To counteract this state of affairs, it became necessary, in the absence of explicit 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 December, 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 emboldening 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 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.[332]
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. Armstrong), 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 prominent 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 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.