oa Fundamina : A Journal of Legal History - R v Malan (1901) : politics, justice and the South African War, 1899-1902
On 18 April 1901, in the midst of the South African War, Francois Stephanus Malan (1871-1941), a member of the Cape parliament and editor of Ons Land newspaper, was convicted in the Cape Supreme Court of the criminal libel of General John French and imprisoned for twelve months. The prosecutor, James Rose Innes (1855-1942), was a fellow member of parliament and the Attorney-General in the cabinet of Premier Sir Gordon Sprigg. He was one of the Cape Colony's most respected politicians and would become one of South Africa's greatest judges. That the trial left a lasting wound on Malan is clear from his published memoirs, and the authorised biography written by Bettie Cloete, his daughter. Both these publications argue that his treatment in court was unfair and the prison sentence unreasonable. Together father and daughter created a perception that Rose Innes was a pawn in a politically motivated abuse of the Colony's legal system and that he was used to silence a troublesome critic of British imperial policy in South Africa and the methods used by the British army. By analysing the reasons for Malan's prosecution, as well as by examining the court proceedings, this article will argue that Malan's enduring anger and hurt, combined with the passage of time, distorted his memory of events, and that Rose Innes was unfairly accused of being part of a political trial to neutralise a critic of the British Empire.
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