COURT-MARTIALLED.
O, if to fight for ... commonweal
Were piety in thine, it is in these....
Wilt thou draw near the nature of the Gods?
Draw near them then in being merciful.
_Shakespeare._
Arrived at Graaff Reinet, I was instantly removed to gaol, where I was
confined in a small room. Here, isolated from the rest of the world, I
was to spend many anxious days and sleepless nights. During the day I
was allowed to stay a few hours in an inner yard or enclosure of the
prison. The rest of the time I was locked up, and no bright sun-rays
could revive my drooping spirits. I begged permission to go as far as
the prisoner's yard, and promised not to speak to the other
prisoners--no, not even wink an eye, and should I transgress in any
respect the guard could shoot me down. I desired intensely to move and
breathe in the open and pure air--Nature's gift to all. But this favour
was too great. On the contrary, I was forbidden, on penalty of death, to
address any one. To add to my misery other forces seemed to co-operate.
For the very evening after my arrival an unknown gentleman entered my
room. He carried some documents, and politely informed me that I must
get ready for my trial. He hinted, moreover, that I should expect the
worst. If I had not a will, and wanted one, it should be drawn up
without further delay. If I had any documents to be disposed of, I
should arrange about these as well. In short, this kind (?) fellow gave
me to understand that my career was soon to terminate. How? That was the
question.
The next morning the local magistrate came to pay me his respects. The
unpleasant remarks of the previous evening were cruelly reiterated,
enlarged upon, and emphasized. The magistrate volunteered very kindly to
submit, if necessary, all my papers to some one I may please to appoint.
He would also deliver messages to my sorrowing friends and relatives. As
my trial was pending, I asked him what he meant by talking such
nonsense. Surely the British were not going to shoot each and every Boer
officer whom they captured, and that without fair trial!
Though no coward, I must admit that such conversations were not
calculated to produce a favourable impression on my mind. They might
have been well meant, but did more harm than good. It is one thing to
face the enemy on the battlefield, where one may defend himself; 'tis
something else to be dangerously, almost mortally, wounded, and then to
be at the mercy of the foe. For three consecutive nights Nature's
greatest gift--sleep--to suffering humanity had departed from me. Why
could I not sleep? Was it fear that kept me awake? No, not that. My
conscience was clear, my hands unstained. But locked up in that small
room, with no one to speak to, my thoughts began to multiply, and I lay
meditating night after night. That was enough to make a young man old
and grey. Yet there was one friend who helped me to beguile the dreary
hours of confinement. That friend was my beloved pipe.
One evening, towards the end of February, I was told to appear before a
military court the following morning. This announcement seemed strange
to me, for I was not prepared for a trial. I was resolved what to do.
At 8 o'clock the next morning I was taken by an escort of six soldiers
to the court-house. Having taken my place in the prisoner's box, I
listened to my charges, which were recited as follows: Fourteen cases of
murder; wreckage of trains; and ill-treatment of prisoners-of-war. To
the question, "Guilty or not?" I pleaded "Not guilty," whereupon I was
requested to make my defence, which I declined to do; for the public
prosecutor had promised me, and rightly so, that, if I could produce
any witnesses to disprove the [alleged] charges brought against me, I
could summon them. As none of my witnesses were present, nor an
opportunity of enlisting the services of an advocate and solicitor given
me, I refused to take upon me the burden of pleading in self-defence. I
knew that if I did acquiesce in such a trial, it might prove fatal to my
best interests. It would then be urged, too, that Kritzinger had a fair
trial, when condemned to death, something which would be altogether
untrue.
After I had thrice declined to be tried without witnesses and legal
advice, I was sent to gaol, and told to be ready for trial on the 7th of
March. I now addressed a letter to General French, in which I brought to
his notice how I was being treated. French wrote back that he had
corresponded with Lord Kitchener concerning my case, and that Lord
Kitchener's orders were that I should have a fair trial, _i.e._, legal
defence and witnesses for my case.
On the 1st of March, seven days before the appointed trial, I was again
summoned to appear in court. My charges were read out, and the same
questions were submitted to me. Again I declined to make a defence, and
remarked: "I am in your power, gentlemen--you may do as you please,
pronounce any sentence; but _I_ shall _not_ defend myself." I then
referred the court to French's letter, whereupon I was again removed to
my lodgings.
Meanwhile, I succeeded in enlisting the services of Advocate Gardiner
and Attorney Auret, Graaff Reinet, and made such arrangements that my
witnesses could be present at the trial.
Advocate Gardiner arrived on the evening of the 6th of March. The
following day the court-martial commenced. As my witnesses had not yet
arrived, it was decided that the evidence for the prosecution should
first be taken.
The counsel for the defence took exception to the charges of
train-wreckage, ill-treatment of troops, and some instances of murder;
charges which, _prima facie_, would not stand the test of examination.
These were then withdrawn by the prosecution. After this subtraction
there still remained four charges of murder, which we shall enumerate
in succession.
1st Charge:--
_Murder_.
On or about the 15th of February, 1901, it was alleged that I had killed
and murdered Jafta and Solomon, natives, British subjects, at
Grootplaats, Murraysburg, Cape Colony.
Mr. Boltman, the owner of the farm Grootplaats, was the principal
witness for the prosecution. He deposed that he saw one of my officers,
_i.e._, Antonie Wessels, riding up to me, and after Wessels had spoken
to me he rode back and shot the two natives. Hence I must have given him
orders to shoot them! Besides, Mr. Boltman also declared that he had
heard me say to two men, whom I had arrested along with the two natives
in question, "Do you see these natives? Well, I am going to have them
shot, and in future I shall treat all armed natives in the same way."
All these statements were refuted by one of the men to whom I was
supposed to have made the remark of having the natives shot. The man
denied that he ever heard such a statement from my lips.
2nd Charge:--
_Murder_.
In that I have killed and murdered John Vondeling, a native and British
subject, at Tweefontein, Graaff Reinet.
In this case it was proved by the witnesses for the defence that the
native had been shot three days before my arrival at the farm where the
murder was committed.
3rd Charge:--
_Murder_.
About the 18th of March, 1901, I had killed and brutally murdered a
native at Prinsfontein, Tarkastad.
Mr. Mantel, the farmer, deposed:--
One of Kritzinger's men was with me as his commando passed some
distance from my house. Van der Walt said to me, "Do you see that
man in front, riding on the large blue horse? That man is
Kritzinger." I then saw a few burghers riding up to Kritzinger, and
after they had halted for a short while they went back and shot the
natives.
My witnesses proved that at that particular time I had no blue horse in
my possession. Neither was there such a man as Van der Walt in my
commando; and the natives in question had been shot by another
commandant without my instructions.
4th Charge:--
_Murder_.
At Biscuitfontein, Bethulie, I had killed and murdered two natives on
the 14th of August, 1901.
This was the last and principal charge brought against me. Four blacks
were the chief witnesses in this case, by which, if possible, I was to
be convicted and silenced for ever.
Let us see how they fared. The first one succeeded in identifying me.
The next one was less successful. He pointed to an English officer,
saying, "That is the man." He was to have another chance. I looked at
him and smiled; this puzzled him even more. Greatly perplexed, he
pressed his finger against a man with a long bushy beard, and said, "You
are Kritzinger." What a blunder! The prosecutor seemed slightly put out;
the court indulged in lusty laughter.
The other witnesses were then brought forward. Surely these will not
make a mistake, they know the murderer only too well. Had the prosecutor
not sounded them beforehand by asking them to point out the prisoner's
photo among a number of other photos? Did they not hit upon the right
photo? Is this not conclusive evidence that they must have seen and
known the prisoner? In spite of all this precaution, the first witness
in this case declared, on being cross-questioned _re_ the photo in
question, that a certain officer had shown him the photo at Norval's
Pont, and asked him to note it carefully, so that, if called upon, he
would be able to identify the person concerned!
I watched the prosecutor, who exhibited signs of uneasiness or disgust.
This stupid native was spoiling his good case; the other witness was
going to commit as great a blunder. He declared that on the 10th of
January he saw the corpses of two natives, and, on seeing them,
immediately recognized the one as being the body of his brother-in-law.
Questioned as to how he could still recognize his brother-in-law in a
decomposed body, he promptly replied, "Oh! my brother had still a smile
on his face!" Although the native in question was shot on the 14th of
August, 1901, on the 10th of January he still had a smile on his face!
Death must have conferred a great boon upon him. And if he could have
appeared in court, he certainly would have objected to my being tried.
Have not sentences of death, confiscation of property, and imprisonment
been passed on the evidences of such witnesses?
When all the evidences had been taken the prosecutor delivered his
address. After him the counsel for the defence addressed the court. In a
very able speech Advocate Gardiner pointed out the shallowness of the
accusations against me. He urged that the court should not be long in
coming to a decision, as a prolonged trial meant increased expenses for
the accused.
After his address I was removed for half an hour. Summoned back, a
verdict of "not guilty" was brought in. I was at last acquitted, and
could return to my lonely chamber not as a criminal, but as a
prisoner-of-war!
Leaving the court-room I was called back to shake hands with the judges,
who congratulated me with the acquittal. Thus the trial, which lasted
five days, came to an end. The clouds cleared up. The sun rose. It was
all brightness. I had passed unscathed through the ordeal, to indulge
that night in slumbers calm and sweet.
Just a few days before the trial commenced I was somewhat reassured and
encouraged to hope for the best. An unknown friend kindly dropped a
newspaper cutting, tied to a piece of stone, over the prison yard. This
press-cutting fell into my hands, and in it I saw that a large section
of the British public strongly disapproved of the action of the
Military Government _re_ late Commandant Scheepers, and that section and
people all over the continent and in the United States of America were
asking, "What about Kritzinger--will he too be shot?" I noticed also
that petitions on my behalf were being drawn up in England and
elsewhere, and signed extensively.
All the men and women who so petitioned His Majesty the King to spare my
life I thank most sincerely, for the interest shown in my case, and for
the efforts put forth to save my life. How much I owe such I do not
fully know; but I do appreciate the deed of kindness shown to me in the
darkest moments of my life. Such deeds are never forgotten. They
illuminate life's way with such splendour as fills the soul with
inexpressible gratitude.
I have related the story of my trial briefly and as accurately as I
could. I do not wish to comment on the justice or injustice of the
proceedings. It is for others to judge whether an officer, who was a
burgher of the Orange Free State, and _not_ a rebel, should have been
court-martialled, and while the war was still in progress, on such
unfounded charges. I shall not say whether I consider it just and fair
that, tried as a prisoner-of-war and acquitted as such, I should have
had to pay a bill of £226 for my defence. What if a prisoner does not
possess the means to secure legal defence? Must he then be condemned
without it? Has this not been done in certain cases? I shall ask no more
questions. I did not mind the money, but was only too glad to inhale
once more air not pregnant with death and destruction.
Our object in mentioning these details is to illustrate the nature of
some of the charges brought against Boer officers and burghers when
court-martialled by the British. These charges of murder were, as a
rule, associated with Kaffirs who had been shot, either in fair fight or
as spies. Our officers were held responsible for the acts of their men.
Moreover, by proclamation, any officer or burgher convicted of shooting
a Kaffir or Hottentot, after having surrendered, could be charged with
murder and condemned to death. The principle laid down in this
proclamation, that the life of a surrendered foe should not be taken,
must be endorsed by every right-minded man. The burghers, however,
argued that, since the war had not been declared against the coloured
races, they had the right to deal with armed natives in the most
effectual manner possible, especially if these natives were not British
subjects, but belonged to the Republics. Besides, some of these natives
gave no quarter to our men. We could cite several instances where
burghers had been murdered and mutilated in a ghastly manner. To mention
one instance, while peace negotiations were going on, 56 men were
savagely cut up and mutilated by the Kaffirs in the district of Vryheid,
Transvaal.
Eventually we were placed in such a position that we hardly knew what to
do with armed natives. What if they refuse to surrender? Shoot them ...
and then you are a murderer. Let them go ... and then you will pay the
penalty. It was perplexing to know how the British wished us to act. The
Boers, regardless of consequences, did what they thought right.
For the sake of such as were interested in my trial, I submit in full
the charges, my evidence, and the addresses of the prosecutor and
counsel for the defence:--
_Charge Sheet_.
The prisoner, Pieter Hendrik Kritzinger, a burgher of the late
Orange Free State, and ex-Assistant Chief Commandant of the
(so-called) Federal forces, is charged with:--
1st Charge:--
_Murder_.
In that he, at Grootplaats, Murraysburg, on or about the 15th of
February, 1901, killed and murdered Jafta and Solomon, natives,
British subjects.
2nd Charge:--
_Murder_.
In that he, at Tweefontein, Graaff Reinet, on or about the 15th of
February, 1901, killed and murdered John Thomas, a native, a
British subject.
3rd Charge:--
_Murder_.
In that he, at Prinsfontein, Tarkastad, on or about the 18th of
March, 1901, killed and murdered a native, a British subject.
4th Charge:--
_Murder_.
In that he, at Biscuitfontein, Bethulie, Orange River Colony, on or
about the 15th of August, 1901, killed and murdered Koos and
Willem, natives, British subjects.
5th Charge:--
_Destroying Railways_.
In that he, near Knutsford, Cradock, on or about the 27th of July,
1901, cut the railway line, thereby causing a portion of a
passenger train to be derailed.
To be tried by Military Court by order of General French.
The prisoner takes his stand at the place from which other
witnesses give their evidence:--
The prisoner, Pieter Hendrik Kritzinger, being duly sworn,
states:--
"My name is Pieter Hendrik Kritzinger. In the commencement of
September, 1900, I became a commandant of the Free State Forces. I
became Chief Commandant of the forces in the Cape Colony on the
11th of June, 1901. This would not give me a higher position in the
event of my returning to the Free State. Once over the border I
would hold the same position as any other commandant. I surrendered
on the 16th of December last. I attempted to cross the line at
Hanover Road and was wounded.
I know absolutely nothing of the death of Jafta and Solomon, I gave
no orders that they should be shot, nor any other natives. I
arrived at Voetpad on a Thursday, the 14th of February, 1901. I
camped there until the following day. Shortly before I left Voetpad
Captain Smit with his men came there from a farm in the vicinity.
The name of the farm is unknown to me. Captain Smit was not under
my command. He was acting independently. An advance guard is
generally sent out. On this occasion I sent Wessels and some men. I
do not know when Wessels left, I cannot remember. I went from
Voetpad to Poortje, the farm of Van der Merwe. I arrived there
about sundown on Friday the 15th. On my way from Voetpad I passed
over Boltman's place. I did not hear of any natives being shot
there. While on Voetpad I had no message from Wessels. I cannot
remember having spoken to any one in that strain regarding
Boltman's statements _re_ shooting natives. There was one Mijnhardt
in my commando, there were others amongst Smit's men, but I can't
call to mind of a Corporal Mijnhardt in my commando. No report was
ever made to me of natives being shot at Grootplaats.
2nd Charge:--
On the 15th of February, 1901, I went to Poortje. I camped there
for the night. On the 16th I went to Driefontein, the farm of du
Toit. That was Saturday. From there I went on Sunday to the farm
Tweefontein, Minnaar's. I have not had a man named Van Aswegen with
me at Minnaar's. I know a Van Aswegen; he is a sergeant in Smit's
commando. He was not at Minnaar's when I got there. I do not know
where he was. On the 12th of February, 1901, I saw Van Aswegen on a
farm, the name of which is unknown to me. The owner's name is
Burger. There Smit and his men left me. I next saw Van Aswegen on a
farm in the Richmond district, the owner of which is Meiring. I
stopped at Minnaar's for the day, held service, and left there in
the afternoon. I know nothing of the shooting of a native there. No
shooting of a native was reported to me. Van Aswegen certainly had
no orders from me. He was not under my control, he was under the
control of Smit. Nobody belonging to my commando had any orders
from me with reference to shooting natives.
3rd Charge:--
The Court does not think it necessary to take the prisoner's
evidence on this charge.
4th Charge:--
I crossed the Orange River into the Orange River Colony on or about
the 15th of August last. It is brought back to my memory inasmuch
as Commandant Cachet was killed on the 15th of August in the
district of Venterstad in the Cape Colony. I did not take any
natives prisoner prior to crossing the river. Commandant Wessels
was with me before I got to the river, about five or six miles from
the river he left me and crossed. I crossed the Orange River on the
Bethulie side. Wessels crossed the river on the Norval's Pont side.
I did not see him cross the river. After crossing I went to the
first farm. No one was at home there, and I off-saddled. The name
of the farm is unknown to me. It was a farm that had been burnt.
When I arrived at that farm there was no other commando there.
Before I crossed the river I heard rifle-fire, but after I had
off-saddled for a little while I heard cannon-fire. The firing came
from the west, from the direction which Wessels had crossed the
river. The cannon-firing also came from the same direction.
I mounted a horse and rode up a kopje to see if I could see
anything that might be taking place. The kopje was about 1,000 to
1,200 yards from my laager. I was riding a chestnut horse. I went
to the kopje alone, but a man by the name of Michael Coetzee, whom
I intend to call as a witness, was on the kopje on duty as a
sentinel. I remained there a considerable time. I saw cannon-firing
on a little ridge on the Colony side of the river. I heard
rifle-fire while I was on the kopje. I returned to the laager. The
firing was in the direction of the laager. When I got back to the
laager Commandant Wessels was there, off-saddled. After I arrived
at the camp I spoke to him about the firing I had heard. I knew
that some of the farmer's cattle were being brought in for the
purpose of slaughtering, and I asked Wessels why they fired so many
shots at the animals, and he replied that a couple of Kaffirs had
been shot. I was chaffing Wessels when I asked him why they fired
so many shots at the animals. When I was on the kopje I certainly
did not know that Wessels had taken natives prisoner. I did not see
these natives after they had been shot. I do not know the boy Jan
Louw. I did not speak to him that day, nor to any other native. The
Wessels in question is the Commandant Louis Wessels, who passed
into the Colony from the Orange River Colony, and I met him three
or four days before I crossed. The day after our meeting we had a
skirmish with the British. Wessels and I got separated. The
following day we met again on the farm of Van der Keever. He was
not under my command in the Colony, nor in the Orange River Colony.
I had about between seventy and eighty men when I crossed the
river, and Wessels had between thirty and forty men. I had a few
natives shot in the Orange River Colony prior to my crossing into
the Colony in the first instance. These were tried by Captain
Scheepers, Captain Fouché, and Captain Smit and myself, also Judge
Hugo. The papers were sent to Assistant Chief Commandant Fourie,
and the sentences were approved of by him. That was the only case
of natives having been shot by me.
_Prosecutor's Address._
(Captain L. Daine.)
"As regards the first charge, the natives Jafta and Solomon and the
scouts McCabe and Maasdorp were captured by Wessels, who was in
charge of Kritzinger's scouts. He took them to Grootplaats. McCabe
proves that Wessels then went towards Voetpad, three miles off, and
returned some time afterwards, gave an order to his men, and the
two natives were led off to execution. Boltman's statements that
Kritzinger gave a message for British column commanders, informing
them that armed natives would be shot, are fully corroborated by
what McCabe was told by members of Kritzinger's commando, and
clearly shows Kritzinger's intentions and instructions. Kritzinger
states that he cannot remember whether he gave the message or not.
"The witnesses for the defence all state that there were no
prisoners with the commando at Grootplaats, yet the accuracy with
which they describe different horses, and the date of seeing Van
Aswegen, _i.e._, 13th February, 1901, is little short of
marvellous. Kritzinger states that he mounted a horse and rode to
the kopje, which was about 1,000 to 1,200 yards from the laager,
and that he was riding a chestnut horse, while the witnesses for
the defence state that he was riding a dark bay horse with a star
when he rode to the kopje.
"As regards the natives mentioned in the first charge, McCabe
states that he did not lose sight of them all the time they were
together, and as they were not searched in his presence the passes
could therefore not have been found. They were captured on a farm
in British territory.
"As regards the second charge, Van Aswegen was evidently a member
of Kritzinger's commando, and the witness, Van der Merwe, remembers
seeing him with the commando for three weeks, during which time he
and his men were frequently away. Here again, as concerns spies,
Van Aswegen had the passes in his hand and knew what the boy really
was.
"As regards the fourth charge, the natives were captured in the
Cape Colony, where Kritzinger was Chief Commandant. The statement
that his authority as such ceased the moment he crossed the Orange
River is hardly credible. The natives were shot at Biscuitfontein,
where Kritzinger was laagered at the time, and their dead bodies
were seen by de Klerk there. Jan Louw is very clear as to who the
commandant was. He recognized his photo on two occasions, and
identified him at once in court. The dark brown horse ridden by
Kritzinger to the kopje is probably the black referred to, and his
evidence is corroborated by Jan Jonkers, who, however, failed to
recognize Kritzinger in court, more through fright than anything
else, I think. Both these witnesses state that there was a body of
men at Biscuitfontein when they arrived. This is denied by
witnesses for the defence. The bodies found by Jan Hans must have
been those of Koos and Willem, as the spot is identified as that
described by de Klerk.
"It must be remembered that the witnesses Hugo, Matthijsen, Van
Wijk and de Klerk are all accomplices, and therefore their evidence
must be received with caution, especially after the curiously
minute details they give on some points. It is also worthy of note
that Matthijsen was not examined on the fourth charge, though he
was present with Kritzinger at the time.
"The shooting of these prisoners was absolutely unjustifiable and
illegal, and all concerned must be held equally responsible.
"Wessels took over the command of Kritzinger's commando when the
latter was wounded.
"As regards the proclamation, the only name mentioned in it is that
of Kritzinger, and the proclamation is signed by him. The names of
any of the other commandants are not mentioned in it at all.
"As regards the witnesses for the prosecution, there are three who
have been deported, and therefore could not be obtained."
_Address by the Counsel for the Defence._
(Advocate H.G. Gardiner.)
"Mr. President and Members of the Military Court:--
"We are now reaching the end of a great trial, the great trial of a
great man. Of all the trials that have been held before Military
Courts in this country, this, I may fairly say, is most important.
"No officer of higher or even equal rank to him, who was once Chief
Commandant in this Colony, has yet been tried, and on this trial
much will depend. It is a case the result of which may have great
and far-reaching influence. It may influence greatly the Boer
commandoes in the field. On the verdict now given in his case the
attitude of other leaders will greatly depend. I do not urge this
upon you that you should acquit the prisoner. I do not ask you to
consider the consequences of the verdict you may bring in. I know
that you will bring in whatever verdict you think right regardless
of all consequences, but I do bring these facts before you as a
reason why you should carefully consider the evidence.
"The charge in this case is the charge of murder, the greatest
crime that can be brought against a man. It is a crime of which a
man cannot be technically guilty. You must have the most convincing
evidence before you, and the clearest proof. It is a crime where
intent must be clearly proved; where intent is essential. A
merchant whose agent enters into a contract may be held responsible
to carry out that contract, but a merchant whose clerk commits a
crime cannot be held responsible for that crime. It would, sir, be
intolerable if a leader of a column should be held responsible for
every act committed by the men under his command. We are glad to
know, sir, that in the history of this war British troops have
behaved in an exemplary manner, but there have been occasions when
they have done things not in accordance with the laws and usages of
war, and it would be unfair to hold a general responsible for such
acts of isolated individuals. On the question of intent and what
constitutes responsibility for a crime, I would refer to _Manual of
Military Law_, pages 112 and 113, paragraph 17:--'If the offence
charged involves some special intent, it must be shown that the
assistant was cognizant of the intention of the person whom he
assisted; thus, on a charge of wounding with intent to murder, it
must be shown that the assistant not only assisted the principal
offender in what he did, but also knew what his intention was,
before the former can be convicted on the full charge.' Then again,
paragraph 18. After referring to persons going out with common
intent it says that a person is not responsible for any offence
'committed by any member of the party, which is unconnected with a
common purpose, unless he personally instigates or assists in its
commission.' And to give an example, sir, of common intent, the
purpose for which a commander and his men go on commando is to kill
and destroy the enemy, not that of killing prisoners and
non-combatants, or prisoners without a trial, and if a subordinate
without orders from his superior commits a crime, that superior
cannot be held responsible for it unless he has consented to it or
knew of it. I would also refer to paragraph 20:--'Mere knowledge
that a person is about to commit an offence, and even conduct
influenced by such knowledge, will not make a person responsible
for that offence, unless he does something actively to encourage
its commission.' And last of all I would refer to Army Act, section
6, page 322:--'Every person subject to Military Law who commits any
of the following offences, that is to say (_f_):--Does violence to
any person bringing provisions or supplies to the forces, or
commits any offence against the property of persons or any
inhabitant or resident in the country in which he is serving,' but
says nothing about the responsibility of a superior officer.
"We may take it therefore that Kritzinger can only be responsible
for a murder when he has given either general or special orders, or
when he knew of it beforehand, and consented to its being done.
Now, sir, what proof have we of that being so in this case?
"Let us take the first charge--the charge of shooting two natives
at Grootplaats. There can be no doubt that these natives were
spies. They came into the Boer lines unarmed, ununiformed, and with
false passes. They carried two passes, one representing them as
belonging to the 7th Dragoon Guards, and the other to the effect
that they were looking for cattle. I think if such a case came
before you, you would have no doubts about treating them as spies.
Therefore Kritzinger would not have been guilty of murder had he
shot them. I have a far stronger defence, however. The natives were
captured by Wessels. Kritzinger knew nothing about them, and when
these boys were shot he was not present, as he was at another farm
at the time. Wessels left at 10 A.M., Kritzinger arrived there
after sunset. How can he then be responsible for the shooting of
these natives when he was not at the farm? There is not a bit of
proof to show that Kritzinger gave the order about the shooting of
these boys. One of the native witnesses says that one of Wessels'
men went in the direction of Voetpad; there is no evidence that he
ever reached there. More than that, witnesses belonging to
Kritzinger's commando state that they saw nothing of Wessels, and
that they knew nothing of the shooting of these boys. At the close
of the evidence in chief there was something which looked like
implicating Kritzinger, but of that by Van Aswegen there is very
little left to-day. At first the evidence _re_ Mijnhardt was taken,
but the Court has ruled that this evidence cannot be accepted. Now
there is the evidence of Boltman. I do not say that Boltman did not
give his evidence fairly, but he must have made a mistake as
regards Kritzinger making use of the words he referred to. McCabe
says while he was on the farm nothing of the kind occurred. If
anything had been said he would have heard it. When McCabe and
Maasdorp came back no report was made that Kritzinger had said
anything of the kind. But there was a report made, and McCabe bears
it out that something was said by another member of the commando. I
would submit that Boltman mistook the other member of the commando
for Kritzinger. There is no getting over the evidence of McCabe,
and he is the person who ought to remember it. As McCabe says,
Kritzinger did not arrive until some hours after the boys had been
shot.
"I now come to the second charge--the charge of the shooting of the
boy John Thomas at Tweefontein. Now, sir, here again the boy was
clearly a spy. He carried two passes similar to those carried by
the boys mentioned in the first charge. He was unarmed. He was not
in uniform. He was there to spy the movements of the Boers.
Kritzinger would not have been responsible for the shooting of this
boy had he shot him. But here the evidence against him is even
weaker than in the first charge. Here there is no suggestion that
the boy was shot by any of Kritzinger's men. The evidence shows
that the boy was shot by a man serving under Smit. Smit was an
officer with an independent command, and, more than that, he had
been longer in service than Kritzinger himself, and was not under
Kritzinger. Here, too, there is no suggestion, as in the first
charge, that any message was taken to Kritzinger by the men who
shot this boy, John Thomas. None of Van Aswegen's men were sent to
Kritzinger. Van Aswegen himself did not go back. No one from
Kritzinger came to Van Aswegen. Van Aswegen was last seen by
Kritzinger on the 12th or 13th of February, 1901, and was not seen
again by him until a couple of days after the shooting.
"That the boy was shot by Van Aswegen appears clear from the two
Minnaars' evidence, who say that the boy was taken out by Van
Aswegen, and that was the last they saw of him. Kritzinger did not
arrive until Sunday morning with his commando, and everyone says he
knows absolutely nothing about the shooting of the native. I would
submit that there is absolutely nothing to connect Kritzinger with
the shooting of this boy.
"On the 3rd Charge there is no need to say anything. The Court has
already indicated that it is unnecessary to proceed further with
it.
"I now come to the 4th Charge; the only charge in which Kritzinger
was said to have been present at the shooting. In the first two
charges, Kritzinger did not appear until hours after the natives
had been shot. The only witnesses who say that Kritzinger was
present at the shooting of the natives mentioned in this charge are
natives. There appear to have been no white men present. Some one
said that Schmidt was present, but it appears he did not cross the
river. We have only native evidence to this effect, and native
evidence is most unreliable, and only one of the witnesses could
identify Kritzinger. We are, therefore, driven back to the evidence
of Jan Louw. Even if Jan Louw had given his evidence in a way that
could not be shaken, it would be dangerous to convict on the
evidence of one witness alone. Natives have no idea of dates, time,
or distances. They find it difficult to identify prisoners. We have
seen that in the case of Jan Jonkers, and that shows how much
reliance can be placed on native evidence. Jan Jonkers identifies a
man in Court as being Kritzinger who was never near the place. Four
months after a man has been killed Jan Hans goes and sees his body.
He identifies him not by the clothes he wears but by his face. Is
it possible that after being for four months on the plains of the
Orange Free State, exposed to the air and the heat, a man could
identify the face of another? And the one native witness is the
witness Jan Louw. Even if Jan Louw were a strong witness, his
evidence would not have been sufficient to convict, but Jan Louw's
evidence falls to the ground under cross-examination. How did Jan
Louw identify Kritzinger? He was taken to the office at Norval's
Pont. Now, Jan Louw had only seen one commandant in his life. When
in that commandant's possession, his life was apparently not worth
very much. His companions were shot. When shown any commandant's
photo he would naturally identify it with the commandant he knew.
Now, Jan Jonkers explains to us why the photo was identified. He
was asked, 'Is that Kritzinger?' and he replied, 'That is
Kritzinger.' Now, a native is very likely, in a case like that, to
say, 'That is the man.' Then Jan Jonkers, in re-examination, tries
to get out of that. He says that he said, 'That is Kritzinger,' and
then the man in the office said, 'That is Kritzinger.' The
probability is that Jan Louw and Jan Jonkers were asked if it was
Kritzinger's photo, and they said, 'Yes.' If the Court saw the
photos they could see how much reliance could be placed on the
identification. The witnesses were taken into a room where there
were several groups of photos, but the biggest photo was that of
Kritzinger, and these natives had seen it before. Probably it is
the only photo they have seen in their lives. It was the same photo
they had seen at Norval's Pont. What would one expect? One would
naturally expect them to pick out that photo, and that is what
occurred. Well, after that, one can understand why Jan Louw
identifies Kritzinger in Court. He has had a photo shown to him in
town, and of course he naturally identifies Kritzinger at once. The
wonder is that Jan Jonkers did not identify Kritzinger. It only
shows what small reliance can be placed on the evidence of natives,
and that is the sole evidence on which the 4th Charge is based.
"Now let us see what Kritzinger's story is. It is a consistent
story, and it seems what probably happened under the circumstances.
He crossed without prisoners, and everyone in his commando bears
him out. He crossed before Wessels, and laagered there, and
afterwards Wessels came up. Jan Louw says that no other commando
was there when he arrived, and no other came afterwards. Jan
Jonkers says there were about one hundred men when he arrived. The
Court will have no doubt that there were two commandoes there.
Kritzinger said that he had seventy or eighty men with him. And
then again we have Jan Jonkers. If Jan Jonkers found a commando
there, all the evidence goes to show that Jan Jonkers must have
been with Wessels, and not with Kritzinger. Wessels captured these
men, and therefore must have done the shooting.
"Then there is the question of identifying a horse. Both natives
say it was a black horse, and the other evidence shows it was a
chestnut horse. It may appear strange that our men remember the
horses, but I would certainly trust any Boer, who has to deal with
horses all his life, rather than a native. Then Kritzinger says he
left the commando and went up to the kopje. Wessels had not arrived
yet, and that, sir, is borne out by every one of Kritzinger's
witnesses; and, as he says, and all the witnesses say, it was in
Kritzinger's absence that Wessels arrived and the shooting was
done. Kritzinger says he heard the shots and chaffed Wessels about
an ox he supposed they were shooting. But whatever was done in
Kritzinger's absence was done entirely without Kritzinger's
knowledge, and, sir, by men who belonged to Wessels, because
whoever did the shooting it was done by men belonging to the
commando who took these natives prisoners. Now, sir, it is
unfortunate that the witness who was with Kritzinger on the kopje,
and who could also have heard the shots, is not here. I know it is
not the fault of the Court that he is not here. It is unfortunate,
though, that this man is in St. Helena. But Kritzinger is already
corroborated by his other witnesses, and against them is only a
single native witness. There is, of course, this story of a
conversation between Kritzinger and the boy Jan Louw. Kritzinger is
supposed to have said to the boy: 'Did you see those boys? They are
to be shot. Put down your billies, and go and be shot also,' and
then at once to have changed his mind: 'Never mind, my boy, get the
water.' It is an improbable story. Jan Jonkers does not appear to
have heard the conversation at all. None of Kritzinger's men appear
to know of it, and I submit it was not said by Kritzinger, if said
at all. Then on the prosecution's side one native witness is
contradicted by all the other witnesses.
"Before I close the case for the defence, I would like to refer to
the character of the prisoner. In this case I am well aware that
character is not a ground of acquittal. I know, sir, that good men
of excellent characters have committed crimes, and I would not for
one moment appeal for an acquittal because Kritzinger has behaved
so well in other instances, and has shown himself a humane man, and
a man of honour. I do not ask for mercy on the ground of
Kritzinger's character, we can only ask for a fair and just
verdict. But character is of importance when there is any doubt in
the case. I ask the Court to bear in mind the character of the
accused. Is a man who bears such a character likely to have
committed the crimes charged against him? The character of
Kritzinger, if we put aside the charges in his case, is an
excellent one. The prosecution has brought out in cross-examination
a certain proclamation. I am glad it has been brought out, for it
goes to show nothing against the character of the accused, but it
tells in his favour, for, what do we find? That a draft
proclamation was drawn up at a meeting of commandants, at which
Kritzinger was chairman. He opposed it by every means in his power,
but he was in the minority, and, as president of the gathering, he
had to sign it. He then asked for some postponement before that
proclamation was circulated, and that was agreed to. He still
fought against this proclamation, for he asked that before De Wet
approved of it nothing should be done in the way of circulation. He
never circulated it himself. If it was circulated, it was done by
the other commandants against the agreement. It was not approved of
by De Wet, and never became a proclamation. This shows that
Kritzinger disapproved of the harsh measures contained in it, that
he tried to get it done away with, and that at last he succeeded in
getting a refusal from the Chief Commandant of the Free State. It
was owing to his efforts that the proclamation did not become a
valid one in this Colony, and he cannot be responsible for anything
that may have been done against the agreement arrived at by those
at the meeting.
"As regards his treatment of natives, he tells you himself that he
never had natives shot, except those boys who were duly tried, and
whose sentences were duly confirmed, and that will tell in his
favour.
"As regards his attitude _re_ the destruction of property, we have
the letter to Scheepers, and the Court will bear that in mind in
deciding whether he has been guilty of these acts of inhumanity
charged against him or not.
"His character has been excellent. Coming back into danger again in
order to secure a remount for one of his men whose horse had been
shot, he was himself wounded, and ultimately captured. His conduct
on that occasion was that of a brave man, as it has been all
through the war. If there is a question of doubt I ask the Court to
bear in mind the character of the prisoner. All the evidence is
riddled with doubt, and you have to weigh this, sir. On the one
hand the native was shot in Kritzinger's absence. There is no proof
that it was done by his order, or with his consent. The evidence of
the natives in the 4th Charge is of the weakest description.
Against that you have his excellent character, and the story
corroborated by his own witnesses and corroborated in some respects
by the witnesses for the prosecution. I ask you, sir, to weigh that
evidence in the balance, and see which side is found wanting.
"Just a word more, and I have done. I know there are some people
who say it is unfair to try a man by a Court composed of men who
have been fighting against him. Sir, I have no such fear. I know,
sir, I feel sure that there is not an officer in South Africa who
would not gladly acquit the prisoner of the crimes laid to his
charge if he felt he could conscientiously do so. I therefore leave
in your hands the fate of a man whose bravery has been shown on
many occasions, in many a hard fight, whose honesty and humanity
have been, in many instances, conspicuous. More than that, sir,
should he be acquitted, when this war is over, he will, I feel
sure, be able and ready to do much to restore the good feeling
which we all hope will prevail between English and Dutch, I leave
his fate in your hands with the conviction that you will bring in
the only verdict warranted by the evidence, a verdict of 'Not
guilty.'"
This address gives you, reader, the gist of my trial. If you have had
the patience to read through it you will be able to have a fair
conception of what we had to pass through in the early days of March,
1902.