In the Shadow of Death

by P. H. Kritzinger; R. D. Mc Donald

"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.