[7] During the Second Boer War,[12] on 22 November 1899, Peter William Smith, a member of the Cape Police Force and part of a patrol of British troops under the direct command of Captain Chas F Cox, shot and killed John Dolley, a native servant, at Jackhalsfontein, Colesberg, then in Cape Colony, for failing to produce a missing bridle, in obedience to the order "If he does not look sharp, put a hole through him" given by Cox.

[7] Stephen said that in delivering judgment the Court, which was performing the duties of a jury as well as those of judges, found as a fact that Captain Cox believed that Dolley knew where the bridle was when he was told to fetch it, and that he willfully refused to do so; otherwise, there was no disputed question of fact of any importance for them to decide.

[14] It was reserved for the Court to give the first authoritative judgment on what had previously been a moot point, namely, what according to civil, as opposed to military, law is the position of a soldier who commits homicide at the order of his superior officer?

[6] In 1901, Stephen said: It is probable that had the case been tried in England the question of law would have been decided precisely as it was by Mr. Justice Solomon and his colleagues.

The matter has not, however, escaped attention, and the judgement of the Court is in fact delivered in the terms of the Manual of Military Law, ch.

11, which is in accordance with the view suggested by Sir James Stephen in his History of the Criminal Law, vol.

50 of that Code applies a similar rule to the acts of a soldier in suppressing a riot, when he is justified in obeying the command of his superior officer, unless such order is manifestly illegal.