ignoring relevant previously decided cases, it gave somewhat less weight to precedent. Furthermore, South African Roman-Dutch law did not separate law from equity, nor was it codified. Ironically, after Roman-Dutch law was discarded in Holland, it maintained enough life in South Africa that its practitioners were forced to cite centuries-old treatises for the most recent authority.
This is not to say that Roman-Dutch law was immune from change. To the contrary, from the mid-nineteenth century onward, the Natalian version of Roman-Dutch law came under a clear, distinct British influence.36 Legal historian Peter Spiller has observed that from the 1850s to the 1900s “Natal advocates tended to ignore Roman-Dutch law and acted on the assumption that English law prevailed in Natal.”37 Indeed, one contemporary writer took the position that in “Natal the anglicising process has been carried so far as to obscure Roman-Dutch principles.”38 In some areas, the trend was not simply to obscure Roman-Dutch law but to supplant it; for example, the South African inheritors of the Roman-Dutch tradition adopted the English law of evidence and civil procedure.
The organization of the legal profession in Natal was similarly lacking in clarity. Natal inherited from Roman-Dutch law the Roman division of the profession into attorneys and advocates. In Natal, however, this distinction existed in name more than in practice, as the line between these two types of legal professionals was regularly crossed by practitioners. Finding itself in the backwaters of the legal world, Natal could not be too demanding of those it admitted to the profession. As Peter Spiller has demonstrated, “Natal did not generally attract advocates of sufficient training, ability or flexibility of mind to cope with local demands.” Spiller ascribes this to several factors. Natal’s apparent emphasis on Roman-Dutch law scared practitioners away from England; Cape lawyers, who might consider moving to the Orange Free State or to the Transvaal, would not consider life in Natal’s primitive legal world; and the public’s low opinion of Natal’s lawyers prevented the profession from charging fees equivalent to those elsewhere in South Africa. This state of affairs caused Chief Justice Gallwey to remark just a year before Gandhi’s admission that “few advocates, as such, could earn more than a mere subsistence.”39
These conditions resulted in low standards for admission to practice. They also resulted in the right of dual practice. Until the requirements for admission were substantially strengthened in 1893, all manner of poorly qualified men were admitted to the bar.40 No examination was required. In 1863 the rules for admission were altered, but not significantly strengthened, to permit persons without a university education to enter the bar as advocates if they simply sat in court for two years. This system was roundly criticized until, in 1893, the requirements were stiffened considerably. From 1893 on, the quality of the bar began to improve and many more applicants were admitted on the basis of their training at the Inns of Court.41
That Gandhi was in this first wave of London-trained barristers provided yet another reason for the local bar to oppose his admission. Not only was this applicant “colored,” not only was he going to steal away business generated by Indian merchants, but he presented himself for admission on the basis of credentials far superior to those of many in the local bar. The Natal Witness, reflecting on the argument over Gandhi’s admission, editorialized on this point: “The application of Mr. Gandhi’s admission was made by the present Attorney-General, and had the support of the ex–Attorney-General; and when those two gentlemen, with a few others who might be counted on the fingers of one hand, are subtracted from the Bar of Natal, the residuum does not exactly command admiration.”42 It is no wonder that Gandhi received a less than warm reception.
The conditions under which Gandhi and his new colleagues at the bar practiced law in 1894 were less than ideal. The courthouse in Durban was an abysmal place. Its acoustics were terrible, it was decrepit, it was poorly maintained, and it was so poorly built that the wind could be heard “whistling [through it] on a winter’s day.”43 The courthouse did not even contain a law library. Indeed, there was not a single law library in the entire city.44 But perhaps a run-down courthouse and the absence of a law library were fitting for a bar that did not hold itself to particularly high standards.
This unpolished legal setting matched the rough character of Gandhi’s partner’s practice. There was no limit to the ways the resourceful Coakes devised to make money. He did criminal defense work; represented Indian merchants; appeared in bankruptcy matters; pursued collection actions; loaned money and sued when it wasn’t repaid; represented landlords wanting to eject nonpaying tenants, as well as tenants resisting payment; represented natives, Europeans, and Indians alike; engaged in commercial litigation; and, even before Gandhi was admitted, appeared in court to represent the rights of Indian voters. Coakes was not reluctant to demand his fees from his clients or to attack other lawyers trying to steal his clients. He gave no quarter. While his aggressiveness provided him a living, eventually it would land him in ethical trouble with the Law Society and the Supreme Court.
The quality of justice being dispensed in Durban was a paradoxical admixture of rank prejudice and British fairness. On the one hand, Indians were unsparingly mocked for their supposed mendacity as witnesses,45 and Indians and natives were arrested far more often in relation to their proportion to the total population than Europeans. On the other hand, there are numerous reports of judges showing no favoritism to Europeans over Indian or native litigants. For example, shortly after Gandhi was admitted, a European supervisor at a sewage plant was accused of assaulting one of his charges, a native. Despite the European defendant’s denial of the charge and the support the defendant received from the testimony of a second European witness, the magistrate showed no hesitation in finding the defendant guilty.
BARRISTER GANDHI
While he was principally occupied with his political work in the weeks leading up to his admission to practice, Gandhi also performed a variety of mundane legal tasks for the Indian community—rendering advice to Abdulla, performing translation work, and drafting and reviewing documents for his merchant clients. Gandhi also took up Abdulla’s offer to purchase furniture and law books for him and to pay the fees associated with his admission. He read a little law, bought a suit for court, and looked at rooms and houses to rent, eventually settling on a handsome villa at Beach Grove.46 Gandhi brought out the negotiating skills he had deployed against Coakes and reduced the monthly lease payments from an initial asking price of £8 to £6, 10s. In keeping with his elevated image of himself, Gandhi chose to pay this still rather steep price to ensconce himself in an area usually reserved for prestigious Europeans. Most notable among his neighbors was Attorney General Escombe. He saw to it that he would be able to support himself in this style by collecting his retainer fees from the Natal merchants who had pledged that they would underwrite his practice.
After his admission, he did routine office work for Coakes—interviewing a potential client here, drafting a document there—before making his first formal appearance in court. On September 14, 1894, the newly admitted barrister appeared in court to represent, not surprisingly, Dada Abdulla. If Coakes and Abdulla were worried about Gandhi’s ability to handle the case, it wasn’t apparent from the amount of money involved here—the then-handsome sum of £204. Indeed, Coakes may have given Gandhi a case with high stakes to test the young barrister’s range at the start so that he would know what work he could entrust to the new man. Dada Abdulla had sold goods and advanced cash to Gopee Maharaj, taking a promissory note in return. When the defendant defaulted on the note, Abdulla asked Coakes to bring an action against Maharaj.47 He did so, with Mohandas K. Gandhi, barrister-at-law, then trying the case without a jury before Assistant Resident Magistrate James Francis Dillon of the Durban Court and bringing home a judgment, with costs, for his client in his very first trial.48 Gandhi was so successful that the £263 judgment he secured was greater than the amount for which he sued. There must have been celebrations in the chambers of Coakes and Gandhi.
But they were soon enough tempered
