The first part (1) of this evidence comes from the files of Lord Colville, ADM 1/482. His papers are complete and give condemnation of the vessel, followed by the financial breakdown of the proceeds of the sale of The Two Brothers and her cargo, and also the costs involved.

Burnett, perhaps having recognised the brothers Le Roy, Nicholas Le Mesurier and James Major from his years based in Guernsey acting against smugglers, seized the ship notwithstanding the customs dues paid. Despite permission having been given by Murray, the Governor of Quebec, for the cargo to be unloaded there, Burnett ‘scuttled the decks’ to remove the brandy, took the vessel to Halifax, out of Murray's jurisdiction, and libelled her in the Vice Admiralty Court in Halifax. There she was condemned and sold, as detailed below.

Instigated by Lloyd’s, which had insured the vessel, the owners and master of The Two Brothers appealed 2 June 1762. The Judicial Committee in London reversed the sentence of condemnation, and the ship and cargo were ordered to be restored 16 March 1763. What happened next? Was Burnett ordered to refund the value of the vessel and her cargo? Not much of the brandy would have survived. Was the slush fund invoked?

Section (2) is from the printed reports of the Privy Council's Appeal cases on the shelves of the Reading Room in the National Archives.

“Our horses are facing Zimbabwe:” Katlehong Township, mid-July 2021

Katlehong is a sprawling township southeast of Johannesburg. Typical of South Africa's urban townships, it is a mixture of formal housing, backyard rooms, hostels, and informal shack settlements. It merges, to the east and the west with two neighbouring townships, Thokoza and Vosloorus. Collectively the fused townships are known as Kathorus. Not that anyone would say that they hail from Kathorus. Rather, with local identities salient, they will tell you which townships they live in and, likely, which section. The census of 2011 records 737,000 people in Kathorus, of which 98.7 per cent were African. This racial homogeneity, a defining characteristic of South Africa's townships, is an enduring historical legacy. Africans, coloureds, and Indians with rights to reside – permanently or temporarily – in urban areas could only do so in separate, racially designated townships.

It's a forty-five-minute drive from my home in the Johannesburg suburb of Westdene to Katlehong. As you enter the township passing Huntersfield Stadium there is a sign greeting visitors: “Welcome to Katlehong.” It could be welcoming you to another country, another world.

Late on Saturday afternoon, I drive with friends down Sontonga Road to Tsietsi Section at the southern tip of the township, a good 12 kilometres from Huntersfield. For the last week, Kwazulu-Natal and Gauteng provinces have been convulsed by looting. A political struggle within the ruling ANC morphed into an insurrection triggered by the imprisonment of former president Jacob Zuma. The insurrection then turned into an orgy of looting by the poor, and the not so poor, who stormed shopping malls and warehouses.

Members of the eighteenth-century navy were accustomed to using agents. Officers were paid a year or more in arrears, and their crews were also often kept waiting even longer for their wages. There had to be a mechanism, at every level within the vessel, for keeping families, households or estates solvent. Mariners at all levels appointed agents to work for them on shore, whether or not they were in the additional capacity of prize agent. Acting for another in business was a profession in its own right. Naval agents collected wages or half-pay; bought for ready cash the ‘tickets’ which entitled the possessor to collect pay in the future; lent money to the wives of crew members and kept track of where the ships and their crews were. The captains’ agents communicated to their clients if a problem had occurred with passing accounts through the Navy Board, for instance. The young captain John Elliot explained to his family that he needed to have credit advanced him when he was sent to the Mediterranean:

… I have some time ago appointed Innes and Clerk my agents in the city so if you think it proper to give me a credit on them or Messrs Campbell and Coutts the bankers in the Strand or in what other manner you propose … they have had a great deal of trouble about my wages etc when I was in the India Service and since I’ve been in the Navy and have served me well.

In this case Innes and Clerk had financed the young man in expectation of his receiving the pay due to him from the Navy Board: they were acting as unofficial bankers, and providing an essential service to the navy while doing so.

It was important for the navy that as many French mariners as possible could be taken off the sea. Head Money made ships of war very acceptable targets, but merchant vessels also carried sailors. Privateers carried many more men, as they needed to fight as well as to take possession of their captures. One way and another, a large number of French sailors landed up in England. By the end of 1758 the French admitted that the British had 20,000 prisoners to France's 3,000. It was important that the equivalent captured English were exchanged as soon as possible, and cartels were organised as soon as it was feasible to do so, to bring English sailors back into service quickly. Few prisoner exchanges took place after 1757 when most British prisoners had been repatriated. As described below, prisoner exchange in the West Indies, where ‘flags of truce’ were used as a device to trade with the enemy, was a law unto itself.

The status of French prisoners was of concern before war was declared, and the London Gazette carried a long article about it;

There having been various and injurious reports relating to the State of the French sailors detained in England, it is thought proper to remove any prejudice that may be entertained to give the following account of their treatment.

Introduction

This book explores the agency of those residing in South African townships within the context of the country's failing attempt at social and economic transformation. This transformation was to replace apartheid with democracy, social justice, and a human-rights infused rule of law. The country's constitution, the supreme law of the land, was to, inter alia, “Improve the quality of life of all citizens and free the potential of each person …”. These hopes are fast fading.

Agency creates social order as much as social order determines agency. A key argument developed in this book is that two forms of order exist in contemporary South Africa. With township and suburb juxtaposed, the argument is that the law operating in each are different: the lex lokasi in the township and the lex constitutional in the suburb. In theory, the lex constitutional, the constitutionally defined legal system, is the law of the land and therefore of both suburb and township. The analytical point of departure is to challenge this assertion by contrasting the de facto social orders of township and suburb and behaviour within them.

Shortly, I describe the socio-geographic binary of township and suburb and their respective socio-legal orders: the lex lokasi and lex constitutional. This is a bold contrast. South Africa's actual social geography is far more complex than this binary division allows. Even if we accept this two-fold division as usefully illustrating a divided country, aligning divisions of race and class, we must account for how, within the country, the line of division is shifting.

Introduction: the transformer on Phiri Street

When thick black smoke billowed out from the electricity sub-station in Phiri Street every house was plunged into darkness. It was early evening in a July cold snap with temperatures set to dip below zero. Victor called a meeting. Standing in the street, the residents didn't need to discuss what had happened; too many houses and backyard tenants cooking and heating had overloaded the transformer. They quickly concluded that somebody needed to phone Eskom, the national generator and supplier of electricity. The next step was more difficult. Who was going to make the call? Those at the meeting melted away. Whoever rang would be asked their meter number. Their purchase of pre-paid electricity would be checked. This complication capsized the meeting. People went home to cold rooms and mute televisions. Victor couldn't ring, being in the same situation as those who had melted away. But not a man to give up he found a neighbour who had a legit receipt. He gave the call centre operator his neighbour's meter number the following morning. The operator came back with the observation that he was a “low payer.” The neighbour, it seemed, only bought the occasional coupon. Eskom would not dispatch anyone.

Fortunately, somebody knew somebody who worked for Eskom. Victor organised a collection and an Eskom team came out to replace the transformer. The electricians told those who stood around watching what everybody knew; the transformer was being overloaded.

South Africa's crisis through a legal lens

Ideally, a country's laws, what citizens are required to do, are in harmony with its social norms, what people actually do, or at least what they say they should do. Such harmony is never complete. There is always some gap between law and social norms; whether because of criminals and deviants or otherwise upright citizens cutting corners. However, the extent of the disparity is important. When the difference is limited society is functional, but if social practice differs significantly from law there is a crisis of social order.

There are different ways in which the disjunction between law and norms exists. It could be that the law does not consider the plurality of a society and the disjunction between law and norms is uneven within the country. It could be that law lags social norms which have moved on. If so, the law is a conservative force that assists in preserving a past status quo, and with it the entrenched power relationship of a society. It could that the law is being used to engineer social change. If so, law is ahead of hoped for social norms which it has been introduced to bring about. Likely, all three possibilities co-exist, but to what degree and in what ratio will determine the significance of these disjunctures.

Whether codified law is ahead or behind social norms is contestable since it concerns evaluating existing and desired social values and the social order that promotes, controls, or outlaws these. In South Africa, a project of progressive social engineering has been attempted following the fall of apartheid. Its failure has created a yawning gap between practised norms and law.

When Reginald Marsden prepared for the Navy Records Society the two volumes of Law and Custom of the Sea printed in 1915–16, he commented:

… the prize records are in a fair state of preservation, and the prize sentences, in particular, appear to have been carefully filed and preserved. They exist in vast numbers and were at an early date bound in volumes and indexed. They are, however, disappointing as regards the light which it might have been expected they would throw on the growth of prize law. Framed as they are in the same bare and technical terms, they contain little more than a bald statement of the condemnation or order for restitution of the ship or goods in dispute.

Over one hundred years later, exactly the same comment can be made. They are evidence of the huge amount of work done behind the scenes by the clerks who copied and recopied the documents, and prepared the indices to the volumes. If you know the name of the capture, you are taken to the page on which the condemnation is recorded. But we learn very little of the thinking of the law lord who passed down the condemnation or release of the vessel.

The law of nations required good faith, therefore every ship had to be provided with complete and genuine papers, and the master at least ought to be privy to the truth of the transaction (although the French contended that the master could not be expected to have such knowledge). During the trial, evidence was consulted to determine the ownership of the vessel and cargo, with the caveat that the doctrine of ‘free ship, free goods’ had to be established.

Post-colonial constitutions are often born in riven and unequal societies, marked by histories of violence and dispossession. Transformative constitutions seek to address the burdens of those histories. But constitutions are not inked upon a tabula rasa. The new constitutional order is a palimpsest, carrying enduring traces of the social and economic institutions of the past. The success of the transformative project depends on how the constitutional order engages with those institutions.

For all the mutations that it experienced in different parts of the world, colonialism has always cleaved to a certain logic: the logic of material dispossession, often accomplished by imposing capitalist forms of legal property over indigenous systems of community tenure and landholding. Land-grabbing by invoking notions of ‘productivity’, turning people into tenants on their own land, introducing capitalist agriculture, and forcing precarity as a method of maintaining social control have all been defining features of modern coloni- alism. Furthermore, within the colonial context, patriarchy has invariably intensified dispossession and inequality along gendered lines, overseeing both the visible – and often invisible – subordination of women.

It is therefore scarcely surprising that demands for land justice constituted a core part of twentieth-century independence struggles. Once independence had been accomplished, landlessness and deeply skewed patterns of land ownership were some of the major problems that confronted the framers of post-colonial constitutions.

Liberal constitutions framed in the ‘first wave’ of decolonisation often chose to avoid directly addressing this issue: that is, they excluded the ‘social question’ from the purview of constitutionalism.

When, in August 2022, the Supreme Court convened to hear the case of Raila Odinga and Others vs William Ruto and Others, the stakes could not have been higher. The 2022 presidential election had finished in a near-dead heat. According to the declared results, William Ruto had edged out Raila Odinga by 50.49% to 48.85%. The elections had been marked by familiar accusations of irregularities, ballot-stuffing, vote-rigging, errors in transmission of results from the polling booths, and – somewhat novel – electoral interference by some mysterious ‘Venezuelans’ who had apparently been in charge of the software for the voting machines. More spectacularly, when the Chairperson of the Independent Electoral and Boundaries Commission (IEBC), Wafula Chebukati, wanted to declare the results, he found himself facing a rebellion from four of his own fellow-commissioners, who dissociated themselves from the process and held a press conference denouncing him. Chebukati went ahead and declared the results anyway – more grist for the mill of those who believed that William Ruto's electoral victory was irredeemably tainted.

Whichever way the Supreme Court ruled – and under the 2010 Constitution it had to rule, one way or another – it was bound to upset, even enrage, a very large number of people. Not that the Supreme Court was any stranger to such a situation.

To ensure that condemnations were based on evidence ‘out of their mouths’, a set of questions was devised and used universally. The questions established:

• • The nationality of the individual being examined

• • The circumstances of the capture

• • The name and nationality of the master of the captured vessel

• • The identity, cargo and destination of the vessel

• • If the vessel had already been a prize

• • If any personal loss had been sustained

• • In what country the ship had been insured

• • If the cargo was personally owned or destined for market

Separate questions were directed at individuals who might have been ransomed, to establish the conditions of their treatment.

To all commanders, masters, officers, mariners, and others of any ship, vessel, goods or merchandises, which have or shall be seized, or taken as prize, by any private ship of war, or any vessel acting without any commission, and to such other persons who shall be brought to be examined in preparatory, First, let each witness be interrogated to every of the following questions, and their answers to each severally wrote down; as, where were you born? And where have you lived for these seven years last past? Where do you now live? And how long have you lived in that place? And to what prince or state are you, or have you ever been a subject?

On the eve of Independence, Jaramogi Oginga Odinga, Minister for Home Affairs of what was still the Kenya Colony, issued Ministry Circular No. 2. Innocuously titled ‘Membership of Clubs’, the circular was addressed to private and non-private clubs. It stated that:

[The government] wishes to advise all clubs against any discriminatory constitution they might have at present. The government is of the opinion that any constitutions which bar membership solely on grounds of race, colour, or creed, is out of step with the times.

It was unsurprising that Circular No. 2 was one of the first official acts of Kenya's first (broadly) popularly elected government. While colonialism has taken different forms in its journey around the world, one of its common building blocks has always been the maintenance of racial dominance through spatial segregation and exclusion. Look to the history of any anti-colonial freedom movement and you will find it recorded in stark terms, memorialised as a marker of humiliation and subjection.

Under colonialism, spatial segregation was enforced both through laws, and through the action of “private individuals,” who owed their power, status, and ability to exclude to their positions within the colonial hierarchy. This is why Ministry Circular No. 2 was categorially addressed to private and non-private clubs. Oginga Odinga would later say that his goal was to ‘outlaw the social colour bar’. He would also wryly note that ‘some [bars, hotels, and clubs] tried to wriggle by claiming that their exclusiveness was based not on colour but on interest, but we were not persuaded’.