In 1880 (previous to high court with three judges being constituted) a special magistrate was appointed to act in conjunction with the Kimberley and Du Toit’s Pan magistrates to form the special court, but since our high court has been formed, and the Diamond Trade Act 48 of 1882 has become law, this office has been done away with, and one of the three judges now sits in turn as president of the special court.
The act just mentioned (48 of 1882) when it passed the Cape parliament might have been at once extended to the whole colony, but it was enforced by the government in Griqualand West only, consequently any one could buy or possess diamonds with impunity in the Cape Colony proper. As again in the Free State, although an ordinance was passed in the same year (No. 3 of 1882) of even greater severity, providing maximum penalties for its contravention of £2,000 fine, twenty years’ hard labor, 100 lashes, and last but not least the power to expel from the State all moral lepers in the shape of persons convicted outside the State in Griqualand West of I. D. B., their judges interpreted it not to extend beyond six miles from proclaimed diamond diggings; therefore so far as that State was concerned the free trade in diamonds was owing to an omission in and not a permission by the law.
FREE TOWN.[[43]]
The judges there seem to have been actuated by the sound legal principle that penal laws should be strictly or rather restrictively construed.
Again in Natal and the Transvaal no law connected with diamonds existed except one in the latter State, forbidding the purchase of diamonds or gold without a special license, or from a native, under a penalty of five years’ imprisonment, £1,000 fine and confiscation, an ordinance practically null and void, for these might be purchased without question from any white man on paying a duty of five per cent.; consequently the main illicit trade was done outside the confines of Griqualand West, where there was no danger of interference from the detectives when diamonds once were safely transported across the border.
The Volksraad, in the Transvaal, I ought not to omit mentioning, also passed a clause in their extradition laws against all offenders charged with contravening our diamond act, which, however, they expunged on May 26th, 1886, out of pique, because the Cape colonial government would not take off the tax on tobacco and produce; consequently Christiana, a town situated close to the borders of Griqualand West, is again the seat of much illicit trade.
Natal, however, like the Transvaal, wants some good “quid pro quo” before it will assist the Cape in suppressing this infamous trade. During the session of the legislative council 1885–86, when the “Post-office law amendment bill” was under discussion, in which power was asked to detain and open certain letters, great and unhappily successful opposition was made by certain members, Mr. Binnes, a rising legislator, terming the clause this “jesuitical clause,” and two other members expressing surprise at the “mean, sneaking power” which the government by a “sidewind” wished to gain. For a time at least, therefore, Natal has converted herself into a “thieves’ highway.” Again in the present session, 1886–87, a similar bill has been thrown out. This conduct on the part of Natal politicians is attributed to some ill-feeling with respect to custom dues, and was wholly unjustifiable, so much so that the sister colony by thus protecting the leeches that suck the life’s blood of our great industry, lays herself open to the charge of wilfully becoming particeps criminis.
These causes led to the most palpable, systematic and barefaced robberies, as may be readily imagined. So long as the Kafir thieves and white fences could in half an hour drive from Kimberley to the Free State, where no onus probandi of legal possession lay with the holders of diamonds, and whence a seaport could be reached without passing through any part of Griqualand West, the trade continued to thrive. Now, however, the injustice under which we were laboring is greatly diminished, first by the Free State Volksraad passing a law during the last session containing the much desired onus probandi clause, and second by our own parliament awakening to a sense of its duty and passing an act applying restrictions over the whole colony.[[44]]
The principal points in the Diamond Trade Act of 1882 are: (1st) That it shall not be lawful for any person to have in his possession any rough or uncut diamond, without being able to legally account for it; (2d) the punishment of those convicted under the act is increased to a maximum of fifteen years, the governor having at the termination of five years the power to remit the remainder of the sentence, on condition of the prisoner leaving the territory, with the alternative that if he return he can be rearrested and imprisoned for a term equal to the portion of his sentence unexpired at the time of his release; (3d) that none but a licensed person can export or import diamonds; (4th) that the chief of the detective department or police can stop any package in the post-office supposed to contain diamonds illegally, and warn the owner to be present at the examination, when if any unregistered diamonds be found, the owner is liable to the full penalty already mentioned; (5th) that a person finding a diamond must deliver it to the government, but to receive ten per cent. of the proceeds when the diamond is sold; (6th) that power under warrant is granted to detective officers and policemen to enter and search any suspected places, and in any highway, street, or public place, to arrest and search any suspected person, the onus probandi of legal possession resting on the suspected party if any diamonds be found; (7th) that diamond cutters must be licensed; (8th) that special permits must be obtained for washing débris; (9th) that every person is required by law to keep a register and to forward it monthly for examination to the chief of the detective department; (10th) that a special board be formed for protecting mining interests; (11th) that an accessory either before or after any contravention of the act can be charged and dealt with as a principal; (12th) and that a registration fee of one-half per cent. be levied on all exported diamonds.