been taken, were not called at the preparatory examination. It was
consequently felt that the Crown was in possession of information,
possibly of vital importance, which was being withheld, with the object
of in some way injuring the prisoner. This is seen at once, by anyone
acquainted with criminal procedure, to be futile if not frivolous,
because, under the Ordinance of 1845, under which the preparatory
examination was held, the greatest latitude is given to the Crown,
particularly where crimes are only _supposed_ to have been committed.
It must be remembered that, although there was reason for believing
that Dinuzulu had committed two, three or more specific acts of high
treason, there was also ground for supposing that a number of other
similar offences had been committed. Such inference, to anyone who
has read the foregoing pages, especially those describing the state
of affairs at Usutu, is a perfectly legitimate one, especially as
Dinuzulu was known to have been surreptitiously communicating with the
Chiefs of various other tribes throughout Natal and Zululand ever
since the proclamation of the Poll Tax Act in 1905. Nothing, then, was
more imperative from the point of view of the Crown, than not only to
confine attention to such overt acts as had already come to notice, but
to make special, persevering, and exhaustive efforts to probe to the
bottom Dinuzulu's conduct throughout the whole period of unrest. The
Attorney-General and the Justice of the Peace, and all those working
under these officers, were within their rights in doing what they did,
as reference to the Ordinance would show. Indeed, when one comes to go
into this side of the case, he cannot but wonder that the prosecution
was, in some respects, as lenient and considerate as it was.
The appointment of a special officer to hold the inquiry was necessary,
as, for political reasons, it was desirable to remove the prisoner from
the district in which the various alleged offences had been committed
to another. The case, being an extraordinary one, of far greater
gravity than the one that occurred in 1888, it is not surprising
the Government did not foresee that the various difficulties above
referred to were likely to arise. Nor, for the same reason, could they
anticipate, except in a vague way, the profound effect that would be
created by Dinuzulu on Native witnesses of Zululand and Natal, even
when he was in custody.[333] In attempting resolutely, though not
illegally, to secure all rights and privileges, the impression was
given to the Defence that the endeavours of the Crown were dictated
more by bias and prejudice, than by a desire to ensure justice being
done. As the Crown was so active, and quite properly so, it is not to
be surprised at that the Defence displayed a like degree of energy.
Ever since the arrest, it was the intention of the Government that
the Zulu Chief should be tried by a civil tribunal. It would,
indeed, have been possible to have arraigned him before a general
or special court-martial. Such procedure, however, was not at any
time contemplated. In view of the great length of the case, it was
impossible to bring it before the Supreme Court, firstly, because
that court had quite as much work to do as it could manage, secondly,
because, under the law constituting it, it would have been necessary
to empanel a jury, and, with a jury of Europeans in a purely Native
case and one which had already excited so much animus against Dinuzulu,
the prisoner might have incurred serious risk. Instances had already
occurred in preceding years of miscarriages of justice, just as they
have arisen in other parts of South Africa, owing to jurymen allowing
their feelings to get the better of them. In these circumstances, it
was decided to create a new court consisting of three judges, similar
to the one which, in 1888, tried the same man and his uncles--a court
which, as far as could be seen, gave every satisfaction both to the
Crown and to the defence.
The Bill creating this court[334] was brought before Parliament in
July, _i.e._ shortly before the conclusion of Dinuzulu's examination.
It became law[335] on the 15th August. The judges appointed were:
Sir William Smith, Kt., Puisne Judge, Transvaal Supreme Court; Henri
G. Boshoff, Puisne Judge, Native High Court, Natal; and Henrique C.
Shepstone, C.M.G., ex-Secretary for Native Affairs, Natal.
It may not be out of place here to call attention to machinery in
another part of the Empire provided to meet contingencies similar in
some respects to those which confronted Natal in 1907. It is common
knowledge that political offences occur from time to time within the
Indian Empire. Only a few months ago, the world was startled to hear
of a bomb being thrown at His Majesty's representative, with severe
bodily injury to himself and fatal results to one of his attendants. In
regard to such crimes, delay of a year in bringing the accused to trial
could not occur. The procedure is governed by Act of India, No. 14,
1908, which provides for the Magistrate who has taken cognizance of the
offence, or any other Magistrate to whom the case may be transferred,
holding an inquiry on receipt of an order in writing to that effect
from the Governor-General-in-Council or the Local Government. Such
inquiry is for the object of seeing if "the evidence offered upon the
part of the prosecution is sufficient to put the accused upon his
trial" for the offence, and the Magistrate "shall, for that purpose,
record on oath the evidence of all such persons as may be produced
in support of the prosecution, and may record any statement of the
accused, if voluntarily tendered by him." The Act goes on to provide
that "_the accused shall not be present during the inquiry ... unless
the magistrate so directs, nor shall he be represented by a pleader
during any such inquiry, nor shall any person have any right of access
to the court of the magistrate while he is holding such inquiry_." If
the Magistrate is satisfied that there is sufficient evidence to put
accused upon his trial for the offence specified, he frames a charge,
makes an order directing the latter to be sent to the High Court for
trial, and causes him to be supplied with a copy of the order, of the
charge, and of the evidence taken. The Magistrate, moreover, has the
power of examining supplementary witnesses after the order for trial,
and before the commencement thereof.
Thus, we see, the Indian legislation governs, not only the trial, but
the whole of the preliminary examination, and accords the Crown far
greater facilities than were enjoyed by the Attorney-General in Natal
under the Ordinance. Provision, such as this, would go a long way
towards removing the various obstacles encountered by the Crown in
the Dinuzulu affair. Under the Indian law, no martial law is required
to exclude the accused or his lawyer from being present during the
inquiry.[336] There is not a word in the Indian Act about the existence
of martial law, and yet the procedure provided is of a far more rigid,
exclusive and seemingly unjust character than what counsel for the
defence took exception to in Natal. The Indian Act further stipulates
that all persons sent for trial shall be tried by a special bench of
the High Court, consisting of three judges, and that "no trial before
the special bench shall be by jury."
The Indian Court, although a special one, is always composed of judges
of the High Court, and, therefore, prepared to come automatically into
existence as soon as the occasion arises. In the case of the Natal
Act, the court ceased to exist when the objects for which it had been
appointed had been served, consequently, should similar offences arise
in the future, a fresh Act would be required.
It would seem, then, that the Union Government would be well-advised
to pass an Act similar in principle to the one above referred to. By
so doing, the disagreeable position Natal found herself in during
the trial of Dinuzulu would be largely mitigated by eliminating, _ab
initio_, elements of discord and all appearance of injustice.
* * * * *
An Act indemnifying all authorities and persons acting under them, in
regard to acts during the existence of martial law, similar to that of
1906, was passed by the Legislature and assented to by the Governor
in August, immediately after which martial law was revoked (11th). A
decision was come to at the same time to appoint Mr. R.H. Addison,
acting Magistrate at Nongoma, Chief over the Usutu (Zulu) tribe, until
the result of Dinuzulu's trial had been made known. "The appointment
of a European Magistrate as Chief over a Native tribe, though not
frequent, is occasionally resorted to as a temporary measure when, in
circumstances like the present, it is considered desirable to keep in
close communication with the tribe, and there is no Native headman
through whom this can satisfactorily be done."[337]
After Dinuzulu's counsel had collected all the evidence they were able
and wished to do in Zululand, and their client's case had otherwise
been sufficiently prepared, arrangements were made for the Special
Court to begin its session at Greytown, viz. on the 3rd November.
The Town Hall was suitably fitted up for the purpose. The venue was
appropriate, seeing it was in the district in which the Rebellion
had started. Besides Dinuzulu, there were five other Natives to be
indicted. A beginning was made with the case of Cakijana, charged
with high treason. After a trial extending over a week, the prisoner
was found guilty and sentenced to seven years' imprisonment with hard
labour. Jombolwana, charged with the murder of Chief Sitshitshili, was
next tried. The sentence of death passed on him was carried out in
December.
The trial of Dinuzulu, the most important event that had ever occurred
in Greytown, began on the 19th of November. The accused had, however,
already pleaded on the 10th to an indictment of high treason,
consisting of twenty-three counts. His plea was 'not guilty' to
each. The Attorney-General (The Hon. T.F. Carter, K.C.) with Messrs.
D. Calder, W.S. Bigby and G.E. Robinson, appeared for the Crown,
whilst the Hon. W.P. Schreiner, K.C., with Messrs. E. Renaud and
R.C.A. Samuelson, were for the defence. Among those specially, though
unofficially, concerned were Misses Harriette E. and Agnes M. Colenso.
Although a large number of European witnesses gave evidence, the case
was purely a Native one. The proceedings were conducted in English and
Zulu, the principal interpreter being Mr. J.W. Cross, J.P., one of the
senior Magistrates of the Colony, and Magistrate at Greytown, as will
be remembered, when the Rebellion broke out.
In view of the large numbers of witnesses required by the prosecution
and the defence, and the long duration of the trial, it became
necessary for separate camps to be erected for them.
At the beginning of the trials, considerable interest was taken in the
proceedings by residents of Greytown and neighbourhood. This, however,
soon began to wear off until Dinuzulu himself gave evidence and, later
on, when counsel for the Crown and for the Defence were addressing.
The Court adjourned on the 22nd December, and resumed on the 4th
January, 1909. The prosecution closed on the 18th. Beginning on the
following day, the defence terminated on the 23rd February. By this
time, the Court had sat sixty-seven days; ninety-five witnesses had
been examined for the Crown, and sixty-eight for the Defence.
Of the witnesses called for the prosecution, forty-seven were Europeans
and forty-eight Natives. Of those for the defence, sixty-four were
Natives, including Dinuzulu (who took no less than ten and a half days
to give his evidence), and four Europeans. The evidence amounted to no
less than 6,148 typed folio pages.
Mr. Carter addressed on the 24th and 25th, and Mr. Schreiner, beginning
on the 25th, concluded on the 2nd March.
Judgment was delivered on the 3rd, that is, on the seventy-third day's
sitting. The prisoner was found guilty of high treason: (_a_) by
harbouring and concealing Bambata's wife and children for over fifteen
months; (_b_) by harbouring and assisting the ringleaders Bambata and
Mangati during the actual progress of the Rebellion; and (_c_) by
harbouring and concealing 125 named and other rebels at various times
between May, 1906 (when the Rebellion was at its height), and the date
of his arrest.
With regard to the most serious count of which he was found not guilty,
one of the judges felt it necessary to say: "The matter has given me a
great deal of concern, and, up to this very morning, the thought has
occurred to me again and again whether it would not be my duty to stand
out from the majority of the Court in the conclusion to which they have
arrived on this point." There "certainly is evidence which makes one
hesitate very much, as far as I am concerned, in giving the prisoner a
clean bill."
[Illustration:
HON. W.P. SCHREINER, MR. E. RENAUD, DINUZULU. MR. R.C. SAMUELSON,
K.C., M.LA., Advocate. Attorney.
Senior Counsel for
the Defence.
MISS H.E. COLENSO.]
The Attorney-General had already withdrawn two counts whilst some
of the others unavoidably overlapped, consequently it was felt
unnecessary to consider them. In respect of one, the Judge President
said as "two of the alleged conspirators are to be tried before this
court ... I think it better that we should give no finding." Dinuzulu,
after admitting a previous conviction for high treason in April, 1889,
(his age then being between twenty-one and twenty-two) was sentenced to
four years' imprisonment in respect of (_b_) and (_c_) "to date from
the 9th day of December, 1907" (_i.e._ the date of his surrender), and
a fine of £100 or twelve months' imprisonment in respect of (_a_), the
"twelve months to be cumulative, not concurrent."
Thus ended a State trial which will long be remembered in South Africa.
Remarkable for its intricacy and duration, it was even more so for the
deep and sustained interest aroused by its various issues among all
sections of the community, in Natal and Zululand, throughout South
Africa, and in England and elsewhere. Although practically the whole
of the evidence for the Crown and the Defence was laid by the press
before the public, attention tended to become more and more focussed on
the judgment of the court, a judgment from which there was no appeal.
And it was generally anticipated and hoped that such judgment would
supply a complete and decisive answer to the question as to the exact
extent to which Dinuzulu was implicated in the Rebellion of 1906. It
is, however, impossible to deny that the judgment, notwithstanding
the honest, persevering and exhaustive efforts of the Bench and the
Bar, failed to carry conviction home to many who, having followed
the proceedings, were at least familiar with the principal features.
Convicted on but three counts (and these not including the most
important) out of twenty-three, Dinuzulu was commonly believed to
have escaped far more lightly than he deserved, or than the evidence
appeared to permit. But, owing to the extreme length and complexity
of the case, people felt they had to be content with the result, as
there was neither opportunity nor inclination to examine the masses of
evidence for themselves in detail.
The result of the conviction, as anticipated by the President when
passing sentence, was that Dinuzulu not only forfeited the position of
Government Induna, but was formally deposed from his chieftainship.
To have left standing the Usutu kraal or the house constructed for him
at Eshowe, would have been but to perpetuate an impression amongst
a credulous people, that a Chief, convicted for the second time
of high treason, was returning to the country. It was because the
Natal Government could not for a moment contemplate such contingency
that the establishments were either removed or dismantled. Other
action, moreover, had to be taken. When the ex-Chief was arrested, as
previously pointed out, headmen were appointed to take charge of the
tribe. The arrangement, however, was purely temporary. But with the
deposition of the Chief, it became necessary to introduce some more
permanent and final arrangement. It was decided to break the tribe
up into three parts, and attach a section to each of three adjoining
tribes. Under the circumstances, the settlement gave satisfaction to
all concerned, and has continued to work well from that day to this.
* * * * *
On the conclusion of the trial, the President of the Court (Sir William
Smith) returned to the Transvaal, his place being taken by Mr. Justice
Dove Wilson of the Natal Supreme Court; Mr. Schreiner, too, went back
to Cape Town. Dinuzulu was removed to Pietermaritzburg.
It is but right here to call attention to the fact that notwithstanding
the consummate ability with which Mr. Schreiner had defended Dinuzulu,
necessitating absence from his practice at Cape Town for a period of
over four months--thereby, no doubt, involving him in considerable
pecuniary loss--the whole of his services in connection with the trial
were given gratis, an act which cannot but redound to his credit,
especially when one considers the inability of the prisoner or his
friends to pay such heavy charges as Mr. Schreiner might very properly
have made.
Instead of Greytown, the venue for the remaining cases became
Pietermaritzburg. Dinuzulu's indunas Mankulumana and Mgwaqo, also
charged with high treason, were tried on the 9th and 10th of March, the
Attorney-General prosecuting and Mr. Renaud appearing on behalf of the
accused. Both were found guilty of three counts in the indictment. The
former was sentenced to nine, and the latter to fifteen, months--in
respect of two counts--whilst both were sentenced to a fine of £50 or
eight months' imprisonment in respect of the third. In passing the
sentences, account was taken of the fact that they had already been
fifteen months in gaol.
As soon as the Union of the South African Colonies became imminent, and
shortly after the conclusion of Dinuzulu's trial, the Natal Ministry
proposed to the future Prime Minister the desirability of removing
Dinuzulu to some suitable part of South Africa, beyond the borders of
Natal. It was recommended that such portion of the sentence as remained
unexpired on the advent of Union should be remitted on condition that
the foregoing settlement was agreed to by the prisoner. The suggestion
at once met with the approval of General Botha. Dinuzulu was thereupon
taken from Pietermaritzburg to Newcastle, so as to be in readiness to
conform to the terms of his proposed release. He, however, was not
made acquainted with the reasons for his removal to Newcastle, except
that that place was regarded as more beneficial for his health than
Pietermaritzburg had appeared to be. Union came into force on the 31st
May, 1910. Towards the end of that month, Mr. J.C. Krogh, one of the
senior Magistrates of the Transvaal and formerly Special Commissioner
in Swaziland, was instructed by General Botha to proceed to Newcastle
and there, assisted by the Magistrate, Mr. B. Colenbrander, interview
Dinuzulu with the object of placing before him, and securing his
acceptance of, the following proposition, which the ex-Chief was told
General Botha was prepared to recommend to the Governor-General:
That he should be released from prison and the remainder of his
sentence remitted on the following conditions:
(_a_) Acceptance of domicile in the Transvaal at a place to be put at
his disposal by the Government.
(_b_) That, as from the date of release, his salary of £500 per annum
be again paid to him during good behaviour.
The result of the interview was that Dinuzulu unreservedly accepted
the conditions, and signed a formal document to that effect. On the
31st, the authority of the Governor-General-in-Council having been
obtained, and with the knowledge of Dinuzulu's friends (Miss Colenso
and the Hon. W.P. Schreiner), Dinuzulu was released and left Newcastle
by the afternoon train for Pretoria. At Pretoria, he came under the
Native Affairs Department of the Union, it being arranged that all
instructions would, in future, be received by him from or through that
Department.
Steps were taken to secure a farm on which he, his family and immediate
dependants could reside, with sufficient ground for agriculture,
grazing, etc. Some difficulty was at first experienced in finding land
suitable for one who, like Dinuzulu, had lived most of his life in the
mild climate of northern Zululand. The farm Rietfontein, seven or eight
miles from Middleburg, was eventually selected. To this he proceeded
early in 1911, accompanied by certain members of his family; his induna
Mankulumana was also permitted to join him.
The release, prior to expiration of the sentence and on the terms above
set forth, was generally approved in Natal, as also throughout South
Africa, and in England.
Almost simultaneously with Dinuzulu's expatriation, those Native
rebels who were still in prison, including the ones at St. Helena,
were released and allowed to return to their districts, except such
ex-Chiefs as Ndhlovu and Meseni, who were obliged to take up their
residence in districts other than their own.
FOOTNOTES:
[Footnote 331: Ten days after Dinuzulu's arrest, Mr. E.G. Jellicoe,
K.C., an English barrister, was selected to assist Mr. Renaud in the
defence. He arrived in Pietermaritzburg on the 19th January, attended
the examination on two or three occasions, after which, because unable
to make the Government conform to his wishes in various particulars, he
threw up the brief and, on the 7th February, returned to England.]
[Footnote 332: As soon as martial law was withdrawn, counsel for the
defence proceeded to Zululand to work up their case, a period of two
months being allowed before the accused was brought to trial.]
[Footnote 333: In 1888, although preliminary examinations were held,
the same difficulties were not experienced. The reason for this was
that the issues were far simpler than those of 1907.]
[Footnote 334: For trying, not only Dinuzulu, but other Native
political prisoners.]
[Footnote 335: Act No. 8, 1908.]
[Footnote 336: Many of the depositions in Dinuzulu's case were taken in
Nkandhla district whilst the country was still under martial law.]
[Footnote 337: Cd. 4328, p. 92.]
XXIII.
REVIEW OF POLICY FOLLOWED IN CONNECTION WITH DINUZULU.--HIS
STATUS.--HIS ATTITUDE DURING, AND SUBSEQUENT TO, THE REBELLION.
The amount of misunderstanding that has arisen in connection with
Dinuzulu, both in England and South Africa, is astonishing. Probably
no other case in South Africa has called forth quite such volumes of
criticism and vituperation. Natal has been accused of following towards
him a policy of petty injustice and malice--either because of refusal
to hold a non-judicial inquiry; or because, when the ex-Chief was
arrested, it suspended his salary without the consent of the Imperial
Government; or for deferring release of the rank and file of the
rebels; or maintaining martial law longer than appeared necessary, or
for some other reason. In these and other connections, the Colony and
its public officers have been reviled and held up to scorn by those who
did not know the facts, or did not care to know them. As Natal is still
held by various persons, chiefly such as live outside her borders,
to have been mistaken, and Dinuzulu nothing but a martyr to official
spleen and vindictiveness, it is perhaps not unfitting, in a work of
this kind, that an attempt should be made to examine the position from
a somewhat wider point of view than was possible during the trial or,
indeed, on any other occasion.
* * * * *
The history of the Zulus has already been dealt with briefly in the
Introduction, whilst the earlier events in Dinuzulu's life have also
been touched on here and there. It is necessary now to consider the
position he assumed on his return from St. Helena in 1898.
During the latter portion of his imprisonment, a great deal of
agitation arose among the colonists in favour of Zululand being annexed
to Natal, largely because land was required for growing sugar. As the
Imperial Government had, since 1887, been directly responsible for the
management of Zululand; as the cost of that territory's administration
was constantly increasing; and because of the agitation referred
to, a settlement was necessary under which Natal would assume the
administration and become responsible for Native affairs.