South African Military History Society

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The Chairman, Malcolm King, opened the meeting and remarked on the very good turn out after the Election.
He said he wanted to continue the tradition started by the previous Chair of This Week/Month in History.
* 1 May 1915 the Lusitania left New York for Liverpool. She was only at half capacity because of the U-boat threat. U20 fired a torpedo into her resulting in chaos. It took the ship 18 mins to sink and 1019 of 1024 passengers and crew perished.
* 7 May 1945 Germany surrendered at Rheims in France. General Eisenhower refused to attend as the senior German officer, Jodel, was his inferior in rank.

Malcolm gave reminders of the raffle and the dates of forthcoming events to celebrate the Centenary of World War I.

Then he introduced our speaker for the evening, Judge Kathie Satchwell. Her topic being Consider Your Verdict. Judge Satchwell had chosen 11 cases from South African Law records during the period of the Great War. She outlined each case as presented to the court, then members of the audience put the case of the advocates for and against, after this the whole audience voted for and against the issue, then it was revealed how the presiding judge had decided. This was interspersed with entertaining anecdotes about the personalities involved and the presiding judges. The audience voting proved very democratic and liberal on the whole though not unanimous. There were opportunities for discussion from the floor at several points which became very lively and thought-provoking.

Case 1) In re Den of Glamis - Natal Provincial Division (This ship was under German charter in the neutral port of Beira on 4 August 1914; master of the ship set out for Durban despite the presence of German ships in the vicinity; on arrival he handed over both boat and cargo; he and the crew claimed a reward for meritorious services.)

Advocate Mackeurtan argued that the court should recognise meritorious services as a ship worth GBP60 000 was safely delivered along with its GBP28 000 cargo, a large portion of which was railway material and would be very valuable to the government.

Advocate Calder refuted the above pointing out that as no risk was run in the four-day journey from Beira the court should not reward anyone.

Judge Carter found that there was meritorious service and awarded the following: Captain GBP250, Officers GBP500 and Crew GBP320.

Case 2) Ex Parte Belli - Cape Provincial Division (Belli, a German-born man, unfit for military service, had lived in SA for many years; within weeks of the Declaration of War, he was ordered to hand himself over for a train journey to Johannesburg and thence to internment; applied to the court that authorities be restrained from arresting and detaining him.)

Advocate Davis maintained that as in peace-time no such arbitrary action would be tolerated, then the Crown must show under what legal authority it was acting. Any foreign subject domiciled in SA in wartime should have the same rights as in peace. He cited as precedent the treatment of French living in Germany at the time of the Franco-Prussian War. There was no suggestion of any disloyalty by Belli.

Advocate de Villiers countered that there was an essential difference between a subject and an alien AND between an alien friend and an alien enemy. Such persons as Belli were alien enemies no matter what. He pointed out that the government must have the right to remove them from society or put them in a particular place.

Judge Maasdorp found that foreign subjects should be removed without hardship. Thus Belli was removed to Fort Napier which was the main internment centre.

Case 3) Rex v De Wet - Special Criminal Court (General Christiaan De Wet was charged with high treason as a result of his expedition to South West Africa and the 1914 rebellion. He claimed it was no more than an armed protest. Quotes from his speeches are most interesting.)

Advocate De Jager insisted that it was necessary to prove hostile intent on a charge of high treason. The law on hostile intent was set out in R v Celliers 1877, S v Phillips (the Jameson Raid and Reform Trials) 1896 and R v Dinizulu 1910. It was unnecessary to allege or prove that the accused intended to assist a foreign enemy.

Advocate Krause put forward that the essence of the crime of high treason is the violation of one's allegiance to the King. The movement in which the accused took part was merely an armed protest against the illegal act of the Government in utilising the Defence Act to carry out the invasion of German South West Africa, which was opposed to the provisions of the South Africa Act and the Defence Act. The crime of high treason could not be established unless it were proved that hostile intent was present in the accused's mind. Therefore the surrounding circumstances must be taken into account. There is no law which prohibits an assembly of armed men.

Judge Lange found that De Wet was assisting Maritz and clearly guilty. De Wet was fined GBP2000 and sentenced to two years in prison.

Case 4) Fichardt v The Friend Newspapers (After the sinking of the Lusitania, there were riots in the streets of Bloemfontein. The newspaper reported attacks on German firms and implied that Fichardt's was a German firm. The firm sued for defamation for being called German.)

Advocate JMB Hertzog submitted that under the peculiar circumstances at the time when the words were used it was defamatory to call a person German. Opprobrium may attach to a word temporarily owing to circumstances then existing. The application of the word "German" to the firm of Fichardt's was calculated to bring it into contempt. The words were injurious to Fichardt's and malice had therefore been presumed.

Advocate CL Botha said that the complaint was only to the headlines, not to the report itself. The court would have to hold that the words used amounted to a definite statement that Fichardt's was a German business. The words were not defamatory so they must prove malice which the evidence rebuts.

The Appeal Court found that German did not imply a breach of the law and that therefore it was not defamatory to call one a German.

Case 5) Nathan v Union Government - Cape Provincial Division (Nathan was a German-born dentist in SA for many years. Minister simply ordered him interned with no reason given.)

Advocate Davis said that as the terms of the regulations were of a very wide character so it was very difficult to attack what the Minister had done. He felt some kind of trial or hearing was necessary and that the Minister could not just make a bald statement.

Advocate Beyers KC motioned that as there was a state of war, the court could not enter into this case. There was no necessity for the Minister to state his reasons.

Judge Gardiner found that the Minister's action was because of the war and ordered Nathan to internment at Fort Napier.

Case 6) Labuschagne v Maarburger 1915 - Cape Provincial Division (Maarburger had been interned but sued Labuschagne for money he owed to him. Labuschagne responded that an interned alien had no right to come before SA courts.

Advocate Scheepers for Labuschagne put forward that an enemy alien could not sue, and the right to confiscate enemy property could not be interfered with. He could not sue by himself or through an agent. Advocate Upington for Maarburger pointed out that although Maarburger had been removed from his place of business, the Government was not interfering with his business. A person could not run a business and trade without having the right to sue. His internment was merely an interference with his personal liberty not his ability to carry on business.

The Court found that although Maarburger was an alien friend, internment put an end to leave and licence to sue.

Case 7) Malcomess NO v Kuhn - Cape Provincial Division (Mrs Olga Malcomess had died 11 years previously. Son Carl, who lived in East London, was her executor and wanted to sue Kuhn for unpaid rentals. Mr Malcomess had been in SA for over 47 years but had been detained as an alien enemy; Kuhn said the estate could not sue him since Malcomess, his deceased wife and her estate were all alien enemies.)

Advocate Benjamin said that the deceased estate was represented by the son who was a British subject. The beneficiary, Mr Malcomess, was now out of internment on parole and so could therefore sue in SA courts.

Advocate Upington held that the executor was an agent for the Malcomess heirs - enemy aliens. A public custodian could be appointed to receive income payable to alien enemies.

The Court found that the Malcomess son was a British subject and could therefore sue.

Case 8) Rex v Bunting - Transvaal Provincial Division (Governor General had ordered services of thanksgiving on the second anniversary of War -August 1916; SP Bunting & socialists had protested outside the Johannesburg Post Office; Bunting was criminally charged and convicted in magistrates court with exciting public feeling against the war; on appeal.)

Adv de Villiers A-G held that in normal times the dissemination of the pamphlet would not be punishable. Under the Act a person may freely express his opinion provided that by so doing he does not do something which is calculated to excite public feeling. It was not necessary that there should be evidence of actual excitement of public feeling. The pamphlet belittled the acts of the Allied forces which was clearly calculated to excite the feeling of the public.

Adv Krause KC maintained that the distribution caused neither excitement nor trouble. The Crown led no evidence as to the falsity or truth of the pamphlet which was essential. The document reiterated only very old principles which might simply annoy people.

The Judge found that the pamphlet derided those who were doing their duty and could cause danger to public safety and order.

Case 9) Ex parte Harper - 1918 Griqualand West Circuit (Harper a deceased soldier had left an unsigned will in his paybook; this was not fulfilled.)

Advocate Loewenthal (on behalf of the brother of the deceased) A will made by a soldier in expedition required no formalities at all. See the authority of Grotius. See the Institutes of Cape Law by Maasdorp. He further stated that a will by word of mouth is sufficient.

The Court found that the Moratorium Act was suspended whilst a man was on active service and for three months after. A soldier's will was privileged but had to be in writing. The will was therefore valid.

Case 10) General Life Insurance v Moyle 1918 CPD ( Moyle, a soldier, had bought a life insurance policy before leaving SA for service in German East Africa, where he died. Before he left SA, General Life Insurance had sent him a letter clearly stating that the policy would only cover his death in SA, so they refused to pay the claim of Mrs Moyle)

Advocate Holloway (for Mrs Martha Moyle) maintained that South Africa meant Africa south of the equator and was a flexible term.

The Court originally found for Mrs Moyle but General Life Insurance appealed and the ruling was overturned on the grounds that South Africa meant exactly that.

Case 11) Randfontein Estates Gold Mining Co Ltd v Custodian of Enemy Property 1923 AD (Shares in Randfontein belonging to internees and alien enemies were taken by the Custodian)

Advocate Taylor - for Randfontein Estates, saw that the effect of confiscation of shares by the Custodian would be to throw doubt upon their negotiability and render them useless for purposes of international exchange.

The Court found in favour of the Custodian as shares in the wrong hands might aid the enemy.

The Chairman gave the vote of thanks for the lively evening saying that many of the issues in the cases were things with which we are familiar . He then declared the meeting closed.

Pat Henning

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