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After the surrender of the Cape by the Batavian Government to the British forces in January 1806, the British military commander, Major-General Baird, took immediate but temporary measures for the civil administration of the Cape. Although the Council of Policy ceased to exist, the ordinary functions of several departments were continued along lines compatible with the principles of the British Government.

The Batavian Governor, JW Janssens, initially refuted the claim that the whole of the Cape Colony had been surrendered. With the signing of the articles of capitulation of 18 January 1806 the effect of the surrender of the whole colony was acknowledged.

A commission dated 30 July 1806, was granted to Du Pre Alexander, Earl of Caledon, to be Governor and Commander-in-Chief in the Cape of Good Hope and its territories and dependencies. According to his accompanying instructions the Governor was to be the supreme head of the government with all legislative and executive authority as well as civil and military power vested in him as the delegate of the sovereign power.

The Governor was to exercise the administration of justice according to the laws and institutions that existed in the settlement, subject to the regulations made during the first British Occupation and further directions he might receive. In emergencies he could deviate from instructions, provided he reported to the Secretary of State. The legislative power of the Governor enabled him to make laws by proclamation. These legislative acts, together with reasons for them, were to be transmitted to the British Government for approval.
The relative independence of the local administration was increased by the Governor’s patronage of the civil service and the salary budget. The Governor had, therefore, with the exception of departmental heads and the president of the High Court of Justice, complete control over all officials with regard to their appointment, dismissal and pay. The Governor’s powers were restricted by the fact that all appointments made by him were to be confirmed by the British Government before they became permanent.

In judicial matters the Governor and Lieutenant-Governor formed a court of appeal in civil cases exceeding £200, while for criminal appeals the appellate jurisdiction was vested in the Governor and assessors appointed by him.

Although the Governor possessed wide financial powers and was authorized to issue licences for schools and marriages, commissions to ships of war and to call up the militia, he had to report to and obtain approval for his decisions from the Secretary of State. The extent of the Governor’s military powers was ambiguous and was only clearly defined in 1811, whereby the powers of the Governor, a civil authority, to interfere in the command of the regular army were limited. These limitations were not subsequently enforced.

In the absence or incapacity of the Governor the Lieutenant-Governor or the commander of the forces would assume the administration of the Colony.

Under Cradock and Lord Charles Somerset no radical constitutional changes in the powers of the Cape Governor were instituted despite the fact that the Cape was formally ceded to Great Britain in 1814 and that Somerset administrated the Cape as a permanent British Colony from April 1814.

On 18 January 1823 two commissioners were appointed to enquire into the administration of the Cape of Good Hope. In 1825 an Advisory Council consisting of six nominated officials, including the Chief Justice, Colonial Secretary, Auditor-General and Receiver-General was appointed as a check on the wide powers of the Governor. The Council members were to advise the Governor and discuss subjects submitted by him, while being allowed to minute subjects they themselves would like to be considered. The Governor was not bound by the Council’s advice, but where he acted against their advice he was answerable to the Secretary of State. The Council was ineffective in curbing the Governor even after two colonists replaced the Colonial Secretary and Auditor-General on the Council in 1827.

In 1825 it was decided to divide the administration of the Cape in two divisions under separate governments with a lieutenant-governor as the head of the administration of the eastern division. The Governor retained military command over the whole colony, but was to conduct the civil administration of the western province only. The separation did not eventuate and in 1827 provision was made for a commissioner-general to superintend the affairs in the eastern districts subject to the authority of the Governor. This appointment ceased in 1834.

The Charter of Justice of 1827 deprived the Governor of his appellate jurisdiction, and the appointment and dismissal of judges was placed outside his control, bringing about a separation of the judicial and the executive powers. In 1834 the executive and legislative powers were separated by the establishment of an executive council, consisting of specified office holders and a legislative council, consisting of five officials and from five to seven unofficial nominees. The Governor acted as chairman ex officio for both councils. The Governor was to consult the Executive Council on all executive matters except those of great urgency and to provide a full explanation to the Secretary of State when acting contrary to the Council’s recommendations. The appointment or dismissal of superior officials was subject to the Council’s advice or to confirmation by the Crown. The Governor summoned and prorogued the Legislative Council, nominated the unofficial members, and presided over their meetings. The Governor was to recommend ordinances regarding appropriation, supply and the good government of the Colony. He had a casting vote, but had to furnish the Secretary of State with reasons for opposing council decisions. The Governor was restricted in proposing certain ordinances concerning the constitution, religion, revenue, securities, divorce, etc. All ordinances were subject to the approval of the British Government.

The Governor further had the power with the approval of the Secretary of State, to remit sentences, appoint officials and, with the approval of the Executive Council, dismiss officials.

The clamour for separation in the eastern districts culminated in the appointment of Captain Stockenström as Lieutenant-Governor of the Eastern Province in February 1836. The uncertainty as to the extent of the Lieutenant-Governor’s powers came to a head in 1847 when Lieutenant-Governor Young claimed independence from the Governor’s power. After his departure in November 1847, the position of lieutenant-governor was not filled and for the following eight years the functions of the office were continued by a secretary and clerk.

The vigorous agitation for representative government culminated in the Cape of Good Hope Constitution Ordinance of 1852. In the legislative sphere the Governor still possessed wide powers and money bills were initiated upon his recommendation. The Governor shared the right with members of both houses to introduce other measures and also possessed the right to return bills to either house with amendments, and to assent to, refuse or reserve the bill for the royal pleasure. Copies of all acts were to be transmitted to the office of the Colonial Secretary.

Although the Governor’s general powers were greatly restricted his executive influence remained extensive as all executive power was vested in him and an executive council consisting of office holders appointed to the position by him.

From 1855 the vacant Lieutenant-Governorship was filled. Apart from taking over the command of all military matters on the Eastern Frontier, the Lieutenant-Governor was also responsible in an administrative capacity for the Eastern Province.

Because the Lieutenant-Governor, as commander of the forces at the Cape, did not have his headquarters at the seat of government, a Military Secretary to the Governor was temporarily appointed at imperial expense. Every two years the Governor was to report fully on the duties of the Military Secretary and whether the office could not be abolished.
In 1872 responsible government was introduced, and the Governor’s executive powers curtailed. By virtue of the new instructions the Governor was empowered to appoint and suspend officers, to assent to laws, remit sentences and summon, prorogue and dissolve the legislative body, while restrictions as to certain types of legislation were imposed. While the Governor could appoint and remove members of the Executive Council, the actual control of all public departments was placed in the hands of those members with the confidence of the representative legislature.

Apart from the governmental functions performed by the Governor, various Governors were, in addition, appointed as High Commissioner to represent the imperial interests in Southern Africa. In 1889 the office of the Governor, who, according to the definition of 1883, was administrator on the advice of the Executive Council, was permanently combined with that of High Commissioner.

In 1900 the office of Governor was once again separated from that of High Commissioner. The latter was domiciled in the Transvaal and in 1905 his position was incorporated with that of the Governor of the Transvaal and Orange River Colony.

The Governor of the Cape, who on several occasions was also appointed Governor of other territories, such as Griqualand West in 1871 and British Bechuanaland in 1885, remained the titular head of the government up to 1910.

On the commencement of the Batavian Republic’s administration of the Cape in 1803 the office of Fiscal was abolished and an Attorney-General, G Beelaerts van Blokland, appointed. After the second British occupation of the Cape in 1806 the office of Fiscal was re-introduced. In 1928 the Charter of Justice resulted in a revamping of the whole judicial system and the establishment of the permanent post of Attorney-General.

The Attorney-General was the state’s public prosecutor in all criminal cases. Subordinate to the Department of the Colonial Secretary, he acted as the lawyer of the state and legal adviser to the various government departments and offices.

As the work of the Attorney-General increased, he was granted greater independence in the execution of his duties. In 1873 the clerks of the various courts in the Colony, the Master of the Supreme Court, the Registrar of Deeds and all magistrates were permitted to correspond directly with the Attorney-General in connection with judicial matters. Only in cases concerning the obtaining of legal advice, certain departments were still required to approach the Attorney-General through the offices of the Colonial Secretary.

In 1878 the ministerial division of the Law Department, under the Attorney-General as ministerial head, was created. The departments of the Attorney-General of the Eastern Province, the Supreme Court, the Eastern Province Supreme Court, the Circuit Courts and the Registrar fell within the ministerial division. Later the offices of the Registrar of Deeds (1887), prisons (1889), convict stations and the Porter Reformatory (which was re-allocated to the ministerial control of the Colonial Secretary in 1894), district courts and police, excluding the police of Cape Town’s district no 1 (1894), police of Cape Town’s district no 1 (1896) and the administration of mines (1907) were placed under the Attorney-General’s ministerial control.

While retaining his judicial functions and powers the Attorney-General’s duties increased in time and his powers were extended accordingly: in 1894 he was empowered to sign the appointments of field-cornets and in 1900 to confer with the judges of the appeal court in connection with regulations in terms of the Water Act of 1899. He was also responsible for the proper administration of the offices and institutions which were placed under his control from time to time.

At Union in 1910 the department as such was abolished and placed under the control of the Union’s Department of Justice. From an initial staff of two members with administrative expenses of ₤1650 in 1828 the department of the Attorney-General had grown to one of the largest of the Cape Colony in 1910 with a staff of over six hundred with expenses of ₤635 980 for the financial year 1908 – 1909.

The archives of the Attorney-General comprises three sections:
A. The archives of the Fiscal
B. The archives of the Attorney-General
C. The archives of diverse bodies, eg military courts, Treason Commission and Martial Law Council.

In 1835 the eastern boundary of the Cape Colony was extended to the Kei River. East of the river the tribes remained independent although government representatives were stationed with the important chiefs to enforce the treaties.

Between 1852 and 1856 a General Resident for all the tribes between the Kei and Natal, south of the Quathlamba Mountains was also appointed.

Transkei:

In 1858 the area between the Kei and Bashee rivers was conquered by the colonial forces and settlements of Fingoes and other favourably disposed blacks from British Kaffraria established at Butterworth and along the Bashee River (Idutywa) under the supervision of a Special Magistrate.

In 1864 the formerly hostile Gcalekas were allowed to return west of the Bashee and a British Resident for all the tribes and magistrate for the Idutywa Reserve appointed to reside in the neutral area between the settlements of Gcalekas and Tambookies.

On the recommendation of the Commission of Native Affairs in 1865 more Fingoes and Tembus from the colony were settled in the territory east of the Kei River and this led to the growth of the districts of Fingoland and Emigrant Tembuland.

In September 1878 a Chief Magistrate was appointed for the districts of Fingoland, Idutywa Reserve and Gcalekaland, which were collectively to be called the Transkei. Seven magistrates were appointed to assist the Chief Magistrate: three in Fingoland (Nqamakwe, Tsomo, Butterworth), one at Idutywa Reserve and two in Gcalekaland (Kentani, Qora-Bashee area – later Willowvale). In 1879 Fingoland and the Idutywa Reserve were annexed to the Cape Colony as the Transkei and the regulations for its administration laid down. In 1885 Gcalekaland was also annexed to the colony.

Tembuland:

East of the Bashee River the area known as Tembuland Proper was ceded to the colony in 1875 by the resident tribes. Tembuland Proper became a magisterial district under a chief magistrate, at Emjanjana, assisted by three assistant magistrates, stationed at Mqanduli, Umtata and Dalasile (Engcobo), who were to have jurisdiction over various sections of the tribe and try all cases except murder. The latter were to be tried by a court consisting of the Chief Magistrate and two assistant magistrates.

In 1878 the jurisdiction of the Chief Magistrate was extended to include Emigrant Tembuland, Bomvanaland (and Pondoland). Tembuland Proper, Emigrant Tembuland and Bomvanaland were collectively to be called Tembuland.

Emigrant Tembuland consisted of that area along the Indwe River which had been conquered in 1858 and where, in 1865, a number of Tembus, resident in the colony, had been settled in an attempt to strengthen the alliance with the Tembus in Tembuland Proper. Emigrant Tembuland however remained under British rule and a Tembu agent was appointed. The extensive area required additional supervision and in July 1878 an assistant magistrate was appointed at Xalanga. In 1879 the title of the Tembu Agent at Cofimvaba whose duties entailed those of a magistrate, was changed to Resident Magistrate and the seat of magistracy moved to Southeyville. In 1881 a further magistracy was established at St Marks. In 1883 a portion of the Xalanga district was added to the Southeyville District and the seat of the latter magistracy moved to Cala with the district’s name changed accordingly. A part of the former Southeyville district was added to the district of St Mark’s in 1884 and the districts of Xalanga and Cala amalgamated under one magistrate, resident at Cala. In 1885 Emigrant Tembuland was annexed to the Cape Colony.

Bomvanaland consisted of the area east of the Bashee River adjacent to Tembuland Proper and inhabited by Moni’s tribe, where an agent, with magisterial powers, was appointed in 1877. In 1879 an acting Resident Magistrate was appointed at Ncehama for the district of Bomvanaland and during 1880 the seat of magistracy was established at Elliotdale. Bomvanaland was annexed as part of the Cape Colony in 1885.(26)

Pondoland consisted of the area between the Umtata and Umzimkulu Rivers and the Kahlamba mountains and the sea, where the paramountcy of Faku, Chief of the Amapondos, was recognized by treaty in 1844. Part of the territory was ceded to the Cape Government in 1861 and Adam Kok’s Griquas were settled in a part of the ceded area while a magistrate was appointed with the tribes in the remaining area with the added responsibility of enforcing the adherence by the Pondos of the 1844 treaty. In 1878 the breaches committed by the Pondos of the treaty of 1844 resulted in the deposing of the paramount chief of the Pondos, the purchase of the St John’s River Mouth area and the division of Pondoland into Eastern and Western Pondoland. The Chief Magistrate of Tembuland was to act as the British Resident for Western Pondoland while a British Resident was appointed for Eastern Pondoland and a magistrate was placed with the friendly tribe of Jojo’s Amaxesibe.

In 1885 the coast of Pondoland was proclaimed a British protectorate and in 1886 the Xesibe territory was annexed to the Cape Colony as part of the district of East Griqualand.

Tembuland (and Transkei):

On the death of the Chief Magistrate, Transkei in 1890, it was decided not to appoint a successor and to attach the district for fiscal and judicial purposes to that of the Chief Magistrate, Tembuland.

Tembuland (Transkei ad Pondoland):

Prior to 1894 the influences of the British government in Pondoland was limited to that exercised by the British Residents appointed for East and West Pondoland respectively. In 1894 Pondoland was annexed to the Cape Colony and while East Pondoland became part of East Griqualand, West Pondoland was placed under the jurisdiction of Tembuland. Three magisterial districts for the former East Pondoland (Tabankulu, Umsikaba and Bizana) and two for West Pondoland (Libode, Ngqeleni) were established. In 1896 the whole of Pondoland was placed under the jurisdiction of the Chief Magistrate, Tembuland and an Assistant Chief Magistrate for East and West Pondoland was appointed.

Transkeian Territories (including Transkei, Tembuland, St John’s River, Griqualand East, Xesibe country, Rode Valley, Pondoland):

In 1902 the chief magistracies of Tembuland/Transkei/Pondoland and Griqualand East were amalgamated and the jurisdiction and functions assigned to a single Chief Magistrate for the whole area beyond the Kei River, who was to be called Chief Magistrate of the Transkeian Territories with the seat of magistracy in Umtata. He was to be assisted in the execution of his duties by an Assistant Chief Magistrate as well as an additional Assistant Chief Magistrate for Griqualand East and East Pondoland.

In 1904 the judicial functions of the Chief Magistrate of the Transkeian Territories were transferred to the superior courts of the colony and the offices of the Secretary for Native Affairs and the Chief Magistrate, Transkeian Territories, united under Colonel Standford. The seat of the Chief Magistracy was therefore removed from Umtata to Cape Town and the Assistant Chief Magistrate for East Griqualand and East Pondoland assigned to Umtata and Kokstad respectively.

In 1906 the jurisdiction of the Chief Magistrate and Assistant Chief Magistrate of the Transkeian Territories, in cases of divorce and separation was re-instated.

The offices of the Secretary for Native Affairs and the Chief Magistrate of the Transkeian Terriroties were separated again in 1907 after Standford’s retirement.

The Archives:

The Archives of the Chief Magistrate of the Transkei include documents dated 1871 – 1876 belonging to the British Resident with Gangelizwe, who later became the Chief Magistrate of Tembuland, and which have been described with those of the Chief Magistrate, Tembuland.

As the Chief Magistrate of Transkei and Tembuland were separate offices prior to 1891, they form individual archives, arranged chronologically. After September 1891 the archives relating to both territories form a unit which incorporates the archives of Pondoland from 1894 and Griqualand East from 1902. A few letter books, indexes etc, started prior to 1891 by the individual Chief Magistrates of Transkei or Tembuland, were continued after amalgamation in cases relating specifically to either Transkei or Tembuland. In some instances these books can be found with the archives of the Chief Magistrate of the amalgamated office and not with those of either the Chief Magistrate Transkei or Tembuland.

The Colonial Secretary was the most important government official at the Cape during the Second British Occupation. Initially, the majority of the governmental administrative powers were vested in him. The constitutional changes during the latter half of the nineteenth century resulted in an increase in the number of government departments and a decentralisation of functions.

After the capitulation of the Colony to the British authorities in 1806 a Secretary to Government was nominated, but only in May 1807 was a permanent Secretary and Register of Records appointed, who was to be assisted by a deputy.

All acts done and order issued in the name of the Governor were to be by the Secretary and Register of Records, and fees, which would be audited and paid to His Majesty’s Receiver General quarterly, were to be received in his office. As administrative head all letters and memorials from departments and individuals on colonial and civil matters were to be sent to the Colonial Secretary’s Office.

The Colonial Secretary often officiated as head of government during the Governor’s absence, although he was not officially empowered to do so.

The Colonial Secretary was, by virtue of his position, to be a member of the Executive and Legislative Councils which were established in 1834. After the introduction of representative government in 1854, the Colonial Secretary was permitted to take part in discussions in both the House of Assembly and Legislative Council, but could not vote.

In 1872 the Cape Colony received responsible government which resulted in the establishment of the ministerial divisions of the Colonial Secretary, the Secretary for Native Affairs, the Commissioner of Crown Lands and Public Works and the Attorney-General. Each ministerial head was responsible for the duties connected with the administration and accounting of various government departments. The Colonial Secretary’s portfolio included the departments of his own office, agriculture, divisional courts and police, education, post office, and medicine (hospitals), and these departments therefore correspond with and reported to him.

For practical purposes the ministerial portfolios were altered from time to time. In 1892 the duties connected with the various agriculture departments and in 1893 those connected with the post office, agent-general and auditor-general were transferred from the Colonial Secretary to the Treasurer, in in 1894 those of the divisional courts and police to the Attorney-General. Certain departments, formerly attached to the divisions of other ministers, were again assigned to that of the Colonial Secretary, for example the departments of printing and stationary in 1882, of convicts, prisons, industries and the Porter Reformatory in 1894, defence and the Cape Mounted Police in 1904, and the newly established Department of Public Health in 1907.

Within the Colonial Secretary’s department itself the volume of correspondence and administrative duties resulted in the creation of branches of the office. In 1891 a chief clerk was appointed to head the local government and public health branch. On the establishment of a separate public health department in 1907 the title of the branch was altered to the Local Government and Hospitals Branch.

In 1902 the administrative and convict branches were amalgamated under a chief clerk. The title of the Defence and Police Branch, which resulted after the transfer of the administration of the respective departments in 1904, was changed to the Defence Branch on the assigning of the administration of the Cape Mounted Police to the Attorney-General’s portfolio in 1908. The Defence Branch of the Colonial Secretary’s Office continued to handle matters relating to defence such as medals, arms and ammunition and explosives.

From 1905 an officer was placed in charge of the Immigration and Labour Branch of the Colonial Secretary’s Office to exercise the duties of the Chinese Exclusion Act (1904) and the Immigration Act (1902) formerly performed by the Medical Officer of Health.

The Colonial Secretary’s department was also responsible for performing the duties in connection with specific acts. From 1883 all applications for naturalisation papers were to be made to him whereas such applications had formerly been in the form of memorials addressed to the Governor. From 1891 the management of the Life Assurance Act (1891) was assigned to the Colonial Secretary’s department. In 1899 the sale of arms and ammunition was limited with permits obtainable from the Colonial Secretary.

On the creation of the Union of South Africa in 1910 the office of the Colonial Secretary was abolished, and the duties assigned to the Minister of the Interior.