaction of Mr. Gandhi and the Indian people.
It is important to recognise that the Smuts-Gandhi Agreement confined itself to the remedy of grievances. No social legislation was required to give it substance. The Smuts-Gandhi Agreement was admitted by Mr. Gandhi as a final solution to Indian difficulties, and during the negotiations which led to it Mr. Gandhi was inclined to accept the view that Indians were scarcely entitled to demand more from the Government than he was fighting to obtain. He was criticised by his own followers for this expression of satisfaction with the conditions he had reached, and in a statement he spoke of the time which must pass before further remedies could be sought. In other words, Mr. Gandhi at this time, talked the same language as other leaders, like Mr. Gokhale, who it will be recalled declared in 1908 that South African Indians had no desire whatever to contest the right of the Europeans in their supreme control of the country or to claim political equality.
The later contribution of Mr. Gandhi to the struggle for independence in India has influenced the assessment of his work in South Africa. Gandhi had not become a saint in 1913 and though it would be a deadly sin as well as a most grievous error to talk of Gandhi and Kajee in the same breath it is not blasphemy to contrast the Pretoria Agreement with the Smuts-Gandhi Agreement in their respective contexts. Anti-Indian feeling in 1913 and 1914 was no more intense than it was in 1944. In 1913 and 1914 European agitation was not organised. There were no European Ratepayer's Associations formed for the express purpose of curbing Indian progress, and no Natal Municipal Association established to safeÂguard the interests of the Europeans. Thirty years before the Pretoria Agreement, Europeans in public positions could always be found who were prepared to defend Indians against European reaction. During the hearings before the Lange Commission in 1921 and in its report there was abundant evidence of the anxiety of some sections of European opinion to support the cause of Indians in Natal and in South Africa as a whole. In 1944, no Europeans could be found to come out boldly on behalf of the Indian community. The few so-called liberals went into retreat at this time, and except for presenting an occasional modestly worded memorandum reflecting democratic ideals, preferred silent acquiescence in EurÂopean reaction to forthright political denunciation of racialism.
It was in these conditions that Kajee conceived, initiatÂed, and carried through to a conclusion the piece of work known as the "Pretoria Agreement". To give him credit for a modest degree of statesmanship is not out of place. At any rate, to do so is to echo the appreciation of General Smuts himself. Kajee's triumph was short lived. The news of the Pretoria Agreement came as a thunderbolt to an unbelieving public. Europeans were astounded when they read of it in their newspapers. No less astonished were Kajee's opponents in Congress. There was an immediate outcry against the whole affair. Objections were made that it was a piece of secret diplomacy designed to do away with the protection given by the Pegging Act. Mass meetings were held in the City Hall at which Mr. D. E. Mitchell tried to allay European disquiet. Not even a special telegram from General Smuts to the public of Durban calmed public temper.
It is obvious that the handling of the publicity side of the Pretoria Agreement was at fault. Certain clumsiness was evident at the time. Editors of newspapers had the greatest difficulty in interpreting the implications of the Agreement and were at a loss how to treat the subject in leading articles. The Administrator of Natal was Mr. Heaton-Nicholls. The task fell to him to translate the Pretoria Agreement into a Provincial ordinance. His first attempts were not very happy, and his reported interviews with the newspapers suggested that he was by no means fully consonent with the provisions and the spirit of the Agreement. Eventually a draft ordinance was framed which was called "The Occupational Control Ordinance". The Provincial Council decided to send this to a Select Committee before introducing it into the Council proper.
This Select Committee, of which Mr. D. E. Mitchell was the Chairman, took a tremendous amount of evidence. Counsel, Mr. D. E. Molteno, represented the Natal Indian Congress and the Durban City Council briefed the eminent K.C., Mr. Frank Shaw. Before this ComÂmission Kajee and other Indians gave evidence. The work attaching to such evidence was particularly onerous. Dr. Naicker who had recently formed the Anti-Segregation Council in fact between two fires, between the EurÂopeans who had renounced the agreement and the rising Leftist group in Congress, led Kajee.
The Select Committee did a very unusual thing. It produced a new draft ordinance as a result of its enquiry into the whole affair. This draft ordinance went much further than the Pretoria Agreement in proposing that the investment of money in the purchase of property by Indians should be controlled. This was a complete departure from Kajee's intentions. Indeed all Kajee's work had been devoted to relieving Indians from this restriction which is incorporated in the Pegging Act. He sought interviews with the Minister of the Interior, Senator Clarkson, with Mr. Hofmeyr and others in the absence of General Smuts, putting before them the obvious departures in the ordinance from the Pretoria Agreement. Nothing he could do restrained the authorities in their determination. His final act was to make a special appeal for Congress to appear before the bar of the Provincial Council for address of their grievances. This appeal was granted and Kajee, supported by a few leaders of Congress, spoke to the assembled council in impassioned words, placing the history of the Agreement and analysing the manner in which it had been treated in this proposed new ordinance, the Residential Property and Occupation Control ordinance. Some of the points he made are worth quoting. The Pretoria Agreement insisted that the only control intended was that of residential intermingling by individuals. It was confined to Durban. The new ordinance was to restrict the acquisition of land for business and agricultural purposes throughout the whole province. The Pretoria Agreement made clear that legislation designed for the government of Indians should remain, as it had been before, in the hands of the central government. The new Ordinance sought to make the Provincial Council the arbiter of Indian destiny.
After deploring the fact that Indians possessed neither direct nor indirect representation on the Provincial Council Kajee ended his speech with the following words, "The fundamental issue before the Provincial Council today can be described in a single question. Does the European dominant group really want to solve racial strife, or does it not prefer to establish its own supremacy even at the cost of racial strife? So long as the European section insists upon the economic and social inferiority of the Indian community, so long will there be racial strife; so long as the European community insists that the Indian shall have no representation on bodies which determine the destiny of Indians so long will there be racial strife; so long as the Indians are depressed and segregated by statutes legally imposed by the dominant group so long will there be racial strife.
What does the European section prefer? That is the real issue.
Today this Province is being asked to give permanence to conditions and antagonisms which are rending the world. The Provincial Council is being forced by an aroused and incited public opinion to effect legislation, racial and discriminatory in its character and fraught with the gravest consequences of injury to the whole state. Public opinion has been incited by one vested interest and another, and there is great danger that even a democratic assembly to which all men should look for wise and sober leadership will be driven to accept extreme policies based on racial antagonisms. When Mr. Churchill remarked that this war is war to re-establish the stature of man, he did not distinguish between Indian and European. Indeed he had every good reason to think of the Indian as a man equal in all respects to any other man even in winning the V.C. in this war. Something of this equality and appreciation of the rights of man have been recognised in the constitution of this country.
We Indians in South Africa have, since the Cape Town Agreement, progressed beyond measure. We have been attracted the more in affection to the British CommonÂwealth by every gesture of goodwill and tolerance. It would be a sad and disastrous consequence if the racialists of this province now triumph over the wisdom of this assembly and lead Natal into paths of racial disaster and so alienate the affection of the Coloured peoples of this land. We believe that we can make a contribution to the solution of our problem by measure of representation, and by a determination of remedying the conditions of poverty and distress which today ravage the whole of our society in disease; by the recognition by Europeans that we are members one of another. By the application of the principles Europeans themselves cherish; the present conflict will cease and we shall go forward into a newer hope."
When Kajee and his friends left the chamber the Council was addressed by the Administrator, and by one or two members. Not a word was spoken which left the Indians with any hope.
The Residential Property and Occupation Control Ordinance were passed.
But that was not the end of the matter. Before an Ordinance can be gazetted it must receive the approval of the Governor-General-in Council. Kajee was yet to be vindicated. The Governor-General-in Council refused his consent to the Ordinance. In a special statement to Kajee and Congress, General Smuts agreed that the Ordinance was not a true reflection of the Pretoria Agreement.
Later, overwhelmed by public clamour, the Prime Minister said, "The Pretoria Agreement is dead".
"We must start de novo."