Creation of Zim’s first High Court and appointment of the first judge

…Chief Justice position always contested
 …  From Bisset in 1927 to Malaba in 2021

By TERERAI MAFUKIDZE

FROM 1890 to 1894 there was no High Court as such in Southern Rhodesia. British colonial architect Leander Starr Jameson, as the administrator and also chief magistrate, possessed the jurisdiction of a superior court of record with full power in all cases, both civil and criminal, and was also empowered to hear appeals from magistrates’ courts and to review their proceedings.

He was effectively the highest local court, although not a lawyer but a physician.

The British South Africa Company (BSAC)’s administration after the Anglo-Ndebele 1893 war subsequently extended to Matabeleland. On 18 July 1894, a Matabeleland Order-in-Council was formally issued. This applied to all territories which were later to comprise Southern Rhodesia, namely Matabeleland, Mashonaland, and Manicaland.

Under the Order-in-Council, a High Court manned by one judge was created. It had civil and criminal original and appellate jurisdiction. It was to apply Cape Colony substantive and procedural law as at the commencement of the order, except in native civil cases (customary law).

An appeal from the High Court was to lie in the Cape Supreme Court in South Africa in civil cases where the disputed amount was in excess of 100 pounds. The Rhodesian judiciary was small, conservative and heavily allied with the BSAC.

Justice Joseph Vintcent
Like Southern Rhodesia’s first Chief Justice Sir Murray Bisset, the first High Court judge, Joseph Vintcent, was born in South Africa. His father was a member of the Cape legislature. He went to Cambridge and studied law. He was called to the English Bar in early 1885 and, a month later, was admitted as an advocate in the Cape. He immediately started practising.

A year later, in 1886, he accepted appointment as a prosecutor in present-day Botswana. On 10 September 1894 after eight years as Crown Prosecutor in British Bechuanaland (Botswana), Vintcent was appointed by the BSAC the first High Court judge in present-day Zimbabwe. Vintcent was now an experienced colonial employee of the Crown.

Tanser states that the appointment of Vintcent was very popular. He was the brother of Louis Vintcent, a trooper in the BSAC’s Pioneer Corps. He had journeyed to Mashonaland with the Pioneer Column. He was subsequently appointed mining commissioner at Lomagundi, but died after contracting fever. About the incoming judge it was said: “Everyone was now assured that justice would be fairly administered”.

On 5 November 1894, Vintcent took oath of office at the official opening of the High Court. As the first judge in Southern Rhodesia, Vintcent found himself required to perform duties that went beyond ordinary judicial work. Jameson as the administrator was in charge of governing the country with the help of a council of four. Vintcent was appointed to be one of the four members. He was therefore deeply immersed in political and executive matters as a judge.

In November 1895, when Jameson was absent in the territory preparing for the Jameson Raid , Vintcent was appointed the acting administrator. This meant he was the highest administrative authority in the country – top executive and top judge simultaneously. He held this post for a year as Jameson had been imprisoned in the Transvaal after the disastrous Jameson Raid.

The Jameson Raid, from 29 December 1895–2 January 1896, a was botched raid against the South African Republic (commonly known as the Transvaal) carried out by Jameson and his company troops (some “police” in the employ of Alfred Beit’s and Cecil Rhodes’ BSAC).

In essence, it the Jameson Raid was an ineffective attempt to overthrow President Paul Kruger of the Transvaal Republic in December 1895.

Leander Starr Jameson, who lead the raid, had first arrived in Southern Africa in 1878, lured by the discovery of diamonds near Kimberley. Jameson was a qualified medical doctor, known to his friends (including Cecil Rhodes, one of the founders of the De Beers Mining Company who became premier of Cape Colony in 1890) as Dr Jim.

Leander Starr Jameson, who led the raid, had first arrived in southern Africa in 1878, lured by the discovery of diamonds near Kimberley. Jameson was a qualified medical doctor, known to his friends (including Cecil Rhodes, one of the founders of the De Beers Mining Company who became premier of Cape Colony in 1890) as Dr Jim.

In 1889, Cecil Rhodes formed the BSAC, which was given a Royal Charter and, with Jameson acting as emissary, sent a ‘Pioneer Column’ across the Limpopo River into Mashonaland (what is now the northern part of Zimbabwe) and then into Matabeleland (now south-west Zimbabwe and parts of Botswana). Jameson was given the post of administrator for both regions.

In 1895 Jameson was commissioned by Rhodes (now prime minister of Cape Colony) to lead a small mounted force (around 600 men) into the Transvaal to support an expected uitlander uprising in Johannesburg. They departed from Pitsani, on the Bechuanaland (now Botswana) border on 29 December. 400 Men came from the Matabeleland Mounted Police, the rest were volunteers. They had six Maxim guns and three light artillery pieces.

The uitlander uprising failed to materialise. Jameson’s force made the first contact with a small contingent of Transvaal soldiers on 1 January, who had blocked the road to Johannesburg. Withdrawing during the night, Jameson’s men tried to outflank the Boers but were finally forced to surrender on 2 January 1896 at Doornkop, approximately 20km west of Johannesburg.

Jameson and various uitlander leaders were handed over to the British authorities in the Cape and sent back to the UK for trial in London. Initially, they were convicted of treason and sentenced to death for their part in the plan, but the sentences were commuted to heavy fines and token prison stays – Jameson served only four months of a 15-month sentence. The British South Africa Company was required to pay nearly £1 million in compensation to the Transvaal government.

President Kruger gained much international sympathy (the Transvaal’s David versus Goliath of the British Empire) and bolstered his political standing at home (he won the 1896 presidential election against a strong rival Piet Joubert) because of the raid. Cecil Rhodes was forced to retire as prime minister of the Cape Colony, and never truly regained his prominence, although he negotiated a peace with various Matabele indunas in his fiefdom of Rhodesia.

Leander Starr Jameson returned to South Africa in 1900, and after the death of Cecil Rhodes in 1902 took over leadership of the Progressive Party. He was elected prime minister of the Cape Colony in 1904 and lead the Unionist Party after the Union of South Africa in 1910. Jameson retired from politics in 1914 and died in 1917.

When the first Chimurenga broke out, Vintcent declared martial law on 20 June 1896. He also assumed the role of head of the military organisation. He therefore became judge, administrator and commander-in-chief of the defence forces —whatever their rudimentary form.

Vintcent became one of the most vicious people in suppressing the Ndebele and Shona uprising. Shona servants and labourers were being rounded and when any tried to escape they would be court-marshalled and shot. As acting administrator and judge, he is recorded by TO Ranger (Revolt in Southern Rhodesia 1896-7) as having said that: “This is a time for arbitrary power in the interests of the general public.”

After the rebellion, Vintcent became a member of the first Legislative Council of Southern Rhodesia — a kind of parliament. So the first High Court judge was involved in executive, military, judicial and parliamentary matters.

In 1898, the Southern Rhodesia Order-in-Council was passed. It provided for, among other things, a High Court with appeals to and reservation of points of law for the Cape Supreme Court in South Africa, and ultimately an appeal to the Judicial Committee of the Privy Council in the United Kingdom.

All the courts were required, so far as not inapplicable to apply the law of the Cape Colony as at 10 June 1890, with a special provision providing for the application of native customary law. No subsequent statute of the Cape Colony was to be of effect unless specifically applied to Southern Rhodesia.

When the Southern Rhodesia Order-in-Council of 1898 was issued, Vintcent was appointed senior judge. Senior judge meant he was the senior of the two. It could be taken to be some form of “chief justice”.

John Philip Watermeyer
Like the other judges, he was born in Cape Town, South Africa. His father was a judge on the Cape bench for many years. Watermeyer, like Vintcent, studied law at Cambridge and was called to the English Bar in 1885. He then went to Cape Town, got admitted and commenced practice as an advocate.

On 30 July 1896, Watermeyer was appointed by the BSAC to be the second high court judge. He was a close friend of the administrator William Milton.

Under the Southern Rhodesia Order-in-Council of 1898 the judicial system was reorganised and the High Court of Matabeleland was reconstituted as the High Court of Southern Rhodesia with full jurisdiction, civil and criminal, over all persons and over all matters within Southern Rhodesia, subject to special provisions regarding native law and custom.

By High Commissioner’s Notice No. 20 of 29 December 1898, the High Court of Southern Rhodesia was declared “open from and after the first day of January 1899.”

Through the High Commissioner’s Notice No. 24 of 29 December 1898, Vintcent was appointed senior judge and Watermeyer was appointed a puisne judge of the High Court of Southern Rhodesia.
So Vintcent was based in Bulawayo, while Watermeyer was based in Harare.

Watermeyer’ trial of Nehanda
Nehanda, Kaguvi, Mashonganyika and others were brought to trial on 2 March 1898. Kaguvi and Nehanda were tried by Watermeyer and three assessors. History books indicate that they were in fact represented by a counsel.

Kaguvi was charged with the murder of an African policeman on 20 June 1896. Nehanda and three others were charged with the murder of native commissioner Pollard.

Nehanda, Kaguvi, Mashonganyika and others were sentenced to death for their role in the 1896-7 rebellion. They were executed on 27 April 1898.

While in the early years, the Cape administration wanted to slow down rushed justice, their minds changed when a rebellion threatened their political interest —the colony itself.

From the Cape, Milner wanted the local administrator Grey to expedite the trials so that Nehanda and Kaguvi could served as examples. He wrote to Grey: “Get the murderers tried as soon as you can. It would be better to deal with fifty percent promptly than to wait a year longer to bag the whole lot. It is the deterrent effect of strong punishment which I look to. And try first the ones in whose cases you have the surest evidence.”

It was very important for the British Crown to show that it would not tolerate rebellion that threatened a hold on its colonies.

But Grey refused to be hurried and allowed the police and the courts to proceed at their own rate.
At trial, their counsel, correctly, argued in their defence that the country was in a state of war.

Of course, this defence was conveniently dismissed by the court because it had serious legal and political repercussions for the colonial administration and conquest. Several witnesses testified against them and others testified for them. Both were convicted and sentenced to death.

Historian David N Beach raises serious doubts about the fairness of Nehanda’s trial.

He believes that she may have been wrongly convicted. It is evident that the colonial administration was desperate to suppress this uprising and would pervert justice if necessary to achieve their ends.

Fr Richartz of Chishawasha Mission tried to convert both Nehanda and Kaguvi to the Catholic faith on death row. Kaguvi’s daughter who lived at the mission and was attending the mission school pressured her father to convert.

Just before his execution, Kaguvi converted to the Catholic faith.

Fr Richartz then baptised him and gave him the name of the good thief named Dismas and says: “with whom he was to share the great blessing of forgiveness in the hour of death…”

Dismas is the name of the thief who is said to have said to Jesus on the cross after rebuking the other thief who mocked Jesus: “Remember me in Paradise.”

Nehanda was defiant to the end. It is recorded that Fr Richartz was given the task of informing the prisoners that they would be hanged on the next day, that is 27 April 1898. Kaguvi showed fear and began to cry.

Kaguvi’s father-in-law Chief Mashonganyika and Mzampi took the news quietly. Nehanda began to dance, to laugh and talk so much that warders were obliged to tie her hands and watch her continually as she threatened to kill herself.

On the day of execution, Fr Richartz tried again to talk to Nehanda about religion, but she refused, called for her people and wanted to go back to her Mazowe and die there.

We are also told how the screaming and resistance of Nehanda as she was being taken up the scaffold to be hanged deeply disturbed Kaguvi who was going to be next. He was being held nearby and heard even the noisy opening of the trap-door and the heavy thud with which she fell to die. It must have been very traumatic.

After the execution of Nehanda and Kaguvi, their bodies were buried in a secret place lest the natives could take away the bodies and claim that their spirits had descended on any other prophetess.
To this day we maintain this practice of hiding bodies of executed prisoners.

The relatives of the condemned prisoners are denied the body, and the body is buried in unmarked graves.

Early judicial work
The early work of the two judges was not without controversy. Much of the controversy involved the unjust manner in which Africans were tried and punished, while whites virtually went scot-free for crimes committed against natives.

Their decisions reflected the interests of the Pioneer community. One of the early legal complications arose from cases that involved natives. The British colonial policy on paper required that justice be dispensed according to law.

Until 1899, Rhodesian High Court trials were heard by one of the two judges and three assessors. However, the European public pushed for trial by jury which they said they were accustomed to.

As a result, trial by jury was introduced for both black and white. For one to serve as a juror, one had to have, among other things, a certain level of education, be a voter, and private ownership of property. This obviously excluded all natives from consideration.

In those early years, there was a fear of what was called Black Peril. According to Jock McCullogh (Black Peril, White Virtue: Sexual Crime in Southern Rhodesia 1902-35), Black Peril was rape or assault, act, or overtures, and the molesting of women for the purpose of exciting or satisfying “bestial desires”.

It theoretically embraced indiscreet gestures, familiarity or even friendship. In essence, it was the fear that black men were after white females.

There was large imbalance within the settler community with regards to availability of females. White females were outnumbered by white males five times. This meant that many white males ended up harassing and raping black women.

Sexual relationship across races became the subject of criminal legislation. The Immorality Suppression Ordinance of 1903, for example, made sexual relations between a black man and a white woman unlawful.

There was no corresponding prohibition of a sexual relationship between a white man and a black woman. There was a follow-up law that imposed a death penalty for attempted rape. This law, though silent on racial application, was used to punish black men on the thinnest of evidence, causing untold suffering of the innocent.

In enforcing these laws which were meant to protect the settler community from the ravages of native men’s libido, the judges and juries played a crucial role.