The 1874 Trial of Langalibalele of the Amahlubi
M Carnelley*
PER / PELJ - Pioneer in peer-reviewed, open access online law publications
Author Marita Carnelley
Affiliation North-West University South Africa
Email Marita.Carnelley@nwu.ac.za
Date Submitted 3 May 2023
Date Revised 14 August 2023
Date Accepted 14 August 2023
Date Published 23 November 2023
Editor Prof C Rautenbach
Guest Editors Prof M Carnelley and Mr P Bothma
Journal Editor Prof C Rautenbach
How to cite this contribution
Carnelley M "The 1874 Trial of Langalibalele of the Amahlubi" PER / PELJ 2023(26) - DOI http://dx.doi.org/10.17159/1727-3781/2023/v26i0a16086
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2023/v26i0a16086
Abstract
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This article aims to discuss the actions leading up to the trial, and the 1874 Langalibalele trial itself, by including both the perspectives of Langalibalele and the colonial government. It sets out how the acquisition of guns from the diamond fields by the flourishing and largely independent Hlubi, their Chief Langalibalele's failure to adhere to a meeting request with colonial government officials, and the killing of three British soldiers outside the colony by fleeing Hlubi created the opportunity for nervous colonists and punitive leaders in a struggling colony to escalate the unfortunate events into the slaughter of hundreds of Africans and the destruction of their property without any negative personal consequences. The results for the colonists were overwhelmingly positive: access to more land, the availability of cheap labour and improved security. Although the colonial government had the support of the colonists, questions were raised in England about the excessive bloodshed of the Hlubi and Putini tribes. After the capture of Langalibalele, his trial was an opportunity for the justification of the colonists’ actions. The authorities resorted to deceitful methods and a sham and unlawful trial to ensure the intended outcome, that Langalibalele was found guilty. The article highlights the problems with the trial itself. These include that the Lieutenant-Governor had no power to establish an African court and that the choice of law was inappropriate and contrary to applicable legislation. The law and procedure applied during the trial did not adhere to any specific legal system but was a convenient amalgamation of African and Natal law. Most of the members of the bench were not independent, were clearly prejudiced and were hostile towards the accused. The charges were not in accordance with the chosen law, they were unclear, and the accused's plea explanation was erroneously interpreted as a plea of guilty. He was found guilty before any evidence was led. He had no legal representation, no right to cross-examine witnesses and no right to call his own witnesses. The evidence did not support the crimes he was accused of committing and the punishment imposed was unlawful and exceeded the powers of the court. The appeal process was fraught with intimidation and those hearing the appeal were involved in the original trial. Even after this travesty of justice had been exposed in England and discussed in Parliament, justice was not done for those who suffered the most (Langalibalele, the Hlubi and the Putini). Although Langalibalele was allowed to leave Robben Island, he was not restored as chief, the Hlubi's land and property were not restored, and the Putini did not receive their full compensation. There were some negative personal and career consequences for the unfortunate scapegoat (Pine), but also for the whistle-blower (Colenso) and the individual who unsuccessfully fought for reparations for the Putini reparations (Dunsford). The main conspirators, however, were rewarded with career advances and imperial awards (the Shepstone brothers). This saga emphasises how "gun control formed a large part of an emerging struggle over land and citizenship" and the underhand methods and exceptional power the British used to cement imperial rule. The discovery of diamonds inland increased the economic potential and political importance of the colony, resulting in better security and a more structured, but less autonomous regulatory system for Africans, their chiefs, customs and laws. |
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Keywords
Trial of Langalibalele; Hlubi; Putini; Natal Colony; British Imperialism
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1.1 Context
Most versions of the events in the Natal Colony leading up to the 1874 trial of Langalibalele, the trial itself and its aftermath in both Natal and England are viewed either from the side of the British occupiers or alternatively that of the supporters of Langalibalele. Informing these differences are the underlying perspectives about the place of Africans in British imperialism, their independence, and the role of African law and custom in the settlers' overarching Western legal system. It is one of the first examples of the underhand British misuse of legal processes to subdue and control the African population.
1
Marita Carnelley. BA LLB (US) LLM (UNISA) PhD (Amsterdam). Professor of Law, North-West University, South Africa. Email: marita.carnelley@nwu.ac.za. ORCID: https://orcid.org/0000-0001-8255-8902. 1 Lobban Imperial Incarceration 121; Colenso 2011 African Research and Documentation 3. 2 Colenso Langalibalele and the Amahlubi Tribe. This could be regarded as a "minority report" (Mokoena 2019 Journal of African History 68).
This article aims to honour Professor Willemien du Plessis by discussing these events and by incorporating both sides of the narrative. The focus is ultimately on the trial itself, highlighting how the principles of a right to a fair trial at the time were blatantly violated at the altar of political expediency and how the trial eventually impacted on the various role players, the Hlubi tribe and the future of the colony in the British empire.
1.2 The background to the 1873 Natal Colony and the main protagonists
A group of economically frustrated white settlers had to live in close proximity to a large, comparatively independent African population, that bred the particular racial animosity and tension so characteristic of Natal's history.
3
3 Guy Heretic 196.
It was the time of British colonisation in Southern Africa with Natal being annexed in 1843 and becoming a British colony in 1856.
4
4 Letters Patent (Charter of Natal), 15 July 1856. 5 Guy Heretic 194; Guest Langalibalele: The Crisis in Natal 12.
Africans
6
6 Guy Heretic 194. 7 Storey Guns, Race and Power 147. This policy, ascribed to the SNA Theophilus Shepstone, was controversial in the eyes of the settlers, as much of the fertile land remained in African hands (Storey Guns, Race and Power 147; Guest Langalibalele: The Crisis in Natal 20). 8 Colenso 2011 African Research and Documentation 4; Guy Heretic 195. 9 Lobban Imperial Incarceration 80.
The colonial system artificially retained tribal customs and structures,
10
10 Guest Langalibalele: The Crisis in Natal 18. 11 Keith and Co "Minutes" (hereafter Minutes of the Langalibalele Trial) 33. 12 Minutes of the Langalibalele Trial 33. 13 Minutes of the Langalibalele Trial 33.
The imperial policy was mainly hands-off and marked by "indecision and hesitancy".
14
14 Guy Heretic 221. 15 Pearse Barrier of Spears 229. 16 Guy Heretic 194, 196; Guest Langalibalele: The Crisis in Natal 12. 17 Guy Heretic 194. 18 Slater 1974 Seminar Papers 42. Isibhalo was a forced six-month labour system whereby chiefs had to provide one labourer per 11 huts per year with pay (Lambert 1995 Journal of Southern African Studies 280; Wright and Manson Hlubi 41). 19 Storey Guns, Race and Power 148; Wright and Manson Hlubi 47.
In 1873 Benjamin Pine was reappointed as Lt-Gov and Supreme Chief of the Zulus.
20
20 Pine's career was in the British Colonial Services, and he was a Lt-Gov in Natal twice: from April 1850 – March 1955 for the first time and July 1872 – April 1875 for the second time with other colonial appointments in Australia and the Caribbean in between. (Luscombe 1997 www.britishempire.co.uk/maproom/antigua/antigua administrators.htm; Luscombe 1997 https://www.britishempire.co.uk/maproom/ goldcoast/goldcoastadmin.htm; Luscombe 1997 www.britishempire.co.uk/ maproom/leewardislands/leewardislandsadmin.htm; Luscombe 1997 www.britishempire.co.uk/maproom/natal/nataladmin.htm. 21 Minutes of the Langalibalele Trial 1. 22 Shepstone came to Natal as a public servant in 1845, first as the Diplomatic Agent to the local tribes, and from 1856 as SNA (Guest Langalibalele: The Crisis in Natal 15). 23 Guest Langalibalele: The Crisis in Natal 15. The colonial government regarded him as the "foremost authority … on African matters …" (Meredith Diamonds, Gold and War 67).
Langalibalele
24
24 He was born circa 1818 and died in 1889. He was regarded as a rainmaker (Pearse Barrier of Spears 226), also referred to as an Inyanga or expert witch doctor (Pearse Barrier of Spears 252) or a "sorcerer" (Bergtheil 1875 Journal of the Society of Arts 481). His name was described as meaning "the sun is hot" in IsiHlubi (Pearse Barrier of Spears 226), "the sun is killing" (Storey Guns, Race and Power 145) or "the glaring sun" (Morris Washing of the Spears 165). The colonials called him "Old Longbelly" (Pearse Barrier of Spears 226). 25 Wright and Manson Hlubi 442; Guy Heretic 197; Morris Washing of the Spears 216. 26 Pearse Barrier of Spears 226. 27 McClendon White Chief, Black Lords 94; Keith and Co "Introduction" iii; Colenso Langalibalele and the Amahlubi Tribe 1. 28 Colenso noted, though, that this was not done in the case of Langalibalele when he moved into the colony: The practice at the time was that although refugees would be safe in the colony, their cattle belonged to the Supreme Chief and would be restored to the place from which they originated (Colenso Langalibalele and the Amahlubi Tribe 5). 29 Wright and Manson Hlubi 38. 30 Colenso Langalibalele and the Amahlubi Tribe 13; Keith and Co "Introduction" v; Cox Life of John Williams Colenso 320. 31 Storey Guns, Race and Power 149; Guest Langalibalele: The Crisis in Natal 19-20. 32 Guy Heretic 199; McClendon White Chief, Black Lords 84; Herd Bent Pine 60. 33 Wright and Manson Hlubi 50.
364 km2 extended to more than 700 km2.
34
34 Wright and Manson Hlubi 50. 35 Lambert 1995 Journal of Southern African Studies 280; Guy Heretic 197; McClendon White Chief, Black Lords 84.
The relationship between the British and Langalibalele was soured through a series of disagreements. On the one hand, Langalibalele distrusted the colonial authorities after the deceitful behaviour of John Shepstone during the 1858 so-called Matshana affair, which resulted in the death of dozens of Africans.
36
36 Langalibalele cooperated with the colonial authorities by supplying warriors for a (perceived) peaceful excursion to Chief Mashana. John Shepstone (the brother of the SNA and subsequently the prosecutor in the Langalibalele trial) lured Matshana into a trap, persuading him and the members of his tribe to leave their weapons outside for this peaceful meeting, while Shepstone and his men concealed firearms. This resulted in the death of thirty of Matshana's tribesmen (Lobban Imperial Incarceration 83; Guy Heretic 200; Guest Langalibalele: The Crisis in Natal 37; Mokoena 2019 Journal of African History 74-75; Cox Life of John Williams Colenso 367). 37 Guy Heretic 199; Wright and Manson Hlubi 48. Pearse notes that he was regarded as mauvias sujet even before the trial (Pearse Barrier of Spears 227). 38 His move from his original settlement at Mnambithi (subsequently allocated to white farmers) to the location between the Bushmans and Bloukransrivers had to be postponed as he insisted on first reaping his crops (Colenso Langalibalele and the Amahlubi Tribe 10 clarifying the reason for the delay, not noted in the Keith and Co "Introduction" iv). This ended in the payment of a fine of 40 cattle (Wright and Manson Hlubi 38-39, 41; Guy Heretic 197; Guest Langalibalele: The Crisis in Natal 24; Herd Bent Pine 4). 39 Guest Langalibalele: The Crisis in Natal 28; McClendon White Chief, Black Lords 85. Langalibalele refused to provide labour after his men were not paid for their participation in British military excursions (Wright and Manson Hlubi 41-43; Herd Bent Pine 7; Lambert 1995 Journal of Southern African Studies 280). 40 Wright and Manson Hlubi 48-49. 41 In 1855 he originally refused but was later forced to follow the culling instructions of the colonial authorities to curb cattle lung sickness. Some of the members of his tribe were tried and sentenced for their resistance (Wright and Manson Hlubi 43; Guest Langalibalele: The Crisis in Natal 27). 42 Langalibalele refused to cooperate with the colonial government's failed attempt to count African-owned cattle (Wright and Manson Hlubi 41-43).
of cattle.
43
43 The British argued that some members of the tribe hastened their weddings before the law came into effect (Herd Bent Pine 9; McClendon White Chief, Black Lords 89; Wright and Manson Hlubi 48). The colonial authority viewed this as an attempt to "defraud the Government of its dues" (McClendon White Chief, Black Lords 85; Lt-Gov in the Minutes of the Langalibalele Trial 34; Wright and Manson Hlubi 48). Langalibalele was fined £10 (Colenso Langalibalele and the Amahlubi Tribe 16). Colenso, however, argued that this interpretation was nonsensical as the number of animals paid for lobola in the Hlubi was less than the number set by the colonial government and that they had a tradition of marrying large groups of girls of marriageable age together (and not individually). In addition, non-adherence to the regulation would negatively impact on the marriage fee income of the Chief (Colenso Langalibalele and the Amahlubi Tribe 14-15. However, see Wright and Manson Hlubi 48).
1.3 Guns
From a colonial perspective, Law 5 of 1859 prevented Africans from possessing firearms without the Lt-Gov's written permission.
44
44 Section 2 of Law 5 of 1859; Pearse Barrier of Spears 227; Fox Bourne Blacks and Whites in South Africa 26; Dominy 1991 Natal Museum Journal of Humanities 49; Lobban Imperial Incarceration 84; Guest Langalibalele: The Crisis in Natal 34; Wright and Manson Hlubi 42, 51. 45 Wright and Manson Hlubi 52. 46 Guest Langalibalele: The Crisis in Natal 33. 47 This contrasted with the official colonial government version that obtaining registration was not problematic if the correct procedure was followed (Storey Guns, Race and Power 152; McClendon White Chief, Black Lords 92; Keith and Co "Introduction" ix; Colenso Langalibalele and the Amahlubi Tribe 20). 48 Colenso Langalibalele and the Amahlubi Tribe 20; Morris Washing of the Spears 216; Storey Guns, Race and Power 149; Cox Life of John Williams Colenso 319. See Colenso Langalibalele and the Amahlubi Tribe 19-20 for a description of a letter that William Shepstone supplied to one of his employees to have his gun registered. 49 Morris Washing of the Spears 216; Cox Life of John Williams Colenso 319.
In the 1870s during the Kimberley diamond rush guns became easier to obtain and were highly prized, including by the Hlubi labourers who received guns in part payment for their services in the mines.
50
50 Storey Guns, Race and Power 149; Morris Washing of the Spears 216; Cox Life of John Williams Colenso 317; Colenso Langalibalele and the Amahlubi Tribe 18;
Dominy 1991 Natal Museum Journal of Humanities 49; Turrell 1981 Journal of Southern African Studies 210, 217.
brought back to Natal.
51
51 Dodds A Cradle of Rivers 47. 52 Statistics of the time showed that in 1871 only one gun was registered. In 1872 13 were registered, of which 9 were those of the Hlubi. In 1873 7 were registered, of which 4 were from the Hlubi (Colenso Langalibalele and the Amahlubi Tribe 29). Macfarlane did not seem to seek out unregistered guns until later in 1873 (Colenso Langalibalele and the Amahlubi Tribe 30). Permits were even suspended in the early 1870s for a short period as there was uncertainty about how to deal with the new influx of guns (Guest Langalibalele: The Crisis in Natal 32). 53 Storey Guns, Race and Power 149.
The increase in the trade of guns
54
54 Guest Langalibalele: The Crisis in Natal 32. 55 Morris Washing of the Spears 216. 56 Keith and Co "Introduction" ix; Storey Guns, Race and Power 149. 57 Minutes of the Langalibalele Trial 3; Colenso Langalibalele and the Amahlubi Tribe 22.
1.4 Summons to appear before the SNA and the immediate consequences
… the vessel in which your offences are kept is overflowing.
58
58 Magistrate Macfarlane's sentiment in a letter to Langalibalele (Wright and Manson Hlubi 52; McClendon White Chief, Black Lords 97).
In early March 1873 John Macfarlane, the Escort Magistrate, singled Langalibalele and the Hlubi out
59
59 Cox Life of John Williams Colenso 320. Other tribes under Macfarlane such as the Zikali were known to have large numbers of unregistered guns (Colenso Langalibalele and the Amahlubi Tribe 17). 60 It is unclear why he was singled out, but presumably the argument was that if they could get the perceived troublesome Langalibalele to adhere, the other tribes would follow (Wright and Manson Hlubi 52). The Act was followed up with a circular on 14 February 1872 directing magistrates to conform with the Act (Minutes of the Langalibalele Trial 34).
Langalibalele was requested to ensure the registration of the Hlubi guns but was preoccupied.
61
61 Langalibalele's elder brother died in late 1872 or early 1873, to the alarm of the tribe. He had planned a series of ceremonies to be held from the end of February 1872 to placate the tribe (Wright and Manson Hlubi 51). 62 Dodds A Cradle of Rivers 47; Dominy 1991 Natal Museum Journal of Humanities 49; Guy Heretic 199.
did not know which of his 2 000 men spread over a large area had firearms and even if he had known, he could not enforce the registration.
63
63 Wright and Manson Hlubi 51; Guy Heretic 199; Morris Washing of the Spears 216. Langalibalele complained that it was like "counting the maggots on a piece of meat" (McClendon White Chief, Black Lords 95). Colenso noted that the tribe was around 10 000 souls living in an area "as large as the county of Middlesex" (Colenso Langalibalele and the Amahlubi Tribe 25). 64 Storey Guns, Race and Power 151; Colenso Langalibalele and the Amahlubi Tribe 28. He also notes that the issue caused internal disagreements in the tribe mainly on generational grounds (Storey Guns, Race and Power 152, 5). The younger gun-owning tribe members became more confident as the guns added to their prestige (McClendon White Chief, Black Lords 84, 96). 65 Wright and Manson Hlubi 52. 66 Wright and Manson Hlubi 51. 67 Herd Bent Pine 11. 68 Wright and Manson Hlubi 51-52; Herd Bent Pine 9; Lobban Imperial Incarceration 84.
Between April and October 1873 Langalibalele was summonsed numerous times to appear personally before the SNA.
69
69 Pearse Barrier of Spears 228. 70 Wright and Manson Hlubi 53-34. 71 Wright and Manson Hlubi 53; Herd Bent Pine 11. 72 Colenso Langalibalele and the Amahlubi Tribe 50. 73 Wright and Manson Hlubi 52; Colenso Langalibalele and the Amahlubi Tribe 9. 74 There are two versions of the clothing: one, that he was stripped naked (Herd Bent Pine 12); the other that he was asked to remove a topcoat to see whether he was concealing a gun (McClendon White Chief, Black Lords 99). As will be noted later, both versions served before the trial.
was denied.
75
75 Storey Guns, Race and Power 155; Guy Heretic 200; McClendon White Chief, Black Lords 82; Herd Bent Pine 11. 76 Wright and Manson Hlubi 57. 77 The reason for the time lapse was that the SNA left for Zululand at the end of July to attend the coronation of Cetywayo as King of the Zulus and retuned only on 16 September (Colenso Langalibalele and the Amahlubi Tribe 56). 78 Wright and Manson Hlubi 54. Again the messengers were required to wait although they were fed well (Keith and Co "Introduction" xv noted 17 days, whilst Colenso noted that it could have been only 10 days (Colenso Langalibalele and the Amahlubi Tribe 64)). The group of 20 men were fed with five head of cattle from the Hlubi and Putini (Colenso Langalibalele and the Amahlubi Tribe 93). 79 Colenso Langalibalele and the Amahlubi Tribe 65; Wright and Manson Hlubi 56; McClendon White Chief, Black Lords 98; Cox Life of John Williams Colenso 321; Herd Bent Pine 12.
It remained unclear whether his refusals were wilful (as the British argued)
80
80 Bergtheil, one of the largest colonial landowners (Slater 1974 Seminar Papers 43) argued that his refusal was part of a deliberate plan "designed for resistance and defiance" that could later include other tribes in the area (Bergtheil 1875 Journal of the Society of Arts 481). 81 Wright and Manson Hlubi 53; Cox Life of John Williams Colenso 320; Colenso Langalibalele and the Amahlubi Tribe 52-53. Dominy 1991 Natal Museum Journal of Humanities 49 based Langalibalele's hesitancy on Shepstone's history of "treacherous behaviour" in the Matyana. Also see Colenso Langalibalele and the Amahlubi Tribe 81-82; Pearse Barrier of Spears 228-229; Herd Bent Pine 85-86; Storey Guns, Race and Power 154; Morris Washing of the Spears 225. In addition, Langalibalele's brother was killed when summoned to attend a meeting with Dingane (Guy Heretic 200; Colenso Langalibalele and the Amahlubi Tribe 2).
But his open defiance and independent spirit,
82
82 Wright and Manson Hlubi 52; Mokoena 2019 Journal of African History 77; Guest Langalibalele: The Crisis in Natal 26. 83 Lambert 1995 Journal of Southern African Studies 281. There were some suggestions that he was colluding with other chiefs to do the same (Guest Langalibalele: The Crisis in Natal 38). 84 Herd Bent Pine 10.
government.
85
85 Morris Washing of the Spears 216. 86 Pearse Barrier of Spears 229; McClendon White Chief, Black Lords 82. 87 Morris Washing of the Spears 217; Lobban Imperial Incarceration 85; McClendon White Chief, Black Lords 113. 88 Bergtheil 1875 Journal of the Society of Arts 480; McClendon White Chief, Black Lords 92. 89 Guy Heretic 200; Wright and Manson Hlubi 60; Guest Langalibalele: The Crisis in Natal 22, 37; Pearse Barrier of Spears 229; Herd Bent Pine 13.
On 27 October 1873, on the evidence presented by Lt-Gov Pine of Langalibalele's rebellious conduct, the Executive Council
90
90 Herd Bent Pine 14; Wright and Manson Hlubi 63. 91 Guy Heretic 201; Wright and Manson Hlubi 59; Herd Bent Pine 19. 92 Wright and Manson Hlubi 62.
Having expected retribution for his refusals, Langalibalele earlier started preparations to flee.
93
93 Rumours about his intended flight had already surfaced in July 1873 (Wright and Manson Hlubi 54; Guest Langalibalele: The Crisis in Natal 39). 94 Langalibalele had family bonds with the Putini (Lambert 1995 Journal of Southern African Studies 280; Herd Bent Pine 5). He was the son of Putini's sister (Keith and Co "Introduction" iii; Colenso Langalibalele and the Amahlubi Tribe 4; Wright and Manson Hlubi 59; Morris Washing of the Spears 217; Guest Langalibalele: The Crisis in Natal 39). The tribe is also referred to as the Putili (Minutes of the Langalibalele Trial 33; Preston South African Diaries 115) and the Ngwe (Wright and Manson Hlubi 37). 95 Guy Heretic 200. 96 Guest Langalibalele: The Crisis in Natal 38; Herd Bent Pine 12. The SNA noted that the Basotho relayed Langalibalele's request to the Cape Government, which in turn notified the colonial government in Natal (Keith and Co "Introduction" xi; Colenso Langalibalele and the Amahlubi Tribe 57; Pearse Barrier of Spears 228; Herd Bent Pine 13). 97 Colenso Langalibalele and the Amahlubi Tribe 57-61.
1.5 Bushman's Pass Incident
The decision to quit the tribal area was prompted by Langalibalele's fear of the vengeful spirit which infected the colonial administration, he declared. And if the Government, in its turn, seriously believed the amaHlubi were threatening the security and peace of the colony why not let them withdraw unhindered to more distant pastures, thus removing the threat? It was deplorable that Langalibalele had been kept in ignorance of his right to remove his tribe in peace, provided he obtained official permission to do so.
98
98 Herd Bent Pine 66, paraphrasing the opinion of Colenso at the time. The retreat of the tribe was also subsequently highlighted in the House of Lords by the Lord Chancellor (UK Parliament Hansard House of Lords 12 April 1875).
Langalibalele fled with some of the members of his tribe at the end of October 1873, whilst others followed with the last cattle within days.
99
99 Wright and Manson Hlubi 60-61; Herd Bent Pine 63. 100 Herd Bent Pine 21. This pass is now called the Langalibalele Pass. 101 Dodds A Cradle of Rivers 48; Cox Life of John Williams Colenso 336; Morris Washing of the Spears 221-222. 102 Keith and Co "Introduction" xxi. 103 Part of the blame was placed on faulty maps, lack of knowledge of the terrain, a breakdown of morale as there was a lack of packhorses carrying ammunition and provisions early in the expedition, and exhaustion leading to some falling behind and fleeing when the first shots were fired (Pearse Barrier of Spears 229, 233-234, 239-240, 242-243). 104 As the use of guns was prohibited, the Carbineers had to use an assegai to kill the animal, and, in the process they stabbed several Hlubi cattle, to the anger of the tribesmen (Herd Bent Pine 25). 105 Herd Bent Pine 24.
Dunford requested the Hlubi to return to Natal, but Mabuhle refused.
106
106 Herd Bent Pine 26. 107 Herd Bent Pine 27. Dunford himself later noted that the younger Hlubi were (unsuccessfully) restrained by the elder tribesmen (McClendon White Chief, Black Lords 99-100). 108 Herd Bent Pine 29.
the death of three British troops and two British loyalists.
109
109 Bourquin 1985 Military History Journal 9-11; Dodds A Cradle of Rivers 48; Wright and Manson Hlubi 66, 69; McClendon White Chief, Black Lords 100. For a full discussion of the failed operation, see Pearse Barrier of Spears 230-242 onwards and Morris Washing of the Spears 218-222. A Military Court of Enquiry was established and found that the Volunteers were guilty of "disorganised and precipitate retreat, with, however, mitigating circumstances" (Pearse Barrier of Spears 244). 110 Lobban Imperial Incarceration 85; McClendon White Chief, Black Lords 99.
Langalibalele was saddened by the loss of life when he heard about it a few days later
111
111 Herd Bent Pine 30. 112 Bourquin 1985 Military History Journal 12, 15; Guest Langalibalele: The Crisis in Natal 43.
But it was defeat, utter and final, a more serious defeat than the casualty list indicated. Shepstone had failed, Langalibalele's tribe had defied the Administration, killed three white men, got clean away, and Langalibalele had escaped to Lesotho.
113
113 Pearse Barrier of Spears 242.
1.6 Martial law and the massacre of the Hlubi and the Putini
This was the first time British blood had been spilled at the hands of Africans in Natal.
114
114 Wright and Manson Hlubi 60; Lobban Imperial Incarceration 82. 115 Both Proclamations are quoted in full in the Keith and Co "Introduction" xxv-xxvi. 116 Keith and Co "Introduction" xxxvi; Colenso Langalibalele and the Amahlubi Tribe 173, 303; Pearse Barrier of Spears 246; Herd Bent Pine 32; Wright and Manson Hlubi 67. There was also a bounty of 100 head of cattle on his head (Guest Langalibalele: The Crisis in Natal 45). 117 Morris Washing of the Spears 222; Lobban Imperial Incarceration 85; McClendon White Chief, Black Lords 101; Dominy 1991 Natal Museum Journal of Humanities 49; Herd Bent Pine 32; Wright and Manson Hlubi 64.
The locations of the Hlubi and Putini were destroyed by both settlers and African volunteers in what was seen as revenge:
118
118 Lobban Imperial Incarceration 81; Wright and Manson Hlubi 67; Storey Guns, Race and Power 156; Guy Heretic 202; Morris Washing of the Spears 222; Cox Life of John Williams Colenso 325. 119 Wright and Manson Hlubi 68; Lobban Imperial Incarceration 86; Guest Langalibalele: The Crisis in Natal 46; Bourquin 1985 Military History Journal 13-14, 16; Pearse Barrier of Spears 249; Herd Bent Pine 36. 120 Law 18 of 1874 allowed the Lt-Gov to assign convicts to farms, but these assignments were subsequently "disallowed" and revoked (Proc 38 of 14 June 1875). 121 Wright and Manson Hlubi 73. The Putini lost about 200 horses and between 8 000 and 10 000 head of cattle, estimated to have been worth between £16 000 and £20 000 (Colenso Langalibalele and the Amahlubi Tribe 176).
It was obvious that this was not a military expedition so much as the pursuit and killing of non-combatants by an armed force which justified looting and rapine in the name of revenge.
122
122 Guy Heretic 203.
There have been sad sights – women and children butchered by our black allies (too often, unhappily, but with the permission and encouragement of the white leaders …), old men too … The burnt villages – dead women – it was all horrible. And the destitution of the women and children left fearful. The women are all made slaves! What will England say?
123
123 Dunford in a letter to Colenso as quoted in Herd Bent Pine 37; Wright and Manson Hlubi 68; Cox Life of John Williams Colenso 329.
By mid-November 1873 the Hlubi and Putini tribes had ceased to exist.
124
124 Wright and Manson Hlubi 67-68; Knox 1976 Historical Journal 899; Morris Washing of the Spears 224; Herd Bent Pine 33. 125 Keith and Co "Introduction" xxvii; Wright and Manson Hlubi 65. 126 Guy Heretic 202; Cox Life of John Williams Colenso 330; Wright and Manson Hlubi 67-68. The colonists lauded Lt-Gov Pine as a great man for his actions (Herd Bent Pine 40).
1.7 Arrest and detention
Langalibalele was eventually arrested after a cross-border pursuit into the protectorate of Basutoland with the assistance of Chief Molapo, although Mabuhle escaped.
127
127 Pearse Barrier of Spears 249; Guest Langalibalele: The Crisis in Natal 51. The force consisted of armed Basotho supported by the Frontier Armed and Mounted Police (Pearse Barrier of Spears 249). Molapo's payment was 2 000 of the 7 000 Hlubi cattle (Storey Guns, Race and Power 156; Wright and Manson Hlubi 71; Herd Bent Pine 45). Molapo also managed to show his allegiance to the British, fearing their
expansion into his territory (Wright and Manson Hlubi 70; Guest Langalibalele: The Crisis in Natal 51). This was important as, after the Pass incident, the British dispatched three companies to Natal, and both the Griqua chief Adam Kok and the Free State President Burgers sent forces to assist in the capturing of Langalibalele (Herd Bent Pine 43).
31 December 1873,
128
128 Pearse Barrier of Spears 249; Guy Heretic 205. 129 Storey Guns, Race and Power 158; Wright and Manson Hlubi 73; Herd Bent Pine 47, 75.
2 The trial
130
130 There were three trials: the Langalibalele trial, one for his sons, and the third for other Hlubi tribe members. Only the first trial is discussed here.
And it must be admitted that it was a most extraordinary trial, a disgrace to British justice.
131
131 Pearse Barrier of Spears 251.
A mockery of justice.
132
132 Wright and Manson Hlubi 73.
Few more disgraceful farces have ever been staged in a British courtroom.
133
133 Morris Washing of the Spears 223.
The brutal actions against the Hlubi and the Putini occurred about two months before the trial. It has been argued that the trial was set up to prove rebellion and treason in order to justify the harm already inflicted on the tribes.
134
134 Guy Heretic 208. 135 Cox Life of John Williams Colenso 372.
2.1 Preliminary observations
A few preliminary observations are necessary to provide a broader context of the trial wherein the prosecutor, rather ironically, assured that the accused that they would be given a full and fair trial.
136
136 Minutes of the Langalibalele Trial 2.
2.1.1 Recordkeeping
The official record of the trial, the "Blue Book", was published and attested to by the Clerk of the Court, WB Morcom.
137
137 Minutes of the Langalibalele Trial 6, 14, 19, 27, 32. 138 Minutes of the Langalibalele Trial xli. 139 Colenso Langalibalele and the Amahlubi Tribe v.
Colenso that it had been approved by the SNA as it contained the colonial government's version of events.
140
140 Colenso Langalibalele and the Amahlubi Tribe vi fn 1. 141 Colenso Langalibalele and the Amahlubi Tribe vi, viii. He regarded the record as self-serving (Mokoena 2019 Journal of African History 68). 142 Mokoena argues that Colenso's "vindication became vindictiveness" as he also was not independent but biased in favour of Langalibalele (Mokoena 2019 Journal of African History 68).
2.1.2 The Prosecutor and the Bench
Apart from the accused Langalibalele and the prosecutor John Shepstone, eighteen other persons presided over the hearing at different times:
143
143 Minutes of the Langalibalele Trial 1; Pearse Barrier of Spears 251. 144 The Executive was the Supreme Council of the Colony. Present were Lt-Col Milles (75th Regiment, Commandant), Hon D Erskine (Colonial Secretary), Hon John Ayliff (Colonial Treasurer), Hon MH Gallwey (Attorney-General), the Hon Charles Barter and Hon JT Polkinghorne. 145 John Bird (Pietermaritzburg), AC Hawkins (Upper Umkomanzi) and P Paterson (Inanda). 146 Zatshuke (Head Induna of the Natal Government), Mafingo (Induna at Durban), Hemuhemu (Chief of the Mafunzi tribe), Nondomise (Chief of the Amatuli tribe), Teteleku (Chief of the Amapumiza tribe) and Manxele (Induna of the SNA). Shepstone regarded Teteleku as an authority on African Law (Lambert 1995 Journal of Southern African Studies 276). Hlokolo (Chief of the Amancolosi) joined only on day two (Minutes of the Langalibalele Trial 1, 7). Colenso notes that three of these appointees were not chiefs but merely Indunas (Colenso Langalibalele and the Amahlubi Tribe 178). 147 Pearse Barrier of Spears 251. 148 Pearse Barrier of Spears 251; Herd Bent Pine 51. See s 1 of Law 3 of 1868 and UK Parliament Hansard House of Lords 12 April 1875 (Lord Chancellor). 149 Only the Lt-Gov, the SNA, Bird, Hawkins and six of the seven African Chiefs/Indunas sat all six days. 150 Minutes of the Langalibalele Trial 27. Barter sat on days one and four only. Guy Heretic 206 argues that the withdrawal of the Executive was a result of a potential appeal that could be lodged in terms of Ordinance 3 of 1849.
Most appointments were inappropriate. The prosecutor was the brother of the SNA;
151
151 Pearse Barrier of Spears 251. 152 McClendon White Chief, Black Lords 110. 153 Wright and Manson Hlubi 74; Guest Langalibalele: The Crisis in Natal 57. 154 Herd Bent Pine 17, 19.
Most of the persons on the bench had a close association with the colonial administration and/or the events leading to the trial:
155
155 Wright and Manson Hlubi 74. 156 Lobban Imperial Incarceration 90; Herd Bent Pine 51. 157 Morris Washing of the Spears 224. 158 Herd Bent Pine 50. 159 Section 3 of Ordinance 3 of 1849 states: "And be it enacted, that they shall be an appeal to the Lieutenant-Governor, acting with the advice of the Executive Council of this District, for the time being, in all cases whatsoever, between natives, and which have been tried according to native law, and that the decision of the said Lieutenant-Governor, so acting as aforesaid, shall be final."
The same argument applies to others on the bench. The son of the Colonial Secretary Erskine, one of the Executive Council members, had died on the Pass at the hands of the Hlubi;
160
160 Lobban Imperial Incarceration 86. 161 Herd Bent Pine 51. He had led a force of 500 Africans and a volunteer unit that had participated in the exercise (Herd Bent Pine 19). 162 McClendon White Chief, Black Lords 109; Cox Life of John Williams Colenso 363; Herd Bent Pine 2. 163 Herd Bent Pine 51-52. 164 Preston South African Diaries 114; Guy Heretic 206. Mafingo was also resentful of Langalibalele's higher status since arriving in Natal (Minutes of the Langalibalele Trial 4-6).
speak their minds and oppose the colonial government that had just obliterated two African tribes.
165
165 Colenso Langalibalele and the Amahlubi Tribe 178; Guest Langalibalele: The Crisis in Natal 59.
In the light of this background it is not surprising that the attitude of the bench against Langalibalele was described as "naked hostility".
166
166 Herd Bent Pine 80.
2.1.3 Applicable legal systems
It is difficult to summarise the essential features of the trial, which contained such a mix of contradictory procedures, forms and precedent.
167
167 Guy Heretic 206.
A dual legal system applied in Natal at the time. Colonial law was based on Roman-Dutch Law
168
168 Ordinance 12 of 1845. 169 Wessels History of the Roman-Dutch Law 394-395. See Ordinance 18 of 1845 and Law 16 of 1861. 170 Carton, Laband and Sithole Zulu Identities 283.
The trial was said to have been conducted in terms of Native law,
171
171 Minutes of the Langalibalele Trial 2. 172 Herd Bent Pine 50.
One, the Lt-Gov did not have the power in terms of Ordinance 3 of 1849 (or otherwise) to form an African court of this nature.
173
173 Colenso Langalibalele and the Amahlubi Tribe 100. 174 Carton, Laband and Sithole Zulu Identities 283. 175 Morris Washing of the Spears 224. 176 For example, Lt-Gov Pine was under the impression that legal representation was not allowed under African law (Herd Bent Pine 49).
Two, serious criminal cases at the time, such as the treason and sedition which Langalibalele was accused of, should have been tried in the colonial courts in terms of the laws of the colony.
177
177 Section 1 of Law 3 of 1868; Guest Langalibalele: The Crisis in Natal 56; Bergtheil 1875 Journal of the Society of Arts 482-483.
Three, the main incident leading to the trial, namely the killing of British soldiers on the Pass, occurred outside the borders of Natal and any crimes as a result thereof should have been prosecuted in the Ordinary Civil Court of Natal under the Imperial Act (26 and 27 Vict Cap xxxv).
178
178 Colenso Langalibalele and the Amahlubi Tribe 12 correcting the information in the Keith and Co "Introduction" iv.
Four, the maximum penalty under Native law had already been inflicted on Langalibalele and the Hlubi, making no further punishment upon conviction possible and a trial unnecessary.
179
179 Section 2 of Ordinance 3 of 1849. The maximum penalty permissible under African law was deposing a chief, breaking up his tribe and confiscating his property (Herd Bent Pine 49, 100).
Having said that, had Native law proper been applied, there would also not have been a trial as Langalibalele would have been dead. Under African law, being guilty of treason he would have been automatically and immediately killed in battle.
180
180 Minutes of the Langalibalele Trial 2 in the submission made by Lt-Gov during the trial; Pearse Barrier of Spears 251.
Why then choose African law and an African court? Native law was used to provide a "veneer of legality".
181
181 Lobban Imperial Incarceration 122; Mokoena 2019 Journal of African History 79. 182 Minutes of the Langalibalele Trial 3. 183 Morris Washing of the Spears 223. 184 Sections 22 and 39 of Ordinance 18 of 1845 and s 4 of Law 16 of 1861. 185 Sections 43-44 of Ordinance 18 of 1845 and s 4 of Law 16 of 1861. 186 Section 2 of Law 14 of 1864. 187 Law 17 of 1959 specifically applied the English rules of evidence to the courts in Natal. 188 Section 1 of Law 17 of 1959.
treason as there was no evidence that Langalibalele ever intended to invade the colony or overthrow the colonial government as required by the statute.
189
189 Section 1 of Law 3 of 1868.
Be that as it may, having decided to use African law, sections 2 of Ordinance 3 of 1849 entitled "Native Law" applied:
190
190 Section 2 of Law 28 of 1865 made provision for relieving male Native residents from the operation of this Law.
And be it enacted, that it shall and may be lawful for the Lieutenant-Governor to appoint any fit and proper person or persons, with authority to control, revise, and direct the administration of justice, according to the native law throughout this District, or in such parts of the same as to him may see fit; provided, however, that all such fines and forfeitures as, according to the native law or usage, would accrue to the Supreme Chief, or such person or persons as aforesaid, shall be paid into the treasury of the District.
The wording of the Ordinance itself was vague and imprecise as to the authority and powers of the Supreme Chief to establish a Native (African) court.
191
191 Lobban Imperial Incarceration 87. 192 Morris Washing of the Spears 224. Morris notes that even though Native law was not codified, it had an age-old trial procedure (Morris Washing of the Spears 224).
Once the trial started, however, the bench discarded African law and applied the legal principles they felt the circumstances demanded,
193
193 Guy Heretic 207; Guest Langalibalele: The Crisis in Natal 57. 194 Guest Langalibalele: The Crisis in Natal 56. 195 Herd Bent Pine 52.
2.1.4 The right to counsel
The accused was denied counsel as the court was of the opinion that this right did not exist under African law.
196
196 Minutes of the Langalibalele Trial 15. 197 Guest Langalibalele: The Crisis in Natal 58. 198 Minutes of the Langalibalele Trial 15. 199 Minutes of the Langalibalele Trial 15.
on him: he had no right to interview his client, could not defend him as he saw fit, and had no right to cross-examine any of the witnesses.
200
200 Minutes of the Langalibalele Trial 21; Morris Washing of the Spears 224; Pearse Barrier of Spears 251; Herd Bent Pine 68. 201 Herd Bent Pine 71. 202 Minutes of the Langalibalele Trial 1, 15.
This lack of representation had two negative consequences for the accused: one, his version of the events and accompanying corroborating witness evidence was not placed before the court; and two, there was no testing of the evidence of the colony's witnesses.
203
203 This resulted in a "glaring absence of Langalibalele's words and defence" (Mokoena 2019 Journal of African History 68; Wright and Manson Hlubi 74). The right to counsel is not merely a technical issue. Colenso noted that if Langalibalele had counsel the lies of one Mahoiza, one of the messengers, and could have been used to lead to a description of the facts that may have changed public perception as to the conduct of Langalibalele and the Hlubi (Cox Life of John Williams Colenso 363).
2.2 The court proceedings
2.2.1 Court
The trial, officially called a Court of Enquiry in the Minutes, commenced on 16 January 1874 in Pietermaritzburg
204
204 Minutes of the Langalibalele Trial 1. 205 Guy Heretic 205.
2.2.2 The charges
The charges resembled charges in English law and related to treason,
206
206 Law 3 of 1868 re-enacting sections of the Imperial Act 11 and 12 Victoria c 12 (Treason Felony Act, 1848) into Natal law, reducing the punishment for certain treasonous actions from the death penalty to life imprisonment. In terms of this Act, treason is aimed at criminalising actions to deprive the Sovereign inter alia of her dominions; or to levy war against her or to plan to invade her territories (Stephen Digest of the Criminal Law arts 61-62). 207 Sedition is an English common law offence to incite discontent or ill-will against the state or to promote hostility between different classes of such subjects (Stephen Digest of the Criminal Law art 93). 208 Bergtheil 1875 Journal of the Society of Arts 482. The charge or rebellion was not a common law or statutory crime under English or Natal law (Lobban Imperial Incarceration 122; Mokoena 2019 Journal of African History 79).
That Langalibalele, and the Hlubi Tribe, having been refugees from Zululand in 1849, and having received by the Government of Natal, and allowed to live in the Colony, on condition that they occupied a portion of the base of the Drakensberg, and discharged certain duties necessary for the protection of the County of Weenen: Did wickedly, seditiously, and traitorously conspire to
abandon that position, and those duties, and in carrying out the object of such conspiracy, did leave the Colony, and cross the Drakensberg, as an armed force, taking their cattle with them, well knowing that to do so was a deviant contravention of the Law under which they live, and rebellion against the authority of the Supreme Chief.
That in carrying out this seditious and rebellious design they pointed their weapons of war against the Supreme Chief, and wounded his person by killing the subjects of Her Majesty the Queen, sent by the Supreme Chief to turn them back to their allegiance and duty.
That Langalibalele, having been entrusted with the management of the Hlubi Tribe, as Induna, or Lieutenant of the Supreme Chief, did encourage, and conspire with the people under him to procure firearms, and to retain them, as he and they knew, contrary to Law, for the purpose and with the intention of, by means of such firearms, resisting the authority of the Supreme Chief; and that, with the same purpose and intention, he did enter into and carry on treasonable communications with others at present unknown; and that, emboldened by the possession of such firearms, and encouraged by expectation of aid and comfort from others, he proceeded to disobey and defy the Magistrate placed over him, to insult and treat with violence and contumely the Messengers sent to him on behalf of the Supreme Chief, and to kill the subjects of Her Majesty the Queen, sent directly, by the Supreme Chief, to cause him, and the people placed under him, to return to their allegiance.
Whereby he wickedly and traitorously placed himself, and the people committed to his care, in open rebellion against the Supreme Chief, and the authority of Her Majesty the Queen.
In short, the charges included several counts of traitorous and seditious intent towards rebellion against the Supreme Chief and the Queen for turning his back on their alliance:
209
209 Herd Bent Pine 53. 210 This charge was premised on the assumption that leaving the colony was an act of rebellion under African law (Minutes of the Langalibalele Trial 36 (Pine judgment); Lobban Imperial Incarceration 86). It is interesting to note that the Lt-Gov in his judgment noted that under colonial law the mere act of leaving the colony with cattle was not an act of treason as it was under African law (Minutes of the Langalibalele Trial 36). 211 The charges together could have been a charge of high treason (Lobban Imperial Incarceration 86).
2.2.3 Plea explanation
Langalibalele was required to plea to the charges, a process which was foreign in African law.
212
212 Wright and Manson Hlubi 74.
the indictment or what he had to do.
213
213 McClendon White Chief, Black Lords 110; Herd Bent Pine 54. Storey refers to the story in the Natal Witness of the time that Langalibalele made it clear that he did not understand the charges (Storey Guns, Race and Power 164). 214 His reported plea explanation can be seen in full in the Minutes of the Langalibalele Trial 3. 215 Lobban Imperial Incarceration 88; McClendon White Chief, Black Lords 110.
During his explanation the Lt-Gov told Langalibalele he was answerable for any wrongs committed by his tribesmen and if he could not control them he had to relieve himself of the responsibility as chief by going to the government and asking for assistance.
216
216 Minutes of the Langalibalele Trial 3; McClendon White Chief, Black Lords 10. This argument of strict liability was subsequently frowned upon in the House of Lords (UK Parliament Hansard House of Lords 12 April 1875 (Lord Chancellor)). 217 Herd Bent Pine 73.
2.2.4 Speeches by Native Chiefs and Indunas at the end of day one
After the plea explanation, the Chiefs and Indunas were given an opportunity to speak. And speak they did, hurling abuse at Langalibalele, reiterating his duty to obey the colonial government
218
218 Herd Bent Pine 55. 219 Hemuhemu further noted that Langalibalele should have obeyed the order to appear in person (Minutes of the Langalibalele Trial 4). Teteleku included that although he may not have desired his tribesmen to buy guns, he knew that a licence was required and that he was the master of his own fate through his disobedient actions (Minutes of the Langalibalele Trial 4-5). 220 Morris Washing of the Spears 224. Nondonise added that Langalibalele regarded himself "higher" than he was (Minutes of the Langalibalele Trial 5) and Mafingo
added that his conduct disgraced every black man in the Colony (Minutes of the Langalibalele Trial 5). Zatshuke highlighted the fatal mistake through his treatment of the messengers and refusal to obey the order to appear and thinking that he was the "head of all the natives and master of the white man too…" (Minutes of the Langalibalele Trial 5-6). Manxele concurred (Minutes of the Langalibalele Trial 6). See Herd Bent Pine 55.
On day four Lt-Gov Pine noted the following about the speeches of the Chiefs made on day one:
I want to say one word with regard to the speeches the Chiefs made to me on the first day of the trial. Some fault has been found with their giving their opinions at that stage by persons who do not exactly understand the usages and customs of Kafirs; but from their point of view, from which I am bound to view it, they were right. Langalibalele had confessed his guilt, and stated circumstances which he considered were an extenuation of his guilt, and according to Kafir Law and usage the trial was over. In their point of view the Chiefs were quite right, and I thank them for the opinions they gave. All the subsequent proceedings which have taken place are in conformity with our own ideas of justice; we wanted to find out what extenuating or mitigating circumstances there might be that would not have occurred in a strict Kafir Court, but, according to our own notions of justice and propriety, we found it proper to go on and ascertain any circumstances which might mitigate or extenuate his conduct.
This explanation ironically noted that the African chiefs and indunas did not understand their own African law and customs and that the proceedings were according to "our own ideas of justice", presumably English justice.
221
221 Minutes of the Langalibalele Trial 3.
2.2.5 Plea of guilty
The court noted that the plea "was regarded as … one of guilty".
222
222 Minutes of the Langalibalele Trial 7. 223 Guest Langalibalele: The Crisis in Natal 58. 224 Bergtheil 1875 Journal of the Society of Arts 482.
2.2.6 Witnesses for record purposes
Although the trial was in effect over, the court "proceeded to hear evidence, not because the plea of yesterday was regarded as anything but one of guilty, but for the purpose of placing on record the extent of the prisoner's crime."
225
225 Minutes of the Langalibalele Trial 7.
The messengers, Umyembe and Mahoiza gave contradictory evidence of their attempts to deliver the messages to Langalibalele to appear before the
SNA, his stalling, the response claiming illness
226
226 Minutes of the Langalibalele Trial 8-9 (Umyembe evidence). 227 Umyembe and Mahoiza (Minutes of the Langalibalele Trial 7-14). 228 Minutes of the Langalibalele Trial 13. 229 Minutes of the Langalibalele Trial 26. 230 Herd Bent Pine 77.
The trial continued with the evidence of two other messengers, Umhlaba and Gayed,
231
231 Minutes of the Langalibalele Trial 16. 232 Minutes of the Langalibalele Trial 15-16. 233 Minutes of the Langalibalele Trial 7. 234 Minutes of the Langalibalele Trial 16. This last statement was noted in reply to the SNA cross-examination. 235 Minutes of the Langalibalele Trial 31; Herd Bent Pine 77.
Mahoiza gave evidence of the death of four of his people during the incident in the pass through shots fired by the Hlubi.
236
236 Minutes of the Langalibalele Trial 11-14. 237 Minutes of the Langalibalele Trial 16. The Attorney-General Gallwey (from the bench) produced evidence that the gun was a registered Wildridge and Pringle from
Griqualand with several permits to transfer it through Natal (Minutes of the Langalibalele Trial 17).
evidence of the incident on the pass as he was part of Major Dunford’s and the Carbineers’ group.
238
238 Minutes of the Langalibalele Trial 17. 239 Minutes of the Langalibalele Trial 17. 240 Minutes of the Langalibalele Trial 18. 241 Minutes of the Langalibalele Trial 18.
Langalibalele had a few questions for these witnesses. He agreed that he had asked them to remove clothing out of fear, but could not ask them any questions about the incident on the pass without the presence of Mabuhle, as he had not personally been present during the incident.
242
242 Minutes of the Langalibalele Trial 14, 18. 243 Minutes of the Langalibalele Trial 31-32.
On day four the prosecutor called for a statement by the SNA to "complete the chain of evidence."
244
244 Minutes of the Langalibalele Trial 19. 245 Minutes of the Langalibalele Trial 21-23. 246 Minutes of the Langalibalele Trial 23. The Minutes note that he referred to himself as Umtagati, thus admitting that he had sinned (Minutes of the Langalibalele Trial 23). 247 Minutes of the Langalibalele Trial 3.
Two further issues were noted by the SNA on questions by his fellow bench members: one, that he (as SNA) was unsure whether Langalibalele always
paid his taxes;
248
248 Minutes of the Langalibalele Trial 24. 249 Minutes of the Langalibalele Trial 24. 250 Minutes of the Langalibalele Trial 25-26. 251 Minutes of the Langalibalele Trial 25. 252 Minutes of the Langalibalele Trial 25.
The prosecutor noted at the end of day four that there was no need for further evidence.
253
253 Minutes of the Langalibalele Trial 25. 254 Minutes of the Langalibalele Trial 29-30. There was some disagreement from Langalibalele on minor issues. The questions related to the acrimonious relationship between Langalibalele and the Magistrate's secretary/interpreter Rudolph and the impact thereof on the Magistrate's reporting Langalibalele to the SNA (Minutes of the Langalibalele Trial 31). 255 Minutes of the Langalibalele Trial 32. 256 Minutes of the Langalibalele Trial 32. 257 It is unclear why the court relied on hearsay evidence.
2.2.7 Procedural rights of the accused
Apart from the lack of legal representation discussed above, the accused himself did not have the right to cross-examine the witnesses
258
258 Guy Heretic 206. 259 See his plea explanation above.
2.3 Judgment and sentence
Although Langalibalele had already been found guilty after the first day of the trial, the judgment was delivered only on day six.
260
260 Minutes of the Langalibalele Trial 33-38. The document was signed by Lt-Gov Pine, the SNA, Bird, Hawkins, Teteleku, Nondonise, Manxele, Hemuhemu and Zatshuke. The last five signed by adding their mark. Other signatures that appear are those of the interpreters: Bennet, Hlokolo and Mafingo, the last two with marks; witness Gordon and Morcom the Clerk of Court. 261 This finding was based on contradictory evidence of the treatment of the messengers where at least one witness (Mahoiza) was known to have lied and hearsay evidence (where the produced gun(s) came from) and notwithstanding that all the elements of the crimes had not been proved by evidence. There was no evidence of the intent to commit sedition or treason and no evidence of a rebellion. 262 Minutes of the Langalibalele Trial 37. 263 Minutes of the Langalibalele Trial 37.
The judgment (erroneously) noted that although Langalibalele could have received the death penalty, the consequences already suffered by him and the tribe served as extenuating circumstances.
264
264 Minutes of the Langalibalele Trial 14. 265 Morris Washing of the Spears 224. 266 Herd Bent Pine 78. 267 This Act was adopted on 6 July 1874 by the Cape Parliament with a majority of 10 to 7 (Knox 1976 Historical Journal 899; Preston South African Diaries 191). Not quite the "overwhelming majority" Herd refers to (Herd Bent Pine 84). John X Merriman, the Cape Colony Government spokesman condemned the trial (Lobban Imperial Incarceration 91). The Act was repealed six months later after Carnarvon recommended to the Queen not to confirm the Act (Herd Bent Pine 106).
It should be noted that a colonial court was not competent to impose such a sentence, as the Colonial Prisoners' Removal Act
268
268 Section 4 of the Colonial Prisoners' Removal Act, 1869 (Imperial Act 32 and 33 Victoria c 10). 269 Pearse Barrier of Spears 251; Herd Bent Pine 78; Morris Washing of the Spears 224.
3 Post-trial reactions
The friends of Langalibelele, and his enemies, seem equally to think that wrong has been done, - or no better than imperfect justice.
270
270 Trollope South Africa 238.
… fundamental legal principles shared by all societies had been violated and consequently a grave injustice had been committed.
271
271 Guy Heretic 219 on the view of Colenso.
If this is rebellion; it is the mildest rebellion ever hear of combined with the cruellest of punishments.
272
272 Herd Bent Pine 67 with reference to Colenso.
3.1 Appeals to Shepstone and the Executive Council of Natal
Supporters of Langalibalele regarded the punishment as unjust.
273
273 Bergtheil 1875 Journal of the Society of Arts 482 opposite views in this regard. 274 Guy Heretic 210; Herd Bent Pine 88; Lobban Imperial Incarceration 90. 275 Guy Heretic 210; Herd Bent Pine 88. 276 Guy Heretic 213; Herd Bent Pine 92. 277 Guy Heretic 213; Herd Bent Pine 92; Wright and Manson Hlubi 76-77; McClendon White Chief, Black Lords 116; Morris Washing of the Spears 225. 278 Lobban Imperial Incarceration 90.
Secondly, Colenso approached the Supreme Court for an interdict to prevent Langalibalele's banishment from Natal, but it was rejected on 14 July 1874.
279
279 Wright and Manson Hlubi 77. The Supreme Court limited itself to the record of proceedings and refused to hear any new evidence (McClendon White Chief, Black Lords 114). Although he was allowed legal representation, the advocate was given a very short time to prepare (Cox Life of John Williams Colenso 353). 280 Lobban Imperial Incarceration 91. 281 Lobban Imperial Incarceration 91.
3.2 Reaction in England
When the Lord Chancellor described the trial in the House of Lords, he was greeted by loud laughter from his assembled Peers.
282
282 Pearse Barrier of Spears 251.
[A] man who was in front of a retreating force is made answerable for shots fired by men in the rear with whom he had no personal communication.… [and this made him] liable to forfeit his life under the law of every civilised country in the world.
283
283 Noted with incredulousness in the UK Parliament Hansard House of Lords 12 April 1875 (Lord Chancellor).
Colenso requested that the record and other correspondence be sent to the Secretary of State for the Colonies in London.
284
284 Guy Heretic 211. 285 Herd Bent Pine 82; Wright and Manson Hlubi 76; Guest Langalibalele: The Crisis in Natal 64. 286 Colenso had already written to the Society on 14 December 1873 after the slaughter of the two tribes (Herd Bent Pine 38; Mokoena 2019 Journal of African History 69; Herd Bent Pine 37; Colenso 2011 African Research and Documentation 4; Guest Langalibalele: The Crisis in Natal 64; Cox Life of John Williams Colenso 326-327). 287 Guy Heretic 215. With a change in government in London in February 1874, a new Secretary of State, Lord Carnarvon, was appointed (Guy Heretic 215). 288 Herd Bent Pine 97. 289 Lobban Imperial Incarceration 92; Morris Washing of the Spears 225. 290 Wright and Manson Hlubi 78. 291 Guy Heretic 216. Carnarvon originally ignored his legal team's advice that the sentence and the adoption of the Natal Criminals Act 3 of 1874 in the Cape were ultra vires (Herd Bent Pine 98). 292 The Lt-Gov's initial reports were unsatisfactory (Guy Heretic 213; Herd Bent Pine 82-83; Wright and Manson Hlubi 76; McClendon White Chief, Black Lords 116). His comprehensive report was sent on 16 July 1874 with Shepstone's comments (Guy Heretic 217). 293 Guy Heretic 216. This was sent by Colenso's brother-in-law. The Colenso document noted, "the composition of the court which had tried the chief, the procedure it had adopted, the misleading evidence of Mahoyiza, the atrocities after the Bushman's pass affair, and the Matshana incident" (Guy Heretic 216). 294 Guy Heretic 217; Pearse Barrier of Spears 251; Herd Bent Pine 103; Morris Washing of the Spears 226.
noted that Shepstone "deftly managed to fix the blunders on his hapless superior [Pine]."
295
295 Herd Bent Pine 107.
The British Government intervened and the matter served before both the House of Commons and the House of Lords.
296
296 UK Parliament Hansard House of Commons 20 April 1875; 31 March 1879; 18 July 1881; 7 May 1883; 8 August 1883; 13 August 1883; 11 March 1887 and 8 August 1887; UK Parliament Hansard House of Lords 12 April 1875 "Motion for an Address" Vol 223. 297 UK Parliament Hansard House of Lords 12 April 1875 (Grey). 298 UK Parliament Hansard House of Lords 12 April 1875 (Carnarvon). 299 Grey disagreed with Carnarvon on this point. Also see Bergtheil 1875 Journal of the Society of Arts 482.
Regarding the trial, "Carnarvon was deeply shocked by the manner in which the trial had been conducted …"
300
300 Preston South African Diaries 115; Bergtheil 1875 Journal of the Society of Arts 482. 301 Bergtheil 1875 Journal of the Society of Arts 482; Lobban Imperial Incarceration 93. Single witness evidence ("of his defiant insolence") should have been corroborated (Bergtheil 1875 Journal of the Society of Arts 483). 302 UK Parliament Hansard House of Lords 12 April 1875 (Carnarvon). Questions were asked whether it could be treason when the accused was not a British subject and when there was no law that denied him the right to emigrate (Morris Washing of the Spears 217).
However, politics prevailed. The House of Lords discussion ended with the acceptance of three factors: one, the "well-founded suspicion of Langalibalele's complicity for treasonable practices with other chiefs having been advanced"; two, that three whites were killed by the Hlubi in a well-planned ambush and three, that the value of trade in the area was growing
exponentially, that could benefit the Crown.
303
303 Bergtheil 1875 Journal of the Society of Arts 483.
Carnarvon concluded that although the trial had been improper, Langalibalele deserved punishment for "refusing to obey the summons and the lawful commands of the Natal Government, and for attempting to escape from the jurisdiction of that Government with his tribe and his cattle …"
304
304 UK Parliament Hansard House of Lords 12 April 1875 (Carnarvon). 305 Herd Bent Pine 104. 306 Herd Bent Pine 105.
About the Putini, Carnarvon found that there was no evidence of their complicity and noted that their possible mild transgressions did not justify the actions taken against them.
307
307 Herd Bent Pine 105. 308 Herd Bent Pine 105
He retired Pine from his position as Lt-Gov of Natal
309
309 Herd Bent Pine 105. 310 Herd Bent Pine 111.
Carnarvon felt he had the responsibility to "rehabilitate native justice", but in the process was forced to make a policy on "the nature and limits of imperial authority" in Africa "where racial conflicts gave the Imperial Government 'a responsibility that made interference a duty.'"
311
311 Preston South African Diaries 115.
3.4 Natal colonists
Colenso described the atmosphere during the trial, as "a tumult of popular excitement and frenzy" against Langalibalele.
312
312 Colenso Langalibalele and the Amahlubi Tribe ix; Herd Bent Pine 60.
trial,
313
313 These included rumours of incorrect translations during the trial, and acceptance of untrue prejudicial evidence (Mahoiza), whilst ignoring relevant evidence (Matyana trap) in favour of Langalibalele (Herd Bent Pine 81). 314 Morris Washing of the Spears 224; Herd Bent Pine 78; Guest Langalibalele: The Crisis in Natal 52.
Carnarvon's subsequent decisions about the trial were met with anger in Natal.
315
315 Herd Bent Pine 105. 316 Guy Heretic 216-217.
4 Consequences
The trial and its aftermath had severe consequences for the persons and groups involved.
Langalibalele was allowed to move to the Cape mainland in August 1875.
317
317 UK Parliament Hansard House of Commons 20 April 1875. This was done after the repeal of the Natal Criminals Act 3 of 1874 (Cape). 318 Lambert 1995 Journal of Southern African Studies 276. Pearse Barrier of Spears 251 said in 1887. 319 Guest Langalibalele: The Crisis in Natal 101. 320 Pearse Barrier of Spears 251; Lobban Imperial Incarceration 97. The issue of Langalibalele's return was noted in the UK House of Commons no less than six times between 1881 and 1887 (UK Parliament Hansard House of Commons 18 July 1881; 7 May 1883; 8 August 1883; 13 August 1883; 11 March 1887 and 8 August 1887). 321 UK Parliament Hansard House of Commons 11 March 1887. It was noted that he had been given lodgings in a block of buildings where he and his family were comfortable and satisfied with their accommodation and treatment (UK Parliament Hansard House of Commons 11 March 1887); Trollope South Africa 245.
Lt-Gov Pine was made the scapegoat.
322
322 Guest Langalibalele: The Crisis in Natal 86. 323 UK Parliament Hansard House of Lords 12 April 1875 (Grey). 324 Bourquin 1985 Military History Journal 16; Pearse Barrier of Spears 252. 325 Pearse Barrier of Spears 226; Guest Langalibalele: The Crisis in Natal 67.
Although it would have been reasonable to blame Shepstone in the light of his experience of African law and for being the de facto decision-maker
during the trial, he successfully shifted the blame onto his superior, Lt-Gov Pine.
326
326 McClendon White Chief, Black Lords 121; Guest Langalibalele: The Crisis in Natal 87; Herd Bent Pine 107. 327 UK Parliament Hansard House of Commons 31 March 1879. 328 UK Parliament Hansard House of Commons 31 March 1879. 329 McClendon White Chief, Black Lords 121 as read with Anon Date unknown https://honours.cabinetoffice.gov.uk/about/orders-and-medals/.
John Shepstone was cleared of his actions in the 1858 Matyana affair by an official investigation demanded by Carnarvon
330
330 Herd Bent Pine 125. 331 McClendon White Chief, Black Lords 121. It is an Order of Companion of St Michael and St George for distinguished citizens in the British realm Anon Date unknown https://www.royal.uk/order-st-michael-and-st-george.
Capt AW Dunsford, who led the disastrous expedition to the pass and criticised the courage of his soldiers, was placed on a disability pension and continued his cause in favour of the rehabilitation of the Putini, for which he was shunned by the colonists.
332
332 Morris Washing of the Spears 226; Guest Langalibalele: The Crisis in Natal 92; Colenso 2011 African Research and Documentation 4; McClendon White Chief, Black Lords 123. He became amongst the colonists the "most hated man" in Natal for branding some of the soldiers as cowards (Bourquin 1985 Military History Journal 12).
Colenso became extremely unpopular with his white congregation for siding with the Zulus.
333
333 Dominy 1991 Natal Museum Journal of Humanities 49; Pearse Barrier of Spears 250; Draper Eye of the Storm 171; Guy Heretic 217; Herd Bent Pine 89-90; Cox Life of John Williams Colenso 356. 334 Preston South African Diaries 153. John Shepstone threatened him with a defamation suit for £1 000 (Preston South African Diaries 179; Herd Bent Pine 103).
There was no justice for those who suffered the most.
335
335 Lobban Imperial Incarceration 82. 336 GN 116 and 117 of 15 April 1874; Bergtheil 1875 Journal of the Society of Arts 481. 337 Guest Langalibalele: The Crisis in Natal 82. 338 Wright and Manson Hlubi 76. 339 Guest Langalibalele: The Crisis in Natal 94.
dismemberment of the Hlubi had permanent consequences as the Commission on Traditional Leadership Disputes and Claims 2010 Report found that the Hlubi did not have a claim for kingship.
340
340 Commission on Traditional Leadership Disputes and Claims Report 553.
Although there was no further enquiry into their complicity,
341
341 Guest Langalibalele: The Crisis in Natal 33. 342 Wright and Manson Hlubi 77. 343 Guest Langalibalele: The Crisis in Natal 81. 344 Herd Bent Pine 123.
The security of the colonists, on the other hand, was improved with an increase in imperial troops in Natal by the formation of the Natal Mounted Police.
345
345 Pearse Barrier of Spears 252; Guest Langalibalele: The Crisis in Natal 96; Herd Bent Pine 112.
In addition, structural changes were made to native administration
346
346 UK Parliament Hansard House of Lords 12 April 1875 (Grey). 347 Herd Bent Pine 125; Lambert 1995 Journal of Southern African Studies 281; Carton, Laband and Sithole Zulu Identities 283. The aim of the statute is to define the official role of the chiefs, subject them to codified legal authority and strip them of power to try minor criminal infringements although they could still hear property, marriage, inheritance and other matters, with the addition of a right to appeal to the local magistrate (Lambert 1995 Journal of Southern African Studies 281). 348 McClendon White Chief, Black Lords 124. 349 McClendon White Chief, Black Lords 122. 350 Carton, Laband and Sithole Zulu Identities 283; McClendon White Chief, Black Lords 122. 351 Pearse Barrier of Spears 252. This court finally deprived the SNA of his Native judicial functions (Herd Bent Pine 124).
Lastly, although the Langalibalele affair played a small part in the downfall of Gladstone's Liberal Government,
352
352 Pearse Barrier of Spears 252. 353 Storey Guns, Race and Power 144; Guy Heretic 220. A discussion hereof falls outside the scope of this article.
Act of 1875 was adopted, giving the imperial government greater control of the area.
354
354 McClendon White Chief, Black Lords 121; Guest Langalibalele: The Crisis in Natal 67, 71.
5 Conclusion
The intransigence of Langalibalele … with some reputation as a rain-doctor who was arrested for failing to register arms, became the occasion for this ruthless act of summary punishment.
355
355 Preston South African Diaries 114.
This article has aimed to discuss the actions leading up to the trial, and the 1874 Langalibalele trial itself by including both the perspectives of Langalibalele and those of the colonial government. It sets out how the flourishing and largely independent Hlubi with their newly acquired access to guns from the diamond fields, how Langalibalele's failure to adhere to a request for a meeting with colonial government officials and how the killing of three British soldiers outside the colony by fleeing Hlubi created the opportunity for nervous colonists and punitive leaders in a struggling colony to escalate the unfortunate events into the slaughter of hundreds of Africans and the destruction of their property without any negative personal consequences. The results for the colonists were overwhelmingly positive: access to more land, the availability of cheap labour, and improved security.
Although the colonial government had the support of the colonists, questions were raised in England about the excessive bloodshed of the Hlubi and Putini tribes. With the capture of Langalibalele, the authorities resorted to deceitful methods and a sham and unlawful trial to justify the colonists’ actions and ensure the predetermined finding of guilt.
The article highlights the problems with the trial itself. These include that the Lt-Gov had no power to establish an African court and that the choice of law was inappropriate and contrary to applicable legislation. The law and procedure applied during the trial did not adhere to any specific legal system but was a convenient amalgamation of African and Natal law. Most of the members of the bench were not independent, were clearly prejudiced and were hostile towards the accused. The charges were not in line with the chosen law and were unclear, and the accused's plea explanation was erroneously interpreted as one of guilty. He was found guilty before any evidence was led. He had no legal representation, no right to cross-examine witnesses and no right to call his own witnesses. The evidence did not relate to the crimes he was accused of having committed and the punishment imposed was unlawful and exceeded the powers of the court. The appeal process was fraught with intimidation and those hearing the appeal had been involved in the original trial.
Even after this travesty of justice had been exposed in England and discussed in Parliament, justice was not done for those who suffered the most (Langalibalele, the Hlubi and the Putini). Although Langalibalele was allowed to leave Robben Island, he was not restored as chief, the Hlubi's land and property were not restored, and the Putini did not receive their full compensation. There were some negative personal and career consequences for the unfortunate scapegoat (Pine), but also for the whistle-blower (Colenso) and the individual who unsuccessfully fought for the Putini reparations (Dunsford). The main conspirators, however, were rewarded with career advances and imperial awards (the Shepstone brothers).
This saga shows how "gun control formed a large part of an emerging struggle over land and citizenship"
356
356 Storey Guns, Race and Power 144. 357 Lobban Imperial Incarceration 82.
What was more profoundly ominous was the brutal and vindictive decision to detribalise the Amahlubi and Putili Locations and destroy the degree of black economic independence which was deemed subversive of the social and political order of the state.
358
358 Preston South African Diaries 115.
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List of Abbreviations
|
CMG |
Order of St Michael and St George |
|---|
|
Lt-Gov |
Lieutenant-Governor |
|---|---|
|
SNA |
Secretary of Native Affairs |