James Stuart.

A history of the Zulu Rebellion, 1906 : and of Dinuzulu's arrest, trial, and expatriation online

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siderable distance without result, and then returned to the
shelters and found two dead bodies. By the side of each
was a magazine rifle, magazines charged and cut-offs
open.^ One had a cartridge haff in the breech, and both
appeared to have been fired recently." The Idlled turned
out to be notorious rebels, for whom search had long been
made. One of them, Mqumbeyana, was, it turned out,
the man who was in command of the impi that attacked
Roj'ston's Horse at Manzipambana on the 3rd June, 1906.
He is said to have killed a trooper on that occasion and
seized his magazine rifle, possibl}' the ver}^ one in his
possession when shot by Eairhe's party.

Other important miscellaneous work connected with the
Rebelhon or Dinuzulu's case was done by the PoKce during
the year. They were, for instance, remarkabty successful
in capturing at Johamiesburg and elsewhere, and bringing
to justice, the murderers of Sitshitshih, Mpumela and two
or three others previously referred to. These arrests were
effected before the end of February, and prior to the
withdrawal of martial law.

By the middle of March, so many of the outstanding
rebels had either surrendered or been captured, that the
Governor was advised to release about 2,000 of those still
in gaol, lea^TJig onty 116, that is, men who had been con-
victed of serious offences.

^ The guns were unlawfully in the possession of these Natives, as was
conclusively proved by lettei-s and figures stamped thereon.



XXII.

PRELIMINARY EXAMINATION AND TRIAL OF DINU-
ZULU.— WITHHOLDING OF HIS SALARY.— HIS
SETTLEMENT IN THE TRANSVAAL.

Within ten days of Dinuzulu's removal from Nongoma,
a beginning was made with the prehminary examination.
Mr. T. R. Bennett, one of the senior Magistrates, was
appointed, by virtue of being a Justice of the Peace for
the Colony, to hold the inquiry, under the authority of
Ordinance No. 18, 1845. Mr. W. S. Bigby, an advocate
of the Law Department, appeared for the Crown, and
Messrs. E. Renaud and R. C. A. Samuelson for the accused.
The examination was held at the Central Gaol, Pieter-
maritzburg. The gaol rather than the Magistrate's
court-room was chosen so as to obviate the necessity
of escorting the prisoner twice daily through the streets
of the town for the whole time the examination lasted,
viz. seven months. Numerous witnesses, mainly Natives
(of both sexes) gave evidence, much of it very lengthy.
The longer the inquiry continued, the better the under-
standing obtained by those concerned of the case in all
its bearings. Charges, at first somewhat vague, soon
began to assume definite shape, thereby facilitating the
labours of the prosecution, whilst confining the efforts of
the defence to specific issues. At the same time, much
evidence of a loose, general and hearsay character was
given, inevitable with Native witnesses, which, though
it may have prejudiced, and perhaps did prejudice,
Dinuzulu to some extent in one way, often benefited him



DINUZULU'S EXAMINATION 461

in another ; and the longer the inquiry lasted, the more
numerous were the opportunities of the evidence for the
Crown being weakened or dehberately undermined.

Ever since the beginning of the Rebelhon, Dinuzulu's
name had been freely referred to in all parts of Natal and
Zululand as associated therewith. The great majority
of Europeans regarded him as having exerted a distinctly
evil influence, whilst a few held he was rather sinned
against than sinning. The opportunity had at last come
for sifting things to the bottom. Of this the Government
resolved to take full advantage. It is, therefore, not
surprising that the scope of the inquiry was wide ; that
European and Native witnesses were exceptionally
numerous ; that they had to be procured from all parts
of Zululand, Natal and the Transvaal ; and that the
investigation was as rigorous and protracted as it was.
At the same time, probably better results, from a judicial
as well as pohtical point of view, would have been attained
by concluding it sooner.

Among the means available to Dinuzulu for meeting
the expenses of his defence was his salary of £500 per
annum. This he had been in the habit of drawing
regularly from the Natal Government ever since his
return from St. Helena in 1898. As soon as he was
arrested, however, the Natal Government suspended
payment, on the ground that he was no longer discharging
the functions in virtue of which it had been granted.
As the Imperial Government was concerned in his appoint-
ment as Chief, its approval was sought, but, owing to a
difference of opinion, this was withheld.
Iflln order to appreciate the situation that then arose,
it would be well to refer to the conditions under which
the Chief was repatriated, quoted at length on p. 478.

The Natal Government's view was that : (i) Suspension
of salary was in accordance with, universal practice, and
the Imperial Colonial Service rules ; (ii) only so long as
the Chief behaved well and obeyed the laws laid down for
his guidance would the salary not be withdrawn, except
wdth the approval of the Secretary of State ; (iii) arrest



462 THE ZULU REBELLION

and detention carried with them suspension from the
service of the Government, — there was a clear distinction
between suspension from office and salary, and withdrawal
of an office and salary. It was, moreover, feared that
the attitude of the Imperial Government would prejudice
the merits of the criminal proceedings being taken against
Dinuzulu, as well as embarrass the Natal Government in
connection with the demand that had already been made
by Dinuzulu's legal advisers for payment of the salary.

The Secretary of State consented neither to suspension
nor to withdrawal, and for these, among other, reasons :
(i) According to Imperial Colonial Service rules, pro-
ceedings for suspension are not taken against a public
officer pending criminal proceedings ; (ii) the case could
not be dealt with as an ordinary civil service appoint-
ment, — being without precedent, it should be dealt with
on its own merits ; (iii) Dinuzulu's position, as Govern-
ment Induna, could not, even temporarily, be taken
away without the approval of the Secretary of State, and,
before signifying such approval, it would be necessary
for the Natal Government to show satisfactorily that
the Chief had contravened the laws laid down for his
guidance ; suspension, therefore, should follow and not
precede the trial ; (iv) Dinuzulu must be assumed to be
innocent until proved guilty ; (v) it was most important,
in giving a fair trial, to leave him in possession of means
to arrange for his defence.

After several months' correspondence, with no prospect
of a solution being arrived at, the Imperial Government
decided, on the 21st July, " to pay the amount of Dinu-
zulu's salary, so far as it had accrued to date," viz.
£333 6s. 8d. This decision was at once taken the strongest
exception to in Natal and discussed at length a few days
later in Parliament, when the Attorney- General (The
Hon. T. F. Carter) reviewed the position at length. As,
however, the Natal Ministry were equally anxious with
His Majesty's Government that the defence should not
be prejudiced for lack of funds, the Secretary of State
was advised that " whilst maintaining that their (Natal



DINUZULU'S SALARY 463

Ministers') contention is correct on question of suspension,
. . . they are prepared, if approached by Dinuzulu, to
provide a sum of money to assist him in his defence."
Further discussion thereupon became unnecessary. On
the 1st October following, a sum of £500 was paid by the
Natal Government to Dinuzulu's agents for the purpose
named.

The preliminary examination was finally closed on the
30th July, the prisoner being formally committed for
trial before such court as might be directed by the Attorney-
General, on the following charges : High treason ; public
violence ; sedition and rebellion ; murder of, or being
accessory to murder of, or conspiring to murder, Gence ;
inciting to murder Gence and Mapoyisa ; contravening
the Firearms Act, 1905. Dinuzulu emphatically declared
his innocence. He complained of an opportunity not
having been given him of " arranging " his defence. " A
selection of criminals," he added, " and of my personal
enemies has been made, to testify to deliberate untruths."
His indunas Mankulumana and Mgwaqo were committed
at the same time, on charges of high treason. The three
examinations had extended over the period 23rd Decem-
ber, 1907, to 30th July, 1908.

Early steps were taken by Dinuzulu's friends to obtain
the services of one of the ablest lawyers in South Africa.
The brief was offered to and accepted by the Hon. W. P.
Schreiner, K.C., formerly Premier of the Cape Colony,
though Mr. Schreiner did not proceed to Natal until a
few days before the trial began. ^

The notorious rebel Cakijana, after evading the police
in Zululand and Natal, proceeded direct to Dinuzulu's
friend. Miss Colenso, at Bishopstowe. This took place
on the 9th March, during the continuance of martial
law, and serves to show how necessary it was to maintain

^ 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 Govern-
ment conform to his wishes in various particulars, he threw up the brief
and, on the 7th February, returned to England.



464 THE ZULU REBELLION

such law in Zululand. Instead of promptly handing him
and his companion over to the police, Miss Colenso
instructed an attorney at 10 p.m. to take their state-
ments at length. Only by working through the night
could this be done, and not till the day following were
the rebels put into a cab and conveyed by Miss Colenso
to the Chief Commissioner of PoHce. There is reason to
suppose that Dinuzulu or his friends in Pietermaritzburg
had directed Cakijana to proceed to Bishopstowe in con-
nection with the defence. Thus, even principal rebels
seem to have been acting under the Chief's orders, and
this whilst his own preliminary examination on charges
of high treason, sedition, murder, etc., was actually in
progress.

The question has sometimes been discussed as to the
advisability of holding examinations, such as that of
Dinuzulu, under the ordinary law, even though, as in
this instance, the trial takes place before a specially-
constituted court.

In the first place, the offences were of an unusual
nature. As they did not fall within the category of
ordinary crimes, it would seem they ought to have been
treated abnormally. Special procedure was followed in
the cases of Langalibalele (in 1874) and Dinuzulu himself
(in 1888), whilst, during the Boer War, special courts
were again appointed to deal with European prisoners
charged with high treason, sedition, etc. Legislative
authority under which this could have been done was
wanting.

Owing to Dinuzulu's enormous influence in Natal and
Zululand, witnesses could be got to give evidence against
him only with the greatest difficulty, especially at the
outset. Such influence was a most serious obstacle to
the Crown. The circumstances were exceptional. Par-
ticularly those able to give the most incriminating
evidence were in a chronic state of fear, for they knew
that a number of loyalists of high and low rank had
already been murdered at different times (presumably



DINUZULU'S EXAMINATION 465

by the order of Dinuzulu), at any rate it was generally
so supposed. In the act of giving evidence unreservedly
in open court on behalf of the Crown, they, too, became
transformed into " loyahsts " and " prominent loyalists,"
and therefore marked men. Although most of the
murderers had, by the time the trial began, been appre-
hended, none had been tried and punished. There was,
therefore, in the eyes of the witnesses, no guarantee that
they would not, in some way or other, lose their lives,
seeing the friends of Dinuzulu had the right, under the
law, of having interviews mth him from time to time.
As for the witnesses for the defence, they spoke without
that pecuhar sense of dread which oppressed Native
witnesses for the Crown, although every assurance and
visible means of protection were afforded the latter by
the Government. The spectacle, moreover, of these
witnesses being hable to the menacing influences of
Dinuzulu and his friends, was extremely detrimental to
the prestige of the Government, especially in a country
occupied by over a milhon warHke savages.

To counteract this state of affairs, it became necessary,
in the absence of exphcit provision in the law, to take
certain administrative action which, however, was at
once strongly objected to by counsel for the defence.
For instance, martial law, proclaimed on the 3rd Decem-
ber, was maintained without a break until the 11th of
August, 1908, although the primary reason on account
of which it had been promulgated, had ceased to exist
within ten or twelve days of such promulgation. The
effect of this law, operating as it did in Zululand alone,
was to confer on the Crown the right of vetoing entry of
any and all persons into that territory, whose actions,
however well-intentioned, might have had the effect, in
the opinion of Government, of keeping alive the unrest
and once again endangering the peace, besides embolden-
ing outstanding ringleaders to remain still longer at large.
That a number of Dinuzulu's legal advisers, whilst
vigorously procuring evidence in Zululand, would have
promoted unrest, quite apart from tending seriously

2g



466 THE ZULU REBELLION

to defeat the ends of justice, needs only to be stated to
be accepted by those who do not happen to belong
to that admirable but sometimes rather indiscreet
profession.^

It was not until the beginning of March that the
murderers had all been arrested, and not till the 10th of
the same month that Cakijana had surrendered.

Whilst the examination was proceeding, the Magistrates
at Nkandhla (B. Colenbrander), Nongoma (G. W. Arm-
strong), and elsewhere, were actively engaged accumulating
evidence on behalf of the Crown, most of which, of course,
was given under martial law, though not on that account
improperly obtained. It is on record that such pro-
minent witnesses as Mangati, Cakijana, Rolela, Mayatana,
Mgunguluzo and others all gave their evidence voluntarily.

Another complaint was that a number of witnesses,
whose evidence had been taken, were not caUed 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 pro-
cedure, to be futile if not frivolous, because, under the
Ordinance of 1845, mider which the preparatory examina-
tion 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 beheving that Dinuzulu had com-
mitted 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 in-
ference, 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

^ 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.



DINUZULU'S EXAMINATION 467

Zululand ever since the proclamation of the PoU 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 pohtical 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 surpris-
ing 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.^ 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 Govern-
ment 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

^ 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.



468 THE ZULU REBELLION

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
feehngs to get the better of them. In these circum-
stances, 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 ^ was brought before
Parhament in July, i.e. shortly before the conclusion of
Dinuzulu's examination. It became law ^ on the 15th
August. The judges appointed were : Sir WiUiam 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 poHtical 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

^ For trying, not only Dinuzulu, but other Native political prisoners.
2 Act No. 8, 1908.



THE SPECIAL COURT 469

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 Govemor-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 he 'present during the inquiry . . .
unless the magistrate so directs, nor shall he be represented
by a pleader during any such inquiry, nor sluill 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 supphed with a copy of the
order, of the charge, and of the evidence taken. The
Magistrate, moreover, has the power of examining supple-
mentary 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 prehminary examination,
and accords the Crown far greater facihties than Avere
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.^
There is not a word in the Indian Act about the existence
of martial law, and yet the procedure provided is of a

1 Many of the depositions in Dinuzulu's case were taken in Nkandhla
district whilst the country was still under martial law.



470 THE ZULU REBELLION

far more rigid, exclusive and seemingly unjust character
than what counsel for the defence took exception to in
Natal. The Lidian Act further stipulates that all persons
sent for trial shall be tried by a special bench of the ffigh
Court, consisting of three judges, and that " no trial
before the special bench shall be by jury."

The Lidian 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. Li 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 disagree-
able position Natal found herself in during the trial of
Dinuzulu would be largely mitigated by ehminating, ab
initio y elements of discord and all appearance of injustice.

An Act indemnifying aU 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 hke 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." ^

After Dinuzulu's counsel had collected aU the evidence
they were able and wished to do in Zululand, and their

1 Cd. 4328, p. 92.



DINUZULU'S TRIAL 471

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



Online LibraryJames StuartA history of the Zulu Rebellion, 1906 : and of Dinuzulu's arrest, trial, and expatriation → online text (page 41 of 52)