Journal of Natal and Zulu History
Volume XV, 1994/1995
Zululand 1887-1889: The Court of the Special Commissioners for Zululand and the Rule of Law.
B M Nicholls
In the process of political transformation - as events currently unfolding in South Africa clearly show - there are many agencies of change. One of them is the judiciary. More than a century ago this was also true of the situation in Zululand. The present hope in South Africa is that all the agencies of change will contribute to the inauguration of a new South Africa of liberty and enhanced opportunity. The past experience of the Zulu people - as of other South Africans - is that judicial processes have contributed to conquest and subjugation. An example of this is to be found in the proceedings of the Court of the Special Commissioners for Zululand from November 1888 to April 1889.
Rhodes University
In the 1880s Zululand was one of the disputed territories of southern Africa which, for all the hesitancy of British policy, experienced the remorselessness of conquest. What this paper addresses is an episode in the process of subjugation: the immediate sequel to the partition of Zululand in 1886 (as `shameful' as the partition of Poland)1 and the annexation by Britain of that portion of Zululand which for a decade was a British Crown Colony. Ferment - called rebellion - preluded submission, and submission was followed by judgements whose justice was vigorously challenged by those who were the supporters of the Zulu Royal House.
In Zululand the situation was comparable to that which obtained to the west of the Transvaal (South African Republic again from 1884). Tensions and conflict among the black people were at least exacerbated by the intrusion of white filibusters. Previously the Zulus had experienced the defeat and destruction of the Anglo-Zulu War, the exile of Cetshwayo during which thirteen kinglets shared out authority, to the humiliation of the House of Tshaka and under the eyes of Melmoth Osborn,2 British resident in Zululand, who was much criticised by the Colensos. Subsequently, unable to ignore the disintegration in Zululand, the Liberal government under Gladstone decided to restore Cetshwayo, but to a truncated kingdom with limited power. To the south, between the Umhlatusi and the Thukela was the Reserve, where John Dunn and Hlubi were located with their followers and where the British government would take no responsibility, although it allowed the collection of hut tax and the institution of a police force.3
North of Cetshwayo was the land allocated to Zibhebhu ka Maphita who had ingratiated himself with the authorities.4 Even apart from the controversies over `double boundaries' the restored ex-King's position was hopeless.5 By 1887 the agonising years of ferment, tumult and appeal had crystallised into a situation where the chief rivalry within Zululand was that between Zibhebhu ka Maphita and his Mandhlakazi following and Dinuzulu, son and successor of Cetshwayo, and his uSuthu followers.6 Both the Mandhlakazi and uSuthu resented the disasters and gloried in the triumphs of the past. Within months of his restoration in January 1883 Cetshwayo was twice defeated by Zibhebhu, once at the battle of Msebe in March 1883 and then, shortly after the death of Bishop Colenso, at the battle of Ulundi in July 1883.7 Cetshwayo was once again a refugee, lurking for a time in the Nkandhla and then coaxed to Eshowe where he died in February 1884. Some cried `poison' others spoke to death of a broken heart, others still of assassination.8 The Mandhlakazi humiliation came a little later.
In May 1884 Dinuzulu, having established his claim to the succession, received the help of white filibusters, some Boer some colonial, who recognised him a king and helped the Usuthu trounce Zibhebhu at the battle of Etshaneni in June. The Mandhlakazi force was totally destroyed and their cattle scooped up by triumphant uSuthu, while Zibhebhu was driven into the Reserve for refuge.9 A little later Sokwetshata, Zibhebhu's ally, was also forced into refuge in the Reserve.10 Whether or not their humiliation would be permanent would depend on the course of events in Zululand where, temporarily at least, the uSuthu had triumphed.
Here all was not well. Dinuzulu found that the whites who had made him king threatened to leave him nearly landless as they demanded more and more land, not only for those who had fought at Etshaneni but for latecomers as well. The white intruders set up a New Republic with Vryheid as its centre. The uSuthu, confronted by land claims to which they may or may not have assented and which may or may not have been properly explained to them but which they certainly did not wish to concede, pleaded for intervention from British.11 This was reluctant and slow. At a time when Bismarck was moving in to the scramble for colonies and when men like Schiel and Einwald were at work among the Zulus, the British annexed St Lucia Bay and then proceeded to hold back from further intervention.12 The Liberal government was headed by the anti-imperialist Gladstone, weakened by inner dissent and too preoccupied by other issues - domestic, Irish, colonial and foreign - to respond firmly to the urging of Sir Henry Bulwer the Governor of Natal and the Special Commissioner for Zululand.13 An event like the murder of Dabulamanzi14 in the Reserve stirred humanitarian outcry, but it was not until the Conservative government settled into a fairly firmly based control of government15 that Havelock, successor to Bulwer, could move into clearer actions to bring the situation in Zululand into order.16 He did not have an easy task. The uSuthu hoped that the British would secure their land for them and win back what they believed the Boers had taken without their agreement. Natal politicians urged intervention that would ultimately be to the benefit of Natal.17 Officials in Zululand did not forget that Zibhebhu was in the Reserve.18 Humanitarians hoped that the British government would act to save the uSuthu from Boer clamour and many, but by no means all (the Colensos were divided on the issue), advocated British annexation.19
It was hard for a new man to tackle so complex a problem and Sir Arthur Havelock made a point of consulting both Sir Theophilus Shepstone, now a much honoured elder statesman, and Harriette Colenso who, as Colenso's daughter, inherited the reputation as well as the role of her father.20 Each had a different view of the history of Zululand and a different view of what its future should be. At different times the perplexed but well meaning Governor leaned first one way than to the other, though he ended up firmly in the Shepstone camp.Shepstone insisted that the Zulu people lacked coherence and could be regarded as a conglomeration of separate entities, some dating to pre-Shakan times while others were formed of the following build up by a powerful figure. For Shepstone it was clear that the power of the Zulu royal house should be regarded as ended.21 By contrast Harriette Colenso remained loyal to her father's view. This was that the royal house was the integrating principle for the Zulu people and that it was their loyalty to the Zulu royal house that gave the Zulu people a corporate identity. She abhorred the policy of breaking up the Zulu people that had been followed since the end of the Zulu war and sought to achieve not only re-integration of the Zulu people but also reconciliation between the Zulus and the white government of Zululand, then represented by Havelock.22
Havelock believed that the arrangements which he reached with the representatives of the New Republic in October 1866 were the best that he could make. The existence of the New Republic was recognised. Its boundaries were to be defined in such a way as to exclude much that the filibusters had sought to secure, but there was to be an area (known as the Proviso B area because it was defined in that part of Article 1 of the agreement) where whites might hold farms, beyond the boundaries of the New Republic.23 The uSuthu protested about the loss of land. Deputations reached Pietermaritzburg which consulted with Harriette Colenso and with the legal firm of Campbell and Dumat who, in turn, made representations about the Proviso B region and about the exclusion from the Zulu area of the Makosini district, the area of Zulu royal graves. The possibility that the Zulu might purchase back this region was raised, but the British government made it plain that they would not foot the bill, and local white officials decried the significance of the Makosini region as the `burial place of the nation' and argued that it would not be just to tax all the Zulu people to raise the money to be used to purchase land that would be valued by only a section. Havelock hoped to satisfy legitimate Zulu susceptibilities by arranging for the white farmers to show special care of the region.24 Meanwhile the boundaries were demarcated, and the Zulu people were summoned to send representatives to the demarcation. Harriette Colenso was involved in a new row over whether or not they had in fact done so, since the presence of accredited Zulu personages (not mere messengers) would be constructed as consent to the arrangement, and some argued that, while the Zulu people maintained their protest, there was a chance that a more generous rectification would be made.25 Despite the uSuthu protests which Harriette communicated and distributed - on flimsy sheets off the new press she had bought to replace that destroyed in the Bishopstowe fire - the demarcation went ahead and was followed by the next steps.26 The declaration of a Protectorate over Zululand outside the New Republic to include the Proviso B area and the Reserve and thus to stretch from the boundary with Natal to Tongaland came in February. Northern extensions could wait. In May a Proclamation of annexation was issued and Zululand began its decade of Crown Colony rule.27 Again, there were debates about the wisdom and the acceptability of annexation to Britain. In the House of Commons, Henry Labouchere, radical and anti-imperialist, used the annexation of Zululand to divide the House, claiming that such an annexation required the assent of the British people and evidence of the assent of the Zulu people.28Annexation with the agreement of the British parliament and with the assent of the Zulu people might be highly desirable but the assent of the Zulu people was very unlikely. Only highly suspect rationalisations on the part of officials as to what could be deemed assent when dealing with a conquered people were offered; but, since the annexation could hardly be undone, these sufficed.29 To be brought under the control of unsympathetic white officials was not what the Zulus had expected when they sought British intervention. With the uSuthu leaders perplexed the situation was highly volatile. Havelock became Governor of Zululand. Melmoth Osborn was Resident Commissioner, at the apex of the administration in Zululand and of the hierarchy of courts. Magisterial districts were set up and magistrates, some of them young and inexperienced, whose role in the previous dispensation may have been questionable, were appointed as magistrates usually with an induna (Yamela for Osborn, Vusindhlu for Addison), with a small police presence (George Mansel who had commanded the Reserve Territory Carbineers became the head of the Nongqai or Zulu police), with power to enforce the laws (defined by Proclamation as `those of Natal - as far as these may be applicable') and with the belief that each man was in his own area the representative of the Supreme Chief equipped with the prestige and power that was appropriate to that role. Regulations were enacted to deal with the problems that might be expected in Zululand as a crown colony i.e. for the licensing of storekeepers and probably more significant than many have realised, the establishment of pounds. Hut tax was payable throughout Zululand.30
The magisterial divisions which were most significant in what followed were those at Ndwandwe and at the Lower Umfolosi. The Ndwandwe, where R.H. Addison was appointed, was the uSuthu heartland and bitterly contested ground between the uSuthu and the Mandhlakazi. Here the main imizi of leading uSuthu figures such as the Minya umuzi of Ndabuko, the full brother of Cetshwayo and Dinuzulu's umuzi at Osutu. In the Lower Umfolosi the magistrates were A.J. Shepstone and then A.L. Pretorius. Here too was territory where uSuthu loyalists lived and important settlements e.g. the important Emangweni ikhanda were to be found. During June and July the proclamation of annexation was read at the gatherings held at Eshowe and at Nkonjeni.31
In the ensuing months the magistrates found increasingly that they could not hold the situation. uSuthu leaders were perplexed and deliberately uncooperative. They continued to impose cattle fines and demand acceptance of their authority when the magistrates contended that the authority no longer resided with, for example, Dinuzulu. For their part the magistrates imposed fines that could be exacted by what were only thinly disguised and legalised cattle raids. What the magistrates regarded as due obedience was not readily offered, and in the Lower Umfolosi there was a tug of authority between Bejane and Somopo and A.J. Shepstone.32
Arguably both magistrates and the uSuthu looked for some kind of external support while official reports and petitions reached Havelock. Mnyamana,33 once Cetshwayo's chief counsellor, evidently no longer wished to be drawn in to conflict, the more so since he had people who looked to him for leadership located in the area of the New Republic. Tshingane, half-brother of Cetshwayo, finding that his imizi had been placed in the New Republic and Proviso B, moved from the Makosini district to the area around Hlopekhulu.34 Dinuzulu was known to be making visits across the recently established border of the New Republic and he was quickly suspected of treasonable intentions. He may well have been motivated by the hope for help, whether from his own ultra-uSuthu loyalists (Abaqulusi) or from the whites among the New Republicans whom he regarded as well disposed and friendly.35 In November 1887 Havelock visited Zululand, and the reluctant uSuthu leaders were summoned before him. He asserted his authority in the manner of Sir Harry Smith, if without the panache that had been characteristic of the Eastern frontier's annexationist High Commissioner. Ndabuko (full brother of Cetshwayo) must, so Havelock said, `do as he is told' and the Governor announced that the House of Tshaka was as split water. He fined the uSuthu leadersorr their recalcitrance and he offered them stipends. More disastrously he announced that Zibhebhu and Sokwetshata were to be restored to lands which they claimed in the Ndwandwe and the Lower Umfolosi respectively.36
The anxious local officials who persuaded Havelock to this step badly misled him into expecting that such repatriation could be peacefully accomplished. In fact, very little was done to ensure that repatriation would be peaceful. No commissariat arrangements were made, and the absence of women and children indicated that this was not really a re-settlement of the whole people.37 Even more crucial, the officials had not decided precisely where Zibhebhu was to be located, and the attempts to mark out locations after he had arrived in the Ndwandwe were a confession of official shortsightedness at the least. Addison marked out lines for Zibhebhu which were then revised by Knight the magistrate at Entonjaneni. They were traced out in maps, but in fact no line of demarcation could have averted conflict among people who had felt such accumulated bitterness.38
Havelock left much to the local officials. Probably the Governor himself could not know of the confusion about where people should be settled for Zibhebhu had, at different times, received different land allocations and the allegiances of followers had shifted. The whole task of demarcation was probably the more difficult because an umuzi might change its location while it retained its name. Many of the uSuthu adherents were evicted, the total number being a matter of later dispute.39 Crops were destroyed and appropriated and the Governor's offer of compensation, while it may have satisfied the Secretary of State that the Governor was keeping control of the situation, would have amounted to little in the human ferment that occurred in Zululand.40 Addison, fearful of the intervention of uSuthu adherents from across the border, sought to intimidate such men and made himself guilty of illegal flogging, an action which prompted questions in the House of Commons.41
The officials chose to regard the events between 20th April and 16th October as the period which marked the most intense disturbance and constituted what has been described as the uSuthu opstand or subsequently as a `trumpery' rebellion. Each of these episodes is highly controversial and can only be mentioned here as in a list of incidents and/or near or actual confrontations. On April 26th a force of the Zululand police attempted to arrest uSuthu adherents who had fallen foul of magistrates. (Among them was Mthumbu who, instructed to move his people from land claimed for others, had torn up the letter of instructions of the magistrate and apparently buried it in an ant-hold.42) On 13 May uSuthu gathered at Ceza a kind of mountainous retreat which lay right on the border of Zululand and the New Republic.43 Cattle were raided and Mnyamana's people were harassed. On 2 June there was a confrontation at Ceza. There is good evidence, much emphasised in the later discussion of the event, that the uSuthu leaders attempted to avert confrontation but, when shots were exchanged, there was a rush of uSuthu supporters to assist their colleagues.44The force which had been despatched to arrest Ndabuko and Dinuzulu withdrew with uSuthu warriors in pursuit.45 Traders in the vicinity were murdered.46 Dinuzulu and Ndabuko remained at Ceza. There was a short waiting period which ended when, on 11 June, Zibhebhu who had been summoned to assist the magistrate at the Ivuna made an unexpected swoop on Msushwane who was threatened with eviction and whose followers had killed Mandhlakazi adherents. Msushwane and ten of his followers were killed.47 The uSuthu were thus provoked into brilliantly executed retaliation for Msushwane was an important man and the brother of a wife of Cetshwayo. A uSuthu force swooped on to the Ivuna where they attacked and routed Zibhebhu who was once more a refugee although he took part later in the harrying of the uSuthu. That attack at the Ivuna featured prominently in the later discussion of the events. The officials regarded it as an act of treason and rebellion, an attack on the magistrate who was an appointed officer of the Queen. The defenders of the uSuthu insisted that the magistracy itself was not attacked; in fact it was avoided. The thrust of the uSuthu onslaught was against the Mandhlakazi encampment.48
That uSuthu triumph transformed the situation. uSuthu spirits were raised and the officials the more anxious. At Hlopekhulu Tshingane, who had earlier accepted a stipend, was now the rallying point for the anxious and uncertain as well as the hostile. Cattle were brought to the Hlopekhulu as men waited upon events and some, like Somhlolo of the Biyela people, were intimidated into attaching themselves to the uSuthu.49 Then came the attack on the magistracy at the Lower Umfolosi where Sokwetshata was situated. It was not a very purposeful attack, but the authority of the magistrate collapsed for a time and the magistracy appeared to need to be relieved.50 Certainly traders were in danger. Two were murdered: one, a man called Ashby, was killed when his fellow travellers and traders, who were healthy when he was fevered, fled before an impi of the young men of the coast chiefs reaching the sanctuary of the magistracy after a kind of Rider Haggard pursuit. Another casualty was the trader Tonge who was murdered when travelling southward, apparently unsuspicious of danger.51
At this stage the authorities decided to call upon military support, and Lt General Henry Smyth and his nephew Robert Baden-Powell with troops from the Cape were eager for action and success.52 That force, together with native allies under Major McKean, concentrated on the pacification of the coast chiefs and pursued a scorched earth policy from the Lower Umfolosi to Eshowe and beyond that shocked Havelock, though in London Knutsford did not want to quarrel with the War Office about the tactics of an army general in Zululand.53 Before he was done in Zululand, Smyth had also made use of Zibhebhu in the north apparently leaving him with sufficient ammunition to raid Tonga chiefs, Sibonda and Ncamana.54uSuthu defiance dissipated. Tshingane and his followers were attacked and cleared from the Hlopekhulu before the arrival of Smyth, and Tshingane took refuge at Ceza.55 Here Smyth projected an attack and he and Havelock were at odds over who should have final authority, whether or not there should be parley and who should conduct it.56 What happened, however, was that Dinuzulu took what refuge he could in the New Republic sometimes reappearing in Zululand.57 Smyth withdrew from Natal with little military glory.58
Meanwhile messengers from the uSuthu reached Pietermaritzburg in the persons of Sifo and Soni. The message they brought asked `Why Zululand was troubled?'. They rehearsed the grievances of the uSuthu since the repatriation of Zibhebhu, especially the evictions and the cattle raids they had experienced.59 When they returned to Zululand, messengers from Harriette Colenso, notably Mbulawa Mthimkulu and Mubi Nondenisa, went with them, carrying one of the most notable of Harriette Colenso's messages.60
With the ferment over, the men who were later to stand trial before the Court of the Special Commissioners for Zululand were arrested. Some surrendered voluntarily. Some were handed over by their chiefs.61 Ndabuko surrendered to the military at Nkonjeni. Tshingane was arrested at Hlopekhulu whither he had returned.For some weeks Dinuzulu was a political pawn in the negotiations that were undertaken to secure British assent to the Union of the New Republic with the South African Republic: at least this is what the account of his movements and the timing of his sojourn in the New Republic suggests. Once Britain had agreed to the Union of September 1888 Dinuzulu's presence was dispensable and he was in danger of being interned at Lydenburg. He chose instead to trave to Pietermaritzburg with some followers and in the company of the son-in-law of a former New Republic official, Jim Henderson. He travelled by train from Ladysmith. On arrival he and his party walked past Government House out to Bishopstowe where a surprised Agnes Colenso, whose sister Harriette was already at Eshowe, received him and where the Pietermaritzburg police came out to arrest him.62
Harriette Colenso later claimed that the uSuthu surrender was a consequence of her letter of 1 August which she drafted with the help of Harry Escombe and the knowledge of the Governor Sir Arthur Havelock. It reached the uSuthu shortly after they had dispersed from Ceza. Writing very solemnly in the interests of peace and to avoid bloodshed, Harriette composed one of her most notable messages. She offered those whom she sought to counsel a bitter option: a choice between two roads to death. They could continue the use of the assegai and risk `dying in a heap'. As Sobantu's daughter she would not reproach them if they continued to fight, but she warned that, if they made this choice, their grievances would never be heard. The other road - that of submission and surrender - was also a road to death, but at least there was the chance that if they made this choice their grievances against officials would be investigated and they would not be judged by the officials by whom they believed they had been wronged. When Havelock to whom Harriette sent a copy of this message forwarded it to Lord Knutsford it provoked only an unsympathetic and censorious approach. The Secretary of State regretted that Miss Colenso had not denounced violence more emphatically while painting so gloomy a view of the benefits the uSuthu might expect on submission. There is a tragic contrast in attitude evident here. Harriette wrote in deep concern hoping to keep open the possibility of reconciliation even in the gloomy circumstances of late July 1888 when a military advance on Ceza was in the offing. Knutsford responded with the disdain of a distant lord who had no personal involvement in the tragedy of Zululand.63
The projected attack on Ceza did not materialise. How influential Harriette's message was in persuading the uSuthu to surrender is not easy to determine. She was herself to claim that the promise of a fair trial had induced their submission but she advanced that argument both to ensure an equitable trial and to explain her own commitment to continuing efforts on their behalf. Though the uSuthu leaders received the message their own experience would have told them, as Harriette had, that however dedicated and unselfish was Colenso friendship, this could not guarantee fair treatment. It seems to the writer to be clear that the uSuthu did not in fact submit until it was inescapable that all other options were closed to them.
For the officials the problem was how to try, condemn and punish the uSuthu in order to vindicate themselves and simplify their future task of government. The problem for Harriette Colenso in particular was how to provide a defence for the uSuthu which might save them from conviction while challenging the officials and, by using all the opportunities available in regard to judicial procedures and public appeal, ensure that future enquiry and future decisions would rehabilitate the uSuthu and perhaps restore their position in Zululand. She persuaded Harry Escombe, a prominent Natal lawyer and ambitious Natal politician, to play the leading defence role. Others in that team were W.Y. Campbell, F.C. Dumat, R.C.A. Samuelson and George Burgess who was their shorthand writer.64
The point that Osborn and the resident magistrates should not sit in judgement on the uSuthu was conceded early, but not in time to prevent Osborn from hearing some cases in his Resident Commissioner and Chief Magistrate's court. One man, Nkhowane of the Nzuza, was condemned to death and executed in November 1888. He was found guilty of murder committed in March 1888 in the context of evictions and retaliation. Harriette Colenso was appalled, but her vigorous pleas for intervention were unavailing.65
For most of the impending cases Michael Gallwey, the Attorney-General of Natal, suggested that the three men who, he thought, were best qualified to sit as judges should temporarily take over the judicial functions of officials in Zululand. In London, Knutsford preferred to issue special commissions and to set up the Court of the Special Commissioners for Zululand. This was duly done on 16 October 1888 by Proclamation IV. Walter Wragg, the senior puisne judge of the Natal bench, Gert Rudolph and Eustace Fannin were the judges with the red-robed Walter Wragg as the President of the Court of the Special Commissioners.66 The Court was to meet in Eshowe, transforming the recently built warehouse of a store into a court room. It was to have the customary range of officials, prosecutor, registrar, interpreter etc. In the main it was to follow accepted procedures. The evidence was to be recorded in the form of President's Notes.
Treason and/or public violence was alleged against leading figures such as Dinuzulu ka Cetshwayo, Ndabuko ka Mapnde (full brother of Cetshwayo), Tshingane ka Mpande (half-brother of Cetshwayo), Somhlolo of the Biyela tribe and against Somkhele and other the coast chiefs. Dinuzulu was also charged with murder but the charge was withdrawn. Mpikwa confessed to the murder of Tonge, was convicted and sentenced to death although the sentence was later commuted to life imprisonment. Nsuguzonke was condemned to long imprisonment for the murder of a follower of Mnyamana in August 1888. Xibilili, eldest son of Somkhele and leader of his father's Falaza regiment, was sentenced to eight years' hard labour. He died in prison. Somkhele and the coast chiefs were condemned for public violence.67
The Court of the Special Commissioners for Zululand has left behind it a veritable morass of evidence. Detailed study and editing of the printed evidence, running to over a thousand pages in an official publication to which Harriette referred as the `black book',68 is an urgent need. Here it is best to avoid delving into the detail of individual cases. The main point is that the Court the Special Commissioners virtually did what the officials wanted it to do. It condemned leading uSuthu on charges of high treason and/or public violence.69 It proceeded against men who were charged with murder or culpable homicide, releasing some but condemning others. Nsuguzonke was condemned for culpable homicide. Mpikwa was condemned to death but his co-accused was released.70 The Court condemned Somkhele and the coast chiefs for public violence, tying itself into some embarrassment when it was discovered that, contrary to the principle that no man should be punished twice for the same offence, the men had already been sentenced to tribal fines.71 It condemned Xibilili on the charge of shooting at traders with a Martini Henry rifle, in an incident which cost the life of the trader Ashby.72 Of the greatest importance was the fact that it sentenced the three leading uSuthu, Dinuzulu, Ndabuko and Tshingane to terms of imprisonment: Ndabuko to fifteen years, Tshingane to twelve and Dinuzulu to ten.73 The prosecution sought to highlight evidence that told against the uSuthu especially in regard to their animosity towards officials. Curiously suggestions of Dutch involvement in the confrontations especially at Ceza were not emphasised.74 At the end of it all, on 27 April 1889, the officials and the judges might congratulate themselves on a task accomplished according to expectations. The men had been tried and convicted by due process of law.
On the whole the officials and Zibhebhu came out of the experience relatively unscathed. Havelock went on leave to England shortly after the trial and he did not return. There were suggestions that he was `promoted' to Ceylon in the sequel. He was probably glad not to return to a colony where he had been savaged by politicians and at risk at the hands of humanitarian critics. Indeed he had been summoned to give evidence at the Court of the Special Commissioners but he had evaded that summons.75 There had, admittedly, been one or two official casualties. A temporary magistrate who had inflicted illegal floggings was relieved from his position as temporary magistrate and left the service of the Natal colony.76 More seriously R.H. Addison, the magistrate in the crucial Ndwandwe area, was censured for his illegal practices in imposing floggings on men who had defied him.77 His explanation that, by Kafir law, the men might have been put to death was not acceptable to his superiors.78 But he survived the censure. He was removed from the Ndwandwe to the less intractable Nqutu district and was, in the richness of time, to emerge as the Chief Native Commissioner in Natal just after Union who, in 1908, had himself been appointed chief of the uSuthu following the later deposition of Dinuzulu.79 Perhaps the most disappointed man was Zibhebhu. He was not allowed to return to the Ndwandwe district but he had nevertheless been indulgently treated and had enjoyed moments of triumph over the uSuthu while the trials were in progress. Even he might hope that the officials who favoured and made use of him might yet find ways to secure his return to the Ndwandwe: as they had tried to do while the uSuthu chiefs were undergoing trial.80 There had, in fact, been a show of justice and the official will had been done.Harriette Colenso and those who were associated with her in the defence of the uSuthu had little enough to show for expensive and strenuous efforts. Harriette herself contributed at least j3000 from Colenso family funds to the defence and her leading associate Harry Escombe apparently contributed j500.81 What they had done was to ensure that the course of injustice should not run smooth. The condemnation of the uSuthu had not been a complete walk-over for the officials, and something had been achieved by using the judicial procedures that had been followed to cast suspicion on the proceedings of the Court of the Special Commissioners. As a relatively early treason trial the Court of the Special Commissioners might be cited as both an example and a warning. Something can be done by using judicial procedures, but the chances of success are limited. Ndabuko had made his statement from the dock.82 The main defence lawyer, Harry Escombe, though he was not on their behalf, writing copiously to the Colonial Office when he was in London at the end of 1888 and early 1889 and addressing the court at length.83 He seems to have been a man who was given to pyrotechnical oratorical displays.84 Escombe had defended Dinuzulu leaving it to his colleagues W.Y. Campbell and F.C. Dumat to appear for the other accused.
Throughout the conduct of the trials the purpose of the defence was to indict the arbitrary actions of the officials in Zululand and the favouritism they had shown to Zibhebhu. They scored their points in drawing attention to the suspicion or the certainty of illegal actions Addison was accused of shooting at a uSuthu youth - Langa the son of Logotwayo - with pellets `as though he were a partridge', and the Notes of evidence of the President contain a diagram of the shot extracted from the back of Langa.85 There was no follow-up on this charge, but his illegal use of flogging and torture wad duly attested. Although Addison did not pay a heavy penalty, the Secretary of State issued a circular that flogging was not to be used as a punishment for contempt of court.86 A second main theme in the defence was to seek to demonstrate both that the officials had shown undue favouritism towards Zibhebhu and that the main animosity of the uSuthu was, understandably, directed at the Mandhlakazi. There they were often blocked. The Court would not readily allow evidence to be led about events of the long past - or even the past - that preceded the actual disturbances nor would it admit the rich Blue Book documentation that Escombe wanted to have submitted that would draw attention inter alia to Havelock's own misgivings about the way in which Zibhebhu's restoration had been managed - or mismanaged. What Escombe did was to have placed on record all and each of the documents that he was refused permission to bring to the attention of the Court.87 Wherever possible the defence lawyers drew attention to what militated against a fair trial: failure to translate the indictment, lack of time for preparation, lack of legal representation, the intimidation of witnesses apparent, for example, in the arrest of Mafukwini, Dinuzulu's messenger, when he came to Eshowe to give evidence, the failure to protect witnesses against self-incrimination (in contrast to the provisions of the contemporary Parnell Commission in London), the admissions of hearsay evidence, and the exclusion of other evidence on the grounds that what happened prior to 20 April 1888 was outside the range of the court.88 Some points appeared merely technical but were, in fact, backed by a deeper purpose. When the defence argued that Havenlock, having by proclamation constituted one set of courts, lacked the legal power to constitute another i.e. the Court of the Special Commissioners, what they were arguing was that no man can be judged of his own cause for, they contended, no court appointed by the Governor could be expected to bring in a verdict reflecting badly on the administration that he headed.89 The defence wanted a more general and impartial enquiry. The defence was able to allege the flouting of two highly respected judicial principles. One was that no man should be punished twice for the same offence, the point for which Thomas A Becket had contended in the 12th century. Somkhele and the coast chiefs had already been fined by their magistrate for the offence for which they were arranged before the Special Court and restitution of some of the cattle was tardy and inadequate reparation.90 In addition, there was the question of whether or not the trials of the main uSuthu leaders had been prejudiced by the fact that the case against Somholo of the Biyela, was heard first and conducted in such a way that the guilt of the main uSuthu leaders - especially Tshingane - was assumed.91
In much of what the defence argued and submitted the purpose seems plain. They were appealing beyond the Court of the Special Commissioners, often via the Aborigines Protection Society, to the Privy Council, to the Colonial Office and to interested members of parliament - in fact, to all who shared an essential feature of the British self-image. To Kipling some years later the British were essentially `within the law'. To such men it was important that the accused should be tried not only by due process of law but also in circumstances that guaranteed impartiality and where respected judicial conventions were observed.92
In the interests of the uSuthu prisoners there were appeals to the Judicial Committee of the Privy Council as well as to the wider audience of the British public. The attention of the Judicial Committee of the Privy Council was drawn both to a decision of the Natal Supreme Court and to the decision of the Court of the Special Commissioners against Dinuzulu. The petition for leave to appeal against a decision of the Natal Supreme Court arose from what had happened when on 15 November Dinuzulu turned up at Bishopstowe and was arrested in Natal. There followed a most extraordinary episode of legalistic bungling on the part of the Natal officials. First they issued a warrant for Dinuzulu's arrest in terms of the Fugitive Offenders Act 1881, an imperial statute, and one which was, arguably, well adapted to Dinuzulu's position. The snag for the Natal officials, however, was that it accorded Dinuzulu certain rights which it was inconvenient to the officials that he should exercise. One was the right to a forthnight's delay. An attempt was then made to persuade Dinuzulu to sign a document in which he agreed to his removal from Natal to Eshowe, but he repudiated his agreement to this. The officials then had recourse to a local colonial statute, the Colonial Prisoners Removal Act 1880, which was really appropriate only to a situation where a prisoner was transported across Natal from one area of authority to another. It did not really fit Dinuzulu's situation and, initially, with Agnes Colenso working with local lawyers, the Natal Supreme Court agreed to a temporary interdict which forbad his removal. Later, however, the Natal Supreme Court upheld an appeal against their earlier interdict on his removal and refused Dinuzulu's lawyers the right to appeal. Dinuzulu was then whisked off to Eshowe as fast as eager officials and an early train could carry him. The reaction of the uSuthu defence lawyers at this point was to petition the Judicial Committee of the Privy Council for leave to appeal against the second Natal Supreme Court decision. The petition was heard in January 1889 and was successful. The Judicial Committee of the Privy Council granted leave to appeal, but that was all. The Judicial Committee did not put a stop to the proceedings at Eshowe.93 The decision gave Harry Escombe, a pro-Responsible Government politician, the anticipated publicity for the criticisms of Imperial officials that he was urging, but little more.94 The proceedings at Eshowe had been interrupted, but the interruption was due to the dramatic telegrams that reached London. The telegram came via F.R. Statham, then editor of the Natal Witness, from W.Y. Campbell who, in the absence of Escombe, was the main legal representative for the uSuthu at Eshowe where F.C. Dumat was his assistant, and Harriette Colenso the most committed of all the uSuthu defenders. Campbell protested with dramatic aplomb against the speed of the proceedings at Eshowe which - he claimed - prejudiced the uSuthu prisoners and withdrew from the defence of Ndabuko.95 The Colonial Office instructed Havelock that the proceedings should be interrupted and, with Wragg discovering that he could not be absent from Natal for longer than a month, (a ridiculous face-saving subterfuge), the Court suspended its operations pending the outcome of the uSuthu petition for leave to appeal to the Judicial Committee of the Privy Council.96 When permission to appeal was granted, the Lord Chancellor observed that anyone who proceeded to try Dinuzulu before the outcome of the appeal `would risk a grave dereliction of duty and responsibility'.97 The uSuthu defenders stressed this admonition, but the Colonial Office was reassured by the advice of the Law Officers of the Crown. In their view even a successful outcome for the projected appeal would not invalidate the finding of the Court of the Special Coommissioners, and its proceedings need not be suspended longer. The Court of the Special Commissioners resumed its hearings in Eshowe whiter Escombe must go if he was to defend Dinuzulu. The cases were heard, the verdicts were reached and the sentences imposed.98
In fact, the uSuthu did not proceed with the appeal which the January 1889 decision had made possible. In July 1889 the Privy Council was asked to waive the j300 where its earlier decision had insisted upon if the appeal were to be lodged. This it refused. A year later the legal firm of Sutton and Ommaney informed the Crown Agents (who represented the Crown Colonies) that it had been decided not to continue with the appeal.99
But this was not the whole of the story of the Privy Council's concern with the issues of justice in Zululand. A Zulu Defence Committee and a Zulu Defence Fund had been founded in London. Funds were collected. These funds were used to finance an appeal to the Judicial Committee of the Privy Council in the name of Dinuzulu against the Attorney-General of Zululand. That appeal was not very convincingly argued and it was decisively rejected. What Mr Rigby, the legal representative of Dinuzulu, did was to put before the Judicial Committee of the Privy Council all the arguments about the legal competence and the proceedings of the Court of the Special Commissioners which Escombe had urged before the Court of the Special Commissioners. Fox-Bourne, the Secretary of the Aborigines Protection Society, set out the grounds of appeal to the press before the hearing was held.
But the Judicial Committee gave these arguments short shift. They would not give a hearing to pleas that rested on technicalities as to the procedure of the Court of the Special Commissioners. To encourage the idea that technical objections and procedural points would warrant the intervention of the Judicial Committee would, so the Committee ruled, subvert criminal jurisdiction throughout the Colonies. In addition, the Judicial Committee would have no truck with the argument that the Court of the Special Commissioners was invalidated because Havelock did not have the power to appoint it. Havelock, the Governor and therefore the representative of the Queen, had full power to create a court through the exercise of the prerogative. It may be that the grounds for the appeal were poorly chosen. Certainly the Judicial Committee did not consider that a grave miscarriage of justice had been brought to its attention, and did not intervene.100
The agitation of the Defence representatives was not entirely unavailing. The Colonial Office promised that the sentences should be held in suspense until it had considered the cases.101 The Notes of Evidence were prepared for printing in the form of the `Black Book',102 fifty for the Library of the House of Commons, fifty for the House of Lords. How many and how well colonial office officials studied this copious record is somewhat uncertain, but Knutsford, himself a lawyer, did give attention to the report and the recommendations of the Judge President. Some changes were made, usually in accordance with the Judge President's recommendations. The convicted murdered Mpikwa, for example, had his sentence commuted to life imprisonment, and the sentences of imprisonment on the coast chiefs were to be reduced, with part commuted to a fine. For the leading uSuthu figures, however, there was no real change.103 Officials had long wanted Dinuzulu out of the way even when Zululand, at least for a time, when it was decided that they should serve their sentences in St Helena. It was a two-faced decision: it gave the officials what they wanted, while wearing the appearance of mitigating the severity of the sentence of imprisonment because the exiles would be more leniently treated on St Helena. They were removed to St Helena early in 1890.104
Perhaps the most glaring mockery of justice in the whole episode was the contrast between the indulgence shown to Zibhebhu and the animosity towards Dinuzulu. Zibhebhu had charges to answer in regard to illegal raiding in northern Zululand during 1888 when he attacked Tonga chiefs Sibonda and Ncamana, but he was exculpated on the grounds that he probably thought he was acting under the orders of Smyth who had taken him to the north and then left him there with a plentiful supply of ammunition with which to do damage. More serious was the question of the murder of Msushwane which should have been heard before the Special Court. It was not. Officials dragged their feet about the investigation of charges against Zibhebhu who behaved, while the trials of the uSuthu were on, as though he were a free man. He was then put through a perfunctionary preliminary investigation where the presiding magistrate, to Gallwey's alarm, found that there was no case for him to answer. In theory, it was still possible that the Zululand Attorney-General might institute a move for his re-arrest and trial. It was clear, however, that no action would be taken against him.105 Knutsford explained that Zibhebhu's action could be regarded simply as an act of warfare and in accordance with the usages of `South African native wars'. No such indulgent reasoning was admitted for Dinuzulu.106
The uSuthu defence team did not ensure that justice was done but their efforts at least cast dark shadows of doubt on the way judgements had been reached. Some contemporaries were derisive and later historians are even more suspicious.107 As a result of the uSuthu defenders activities there is a massive record of the whole episode. There is much correspondence in the official files, in the Colenso papers and in the Anti-Slavery Papers. There is the Hansard record of questions that were asked. Frequent Blue Books were published and are indications of the measure of parliamentary interest.108 In addition, there i s the formidable Black Book which contains the President's notes of evidence and the record of the Privy Council proceedings - Harriette Colenso - key figure in the uSuthu defence kept the watch, and secured the record.
In the long perspective of South African history the Court of the Special Commissioners for Zululand contributed to the emergence of a white dominated society. This is not a new view. What is novel and promising is the realisation that the apparently futile efforts of a woman like Harriette Colenso maintained the latent vitality of ideas of genuine justice which, it is to be hoped, will thrive in the new South Africa to the benefit of all.
