The Transvaal from Within: A Private Record of Public Affairs

by Percy Fitzpatrick

Once within the gaol, the men were searched and locked up in the cells, and treated exactly as black or white felons of the lowest description. In many cases four or five men were incarcerated in single cells 9 feet long by 5 feet 6 inches wide, with one small grating for ventilation. At night they were obliged to lie on the mud floor, or in some cases on filthy straw mattresses left in the cells by former occupants. No provision was made by which they could obtain blankets or other covering—indeed at first it was not necessary, as the overcrowding and lack of ventilation very nearly resulted in asphyxiation. With an inhumanity almost incredible, in one instance one of the prisoners, suffering from fever and dysentery, was locked up for twelve hours with four others in such a cell without any sanitary provisions whatever. Friends in Pretoria induced the authorities, by means not unpopular in that place, to admit a better class of food than that allowed to the ordinary prisoners; and it is stated that the first meal enjoyed by the Reformers cost close upon £100 for introduction. Day by day fresh concessions were obtained in a similar manner, with the result that before long the prisoners were allowed to have their own clothing and beds and such food as they chose to order. Nothing however could alter the indescribable sanitary conditions, nor compensate for the fact that the cells occupied by these men were in many cases swarming with vermin.

The climate in Pretoria in January is almost tropical, and the sufferings of many of the older and less robust men under such circumstances were very considerable. On the eleventh day of incarceration the majority of the prisoners were let out on bail of £2,000 each; in the cases of two or three bail of £4,000 each was required; but bail was refused to Colonel Rhodes, Messrs. Phillips, Farrar, Hammond (the signatories to the letter), and J.P. FitzPatrick, the secretary of the Reform Committee. These five continued to occupy the undesirable premises for four weeks more, at the end of which time, owing to the serious effect upon their health which imprisonment under these conditions had produced, and owing to the repeated representations within the Transvaal and from the British Government as well, an alteration was made under somewhat novel conditions.

It was notified to the public that the Government had graciously consented to admit the prisoners to bail. The terms, however, were not at the time publicly announced. First and foremost it was required of them that they should deposit £10,000 in sovereigns each as security that they would not break the conditions of their altered imprisonment. They were to reside in a cottage in Pretoria under strong guard, and they were to pay the whole of the costs of their detention, including the salary and living expenses of the officer and guard placed over them. The cost, including interest upon the money deposited, was upwards of £1,000 a month.

The preliminary examination into the charges against the Reformers began on February 3, and lasted about a month. It resulted in the committal for trial, on the charge of high treason, of all those arrested. The Imperial Government having decided to send a representative to watch the trial on behalf of the British, American and Belgian subjects, Mr. J. Rose Innes, Q.C., the leader of the Bar in Cape Colony, attended on their behalf. It was intimated to the Transvaal Government that Mr. Innes would represent the Imperial Government; but objection was made to this on the grounds that he had been admitted to the Pretoria Bar during the British administration, and had failed to comply with a subsequent rule of Court which required some sort of registration; and permission was refused to him to address the Court. The objection was maintained, and Mr. Innes was obliged to limit his participation in the affair to sitting at the counsels' table and consulting and advising with the Pretoria barristers employed to defend the prisoners.

The examination was, as Dr. Coster the State Attorney announced, of the nature of a fishing examination, and he claimed to be permitted to conduct it in a manner which, he alleged, is popular in Holland, but which is entirely unknown in the Transvaal, and certainly does not obtain in any British possession. The chief feature of this system appears to be a total disregard of the rules applying to evidence. A few instances will suffice. One of the first witnesses called was Judge Ameshof, who with Chief-Justice Kotzé and Mr. Kock formed the Government Commission appointed to meet the deputation from the Reform Committee on January 1. Judge Ameshof was duly sworn, and was asked to identify a list of the members of the Reform Committee. He did so. He stated that it was the list supplied to the Government Commission at the meeting of January 1 by the deputation of the Reform Committee, and he regarded it therefore as authentic. The deputation had stated to the Commission that it was so.

This was the first revelation of the tactics about to be pursued by the Government, in using information which had been given under privilege and in good faith by the prisoners themselves, when negotiating with the Government prior to any question of arrest being raised. Mr. Wessels, counsel for the accused, rose to obtain from Judge Ameshof the official account of the meeting, desiring to prove this very important negotiation by means of witnesses on the Government side. He got no further however than saying to the witness, 'You said you were a member of the Government Commission?' when Judge Ameshof replied, 'Yes, but if you are going to ask me about anything that took place at that meeting, I cannot answer, because the meeting was a privileged one.' Mr. Wessels did not lose his opportunity, 'You have stated,' he said, 'that you are a Judge of the High Court?' The witness signified assent. 'And you mean to tell me,' Mr. Wessels continued, 'that you feel yourself free to divulge so much as it suits the Government to reveal, but that as soon as I wish to prove something to my clients' advantage the interview becomes privileged?' The witness did not answer, and Mr. Wessels appealed to the Court. Judicial Commissioner Zeiler, however, upheld the witness's contention. Mr. Wessels urged in reply that if it was a privileged interview he objected to any evidence whatever being given in connection with it, and protested vehemently against the admission of the list of members just sworn to. The objection was overruled, and it was thus laid down that the interview was privileged as far as the Government was concerned, but not in so far as it could benefit the Reformers.

Another case was that of Mr. Schumacher, a witness who testified, inter alia, that he did not know what the objects of a certain Development Syndicate were. His evidence showed that he had not been informed upon this point. He was very hard pressed by the State Attorney, but he adhered to his first answer. Dr. Coster then altered his tactics and asked, 'Had you no opinions on the subject? Did you not guess at all?' The witness replied that he might have thought and conjectured at various times, but that he had nothing in the nature of information or knowledge on the point. This did not satisfy Dr. Coster, who then pressed the question, 'Well, what did you think? What were your thoughts?' The witness objected to state what his thoughts were, as they could have no bearing on the fact, and might be absolutely wide of the mark. He could only repeat that he had no knowledge. The witness appealed to the Bench for protection. Mr. Wessels urged that it was an unheard-of proceeding to compel a witness to state what he thought and to use it as evidence. The objections were again overruled, and the witness was ordered by the Court to answer. His reply afforded no satisfaction to the Government, being to the effect that he could not then remember what his thoughts were at various times. On the application of the State Attorney the Judicial Commissioner sent him to gaol for twelve hours for contempt of court.

Mr. Wessels strenuously objected to the decision and applied to the Court to stay imprisonment to enable him to appeal to a judge in chambers, but even this was refused. Mr. Wessels in the course of his address received a reprimand from the Bench for stating that he now recognized the force of the State Attorney's contention that the law of evidence as obtaining in South Africa was not sufficiently wide; for, he added, he thought it would suit the purpose of the Government better if they reverted to an older system under which racks and thumbscrews were popular.

The witness was sent to gaol. Some hours later an appeal was heard by Judge de Korté in chambers, and the decision of the Judicial Commissioner was reversed, but the prisoner had already completed seven hours' imprisonment in a dirty cell. Judge de Korté stated that he had reversed the decision after consultation with Chief Justice Kotzé, and it was felt that something at least had been achieved by Mr. Schumacher, and the rights of a witness would be recognized. But the end is not always in sight in dealing with the Transvaal Government. The State Attorney in turn appealed from the single judge's decision to the full Bench. Judge Morice, a Scotchman, many years a judge of the High Court, supported the decision of Judge de Korté. The Chief Justice, who had advised Judge de Korté in his decision however in a most extraordinary judgment now reversed it, and in this view he was supported by Judge Ameshof—himself a witness in the case against the Reformers.

Thus the majority judgment of the High Court against the Reformers on this principle of evidence happened to be formulated by the two judges who had been appointed to negotiate with the Reformers' deputation on behalf of the Government.