It must further be borne in mind that, although the first accused, Absalom Kumalo, stated that Pafuri was present, and that he had assaulted Mpiring, he made this statement only after the Police had questioned him as to the whereabouts of Pafuri. Did it then first occur to him to implicate Pafuri? Or was there a pre-existing connection between Pafuri and the murder? Counsel for the first accused has argued that Absalom Kumalo had been in a continuous state of fear for some days, and that once he had been arrested, no matter what name or names had been submitted to him, he would have confessed what was so heavily burdening his mind, and that it was this state of mind that led to the confession, and not the mention of Pafuri’s name. Indeed his own account of his fearful state lends colour to that supposition. But one cannot exclude the possibility that he seized upon Pafuri’s name, and said that Pafuri was one of the three, not wishing to be alone on so grave a charge. Why however should he not give the names of his real confederates, for there seems no reason to doubt Mpiring’s evidence that three men came into the kitchen? He has given a straightforward account of his own actions. Why should he then implicate two innocent men and conceal the names of two guilty men? One must also bear in mind the strange coincidence that what is argued to be a wrong identification led to the apprehension of an associate who immediately confessed.
There is a further difficulty in this perplexing case. Neither of the other accused, nor the woman Baby Mkize, denies that all four were present at 79 Twenty-third Avenue, Alexandra, on the night following the murder. Was this again a chance meeting that caused the first accused to name both the second and third accused as his confederates? Or was it indeed the kind of meeting that he claims it to be? Was the murder discussed at this meeting? The woman Baby Mkize is a most unsatisfactory witness, and while the prosecution, and the Counsel for the defence of the first accused, demonstrated this most clearly, neither was able to produce that conclusive proof that the murder had been discussed. This woman at first lied to the Police, telling them that she had not seen the first accused for a year. She was a confused, contradictory, and frightened witness, but was this fear and its resulting confusion caused by mere presence in a Court, or by knowledge of other crimes to which she had been a party, or by the guilty knowledge that the murder was in fact discussed? That does not seem to us to have been clearly established.
The prosecution has made much of the previous association of the three accused, and indeed has made out so strong a case that further investigation is called for into the nature of that association. But previous association, even of a criminal nature, is not in itself a proof of association in the grave crime of which these three persons stand accused.
After long and thoughtful consideration, my assessors and I have come to the conclusion that the guilt of the second and third accused is not established, and they will be accordingly discharged. But I have no doubt that their previous criminal association will be exhaustively investigated. There is a sigh in the Court. One act of this drama is over. The accused Absalom Kumalo makes no sign. He does not even look at the two who are now free. But Pafuri looks about as though he would say, this is right, this is just, what has been done.
There remains the case against the first accused. His confession has been thoroughly investigated, and where it could be tested, it has been found to be true. There seems no reason to suppose that an innocent person is confessing the commission of a crime that he did not in fact commit. His learned Counsel pleads that he should not suffer the extreme penalty, argues that he is shocked and overwhelmed and stricken by his act, commends him for his truthful and straightforward confession, draws attention to his youth and to the disastrous effect of a great and wicked city on the character of a simple tribal boy. He has dealt profoundly with the disaster that has overwhelmed our native tribal society, and has argued cogently the case of our own complicity in this disaster. But even if it be true that we have, out of fear and selfishness and thoughtlessness, wrought a destruction that we have done little to repair, even if it be true that we should be ashamed of it and do something more courageous and forthright than we are doing, there is nevertheless a law, and it is one of the most monumental achievements of this defective society that it has made a law, and has set judges to administer it, and has freed those judges from any obligation whatsoever but to administer the law. But a Judge may not trifle with the Law because the society is defective. If the law is the law of a society that some feel to be unjust, it is the law and the society that must be changed. In the meantime there is an existing law that must be administered, and it is the sacred duty of a Judge to administer it. And the fact that he is left free to administer it must be counted as righteousness in a society that may in other respects not be righteous. I am not suggesting of course that the learned Counsel for the defence for a moment contemplated that the law should not be administered. I am only pointing out that a Judge cannot, must not, dare not allow the existing defects of society to influence him to do anything but administer the law.
Under the law a man is held responsible for his deeds, except under certain circumstances which no one has suggested here to obtain. It is not for a judge otherwise to decide in how far human beings are in truth responsible; under the law they are fully responsible. Nor is it for a judge to show mercy. A higher authority, in this case the Governor-General-in-Council, may be merciful, but that is a matter for that authority. What are the facts of this case? This young man goes to a house with the intention to break in and steal. He takes with him a loaded revolver. He maintains that this was for the purpose of intimidation. Why then must it be loaded? He maintains that it was not his intention to kill. Yet one of his accomplices cruelly struck down the native servant, and one must suppose that the servant might easily have been killed. He states himself that the weapon was an iron bar, and there is surely no more cruel, no more dangerous way to do such a deed. In this plan he concurred, and when the Court questioned him, he said that he had made no protest against the taking of this murderous and dangerous weapon. It is true that the victim was a black man, and there is a school of thought which would regard such an offence as less serious when the victim is black. But no Court of Justice could countenance such a view. The most important point to consider here is the accused’s repeated assertion that he had no intention to kill, that the coming of the white man was unexpected, and that he fired the revolver out of panic and fear. If the Court could accept this as truth, then the Court must find that the accused did not commit murder.
What again are the facts of the case? How can one suppose otherwise than that here were three murderous and dangerous young men? It is true that they did not go to the house with the express intention of killing a man. But it is true that they took with them weapons the use of which might well result in the death of any man who interfered with the carrying out of their unlawful purpose. The law on this point has been stated by a great South African judge. An intention to kill, he says, is an essential element in murder; but its existence may be inferred from the relevant circumstances. And the question is whether on the facts here proved an inference of that nature was rightly drawn. Such an intent is not confined to cases where there is a definite purpose to kill; it is also present in cases where the object is to inflict grievous bodily harm, calculated to cause death regardless of whether death results or not. Are we to suppose that in this small room, where in this short and tragic space of time an innocent black man is cruelly struck down and an innocent white man is shot dead, that there was no intention to inflict grievous bodily harm of this kind should the terrible need for it arise? I cannot bring myself to entertain such a supposition.
They are silent in the Court. And the Judge too is silent. There is no sound there. No one coughs or moves or sighs. The Judge speaks:
This Court finds you guilty, Absalom Kumalo, of the murder of Arthur Trevelyan Jarvis at his residence in Parkwold, on the afternoon of the eighth day of October, 1946. And this Court finds you, Matthew Kumalo, and Joha
nnes Pafuri, not guilty, and you are accordingly discharged.
So these two go down the stairs into the place that is under the ground, and leave the other alone. He looks at them going, perhaps he is thinking, now it is I alone.
The Judge speaks again. On what grounds, he asks, can this Court make any recommendation to mercy? I have given this long and serious thought, and I cannot find any extenuating circumstances. This is a young man, but he has reached the age of manhood. He goes to a house with two companions, and they take with them two dangerous weapons, either of which can encompass the death of a man. These two weapons are used, one with serious, the other with fatal results. This Court has a solemn duty to protect society against the murderous attacks of dangerous men, whether they be old or young, and to show clearly that it will punish fitly such offenders. Therefore I can make no recommendation to mercy.
The Judge speaks to the boy. Have you anything to say, he asks, before I pronounce sentence? I have only this to say, that I killed this man, but I did not mean to kill him, only I was afraid.
They are silent in the Court, but for all that a white man calls out in a loud voice for silence. Kumalo puts his face in his hands, he has heard what it means. Jarvis sits stern and erect. The young white man looks before him and frowns fiercely. The girl sits like the child she is, her eyes are fixed on the Judge, not on her lover.
I sentence you, Absalom Kumalo, to be returned to custody, and to be hanged by the neck until you are dead. And may the Lord have mercy upon your soul. The Judge rises, and the people rise. But not all is silent. The guilty one falls to the floor, crying and sobbing. And there is a woman wailing, and an old man crying, Tixo, Tixo . No one calls for silence, though the Judge is not quite gone. For who can stop the heart from breaking?
They come out of the Court, the white on one side, the black on the other, according to the custom. But the young white man breaks the custom, and he and Msimangu help the old and broken man, one on each side of him. It is not often that such a custom is broken. It is only when there is a deep experience that such a custom is broken. The young man’s brow is set, and he looks fiercely before him. That is partly because it is a deep experience, and partly because of the custom that is being broken. For such a thing is not lightly done.
29
THEY PASSED AGAIN through the great gate in the grim high wall, Father Vincent and Kumalo, Gertrude and the girl and Msimangu. The boy was brought to them, and for a moment some great hope showed in his eyes, and he stood there trembling and shaking. But Kumalo said to him gently, we are come for the marriage, and the hope died out. My son, here is your wife that is to be.
The boy and the girl greeted each other like strangers, each giving hands without life, not to be shaken, but to be held loosely, so that the hands fell apart easily. They did not kiss after the European fashion, but stood looking at each other without words, bound in a great constraint. But at last she asked, Are you in health? and he answered, I am greatly. And he asked, are you in health? and she answered, I am greatly also. But beyond that there was nothing spoken between them.
Father Vincent left them, and they all stood in the same constraint. Msimangu saw that Gertrude would soon break out into wailing and moaning, and he turned his back on the others and said to her gravely and privately, heavy things have happened, but this is a marriage, and it were better to go at once than to wail or moan in this place. When she did not answer he said sternly and coldly, do you understand me? And she said resentfully, I understand you. He left her and went to a window in the great grim wall, and she stood sullenly silent, but he knew she would not do what it was in her mind to have done. And Kumalo said desperately to his son, are you in health? And the boy answered, I am greatly. Are you in health, my father? So Kumalo said, I am greatly. He longed for other things to say, but he could not find them. And indeed it was a mercy for them all, when a white man came to take them to the prison chapel. Father Vincent was waiting there in his vestments, and he read to them from his book. Then he asked the boy if he took this woman, and he asked the girl if she took this man. And when they had answered as it is laid down in that book, for better for worse, for richer for poorer, in sickness and in health, till death did them part, he married them. Then he preached a few words to them, that they were to remain faithful, and to bring up what children there might be in the fear of God. So were they married and signed their names in the book. After it was done, the two priests and the wife and Gertrude left father and son, and Kumalo said to him, I am glad you are married. I also am glad, my father. I shall care for your child, my son, even as if it were my own. But when he realized what it was he had said, his mouth quivered and he would indeed have done that which he was determined not to do, had not the boy said out of his own suffering, when does my father return to Ndotsheni? Tomorrow, my son. Tomorrow? Yes, tomorrow. And you will tell my mother that I remember her. Yes, indeed I shall tell her. Yes, indeed, I shall take her that message. Why yes indeed. But he did not speak those words, he only nodded his head. And my father. Yes, my son. I have money in a Post Office Book. Nearly four pounds is there. It is for the child. They will give it to my father at the office. I have arranged for it. Yes, indeed I shall get it. Yes, indeed, even as you have arranged. Why yes indeed. And my father. Yes, my son. If the child is a son, I should like his name to be Peter. And Kumalo said in a strangled voice, Peter. Yes, I should like it to be Peter. And if it is a daughter? No, if it is a daughter, I have not thought of any name. And my father. Yes, my son. I have a parcel at Germiston, at the home of Joseph Bhengu, at Number 12, Maseru Street. I should be glad if it could be sold for my son. Yes, I hear you. There are other things that Pafuri had. But I think he will deny that they are mine. Pafuri? This same Pafuri? Yes, my father. It is better to forget them. It is as my father sees. And these things at Germiston, my son. I do not know how I could get them, for we leave tomorrow. Then it does not matter.
But because Kumalo could see that it did matter, he said, I shall speak to the Reverend Msimangu. That would be better. And this Pafuri, said Kumalo bitterly. And your cousin, I find it hard to forgive them.
The boy shrugged his shoulders hopelessly. They lied, my father. They were there, even as I said. Indeed they were there. But they are not here now. They are here, my father. There is another case against them. I did not mean that, my son. I mean they are not ¦they are not ¦. But he could not bring himself to say what he meant. They are here, said the boy not understanding. Here in this very place. Indeed, my father, it is I who must go. Go?
Yes. I must go ¦to ¦
Kumalo whispered, to Pretoria?
At those dread words the boy fell on the floor, he was crouched in the way that some of the Indians pray, and he began to sob, with great tearing sounds that convulsed him. For a boy is afraid of death. The old man, moved to it by that deep compassion which was there within him, knelt by his son, and ran his hand over his head. Be of courage, my son. I am afraid, he cried. I am afraid. Be of courage, my son.
The boy reared up on his haunches. He hid nothing, his face was distorted by his cries. Au! au! I am afraid of the hanging, he sobbed, I am afraid of the hanging.
Still kneeling, the father took his son’s hands, and they were not lifeless any more, but clung to his, seeking some comfort, some assurance. And the old man held them more strongly, and said again, be of good courage, my son. The white warder, hearing these cries, came in and said, but not with unkindness, old man, you must go now. I am going, sir. I am going, sir. But give us a little time longer. So the warder said, well, only a little time longer, and he withdrew. My son, dry your tears.
So the boy took the cloth that was offered him and dried his tears. He kneeled on his knees, and though the sobbing was ended, the eyes were far-seeing and troubled. My son, I must go now. Stay well, my son. I shall care for your wife and your child. It is good, he says. Yes, he says it is good, but his thoughts are not on any wife or child. Where his thoughts are there is no wife or
child, where his eyes are there is no marriage. My son, I must go now.
He stood up, but the boy caught his father by the knees, and cried out to him, you must not leave me, you must not leave me. He broke out again into the terrible sobbing, and cried, No, no, you must not leave me. The white warder came in again and said sternly, old man, you must go now. And Kumalo would have gone, but the boy held him by the knees, crying out and sobbing. The warder tried to pull his arms away, but he could not, and he called another man to help him. Together they pulled the boy away, and Kumalo said desperately to him, stay well, my son, but the boy did not hear him. And so they parted.