lawyers' committee for civil rights under...
TRANSCRIPT
LAWYERS' COMMITTEEFOR CIVIL RIGHTS UNDER LAW
BRIEFING PAPER ON THE
UNITED DEMOCRATIC FRONT TREASON TRIAL
state y. Mawalal Ramgobin and 15 Others,
The Supreme Court of South Africa(Natal Provincial Division)
Pietermaritzburg, South Africa
August 1985
Southern Africa projectLawyers' Committee for Civil Rights Under Law
1400 Eye Street, N.W.Suite 400
Washington, D.C. 20005
-.
LAWYERS' COMMITTEEFOR CIVIL RIGHTS UNDER LAW
SUITE 400 • 1400 EYE STREET, NORTHWEST. WASHINGTON, D.C. 20005 • PHONE (202) 371-1212
CABLE ADDRESS: LAWCIV, WASHINGTON, D.C.
BRIEFING PAPER ON THE
UNITED DEMOCRATIC FRONT TREASON TRIAL
State v. Mawalal Rarngobin and 15 Others,
The Supreme Court of South Africa(Natal Provincial Division)
Pietermaritzburg, South Africa
August 1985
Prepared by the Southern Africa Project of the Lawyers' Committeefor Civil Rights Under Law.
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TABLE OF CONTENTS
Part I: Background to the Treason Trial 1
Section 1: The New Constitution and the Detention ofLeading Members of the United Democratic Front ..... 1
Section 2: Bail Denied 14
Section 3: The Charge of Treason.............................. 24
(A) The Indictment.......................................... 24
(B) Treason, Historically and in Law in South Africa 25
(i) The Situation Prior to 1961 25
(ii) 1961-1978 38
(iii) 1979-19 85 ••.••••••••••0. . . . . . • . . . . . . . . . . . . . . . . . . . . .. 42
Part II: The United Democratic Front Treason Trial 52
Section 1: The Main Count - Treason........................... 52
Section 2: The Alternate Charges 59
(A) Terrorism Under the Internal Security Act of 1982 59
(B) Terrorism Under the Terrorism Act of 1967 65
(C) Furtherance of Objects of an Unlawful Organization 69
(D) Furtherance of the Objects of Communism 70
(E) Furtherance of the Objects of Communism and/or the ANC .. 71
Appendix A:
Appendix B:
Appendix C:
Profile of Defendants
Organizational Profile -UDF and affiliates cited in the indictment
--Copy of the Freedom Charter
In September, 1985, in the Supreme Court of South Africa
(Natal Provincial Division) sixteen prominent black community
and labor leaders will stand trial for treason. The accused
are members of one of the most important opposition groups in
the country, the United Democratic Front. The trial will take
place in the context of the deepening political crisis in
South Africa, which most recently has been manifested by the
government's declaration of an indefinite State of Emergency
in 36 magisterial districts. In the following pages we have.
discussed the background to this trial and its important legal
and historical dimensions.
* * * * * *
Part I: Background to the Treason Trial
Section 1: The New Constitution and the Detention ofLeading Members of the United Democratic Front
The United Democratic Front (UDF) was launched as a
national organization in August 1983 at one of the biggest
political rallies seen since the era of mass, legal opposition
politics in the 1950s. The UDF's primary aim was to coor-
dinate opposition to the new constitution introduced by the
ruling white Nationalist Party. The proposed new system of
government simply entrenched apartheid by excluding the
1
participation of the 73 percent black (African) majority and
giving only limited participation rights to the country's
Indian and Coloured (mixed-race) population. A continued
white monopolization of power was guaranteed through the
ethnically separate, tricameral parliamentary structure and
the nature of the new executive presidency.
At the launching rally in August 1983 the unp representa-
tives declared:
We stand for the creation of a true democracy inwhich all South Africans will participate in thegovernment of our country.
We stand for a single, unf ragmented South Afr ica, aSouth Africa free of Bantustans and Group Areas •
. • • we join hands as community, women's,students', religious, sporting and other organizations and trade unions to say no to apartheid.
We say no to the Republic of South Africa Constitution Bill -- a Bill which will create yet anotherundemocratic constitution in the country of ourbirth.
In the face of the final total exclusion of the majority
from direct representation at national government level,
the unp responded by spearheading a boycott of the tricameral
parliamentary elections scheduled for August 22 and 28, 1984.
Within a year of its formation the unp had won the support of
more than 600 affiliated organizations of all races and in all
parts of the country.
Their tactics employed around the election issue were
peaceful and open, and ultimately highly successful. The
election results indicated an overwhelming rejection of the
2
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new constitution. Only 18 percent of the eligible Indian and
Coloured voters went to the polls.
Throughout the UOF-organized campaign against the
elections police repression was constant. Activists were
harassed and assaulted, pamphlets and petition forms were
confiscated and canvassers arrested. UOF sponsored meetings
in a number of areas were banned, and rallies were sometimes
violently broken up by the police. On the election days
themselves police used teargas and batons against demon-
strators as well as journalists covering the event.
On the eve of the elections the South African Security
Police arrested leading members of the UOF, along with indi-
viduals from other or~anizations which had actively opposed
the new constitution. Amongst those arrested were Mewa
Ramgobin, George Sewpershad, M. J. Naidoo, Essop Jassat,
Aubrey Mokoena, Archie Gumede, and Curtis Nkondo, all of whom
are now facing trial for treason.
The individuals detained on August 21 were detained
initially under section 50 of the Internal Security Act,
No. 74 of 1982. 1 Within 24 hours of their detention they
1Hereinafter referred to as the Internal Security Act(1982). This particular provision of the Act allows a policeofficer to arrest anyone without a warrant if he is of theopinion that that person's actions are contributing towards"the continuation of a state of public disturbance, disorder,riot or public violence" anywhere in the Republic. A personarrested under section 50 can be held incommunicado for 48hours, following which he or she has to be released orredetained under a warrant in terms of section 50 (1) (b),which states that "the detention of a particular person willcontribute towards the prevention of the resumption, at the
3
were served with six-month 'preventive detention' orders under
the provisions of section 28 of the Internal Security Act.
Section 28 permits the Minister of Law and Order to detain a
person merely under suspicion that the person is likely to
commit an act endangering the maintenance of law and order or
is likely to promote such acts. 2 The Minister's Order
delivered to each of the detained UDP leaders, stated simply
that the person was detained pursuant to section 28(1) of the
same place or at any other place in the Republic, of such astate of public disturbance, disorder, riot or publicviolence."
2section 28. Detention of certain persons in a prison inorder to prevent commission of certain offences or endangeringof security of State or of maintenance of law and order -(1) Notwithstanding anything to the contrary in any law or thecommon law contained, the Minister may -
(a) if in his opinion there is reason to apprehendthat a particular person will commit an offencereferred to in section 54(1), (2) or (3);
(b) if he is satisfied that a particular personengages in activities which endanger or arecalculated to endanger the security of the Stateor the maintenance of law and order or that hepropagates or promotes or is likely to propagateor promote such activities; or
(c) if he has reason to suspect that a particularperson who has been convicted of an offencespecified in Schedule 2, engages or is likely toengage in activities which endanger or arecalculated to endanger the security of the Stateor the maintenance of law and order, or propagatesor promotes or is likely to propagate or promotesuch activities,
by a written notice signed by him and addressed to a member ofthe Prisons Service, as defined in section 1 of the prisonsAct, 1959 (Act No. 8 of 1959), who is in charge of a prisonreferred to in section 20(1) (a) of the said Act, direct thatthe said person be detained in that prison.
4
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Internal Security Act because the Minister believes "that the
said person engages in activities which endanger the mainten-
ance of law and order." In each case the Minister alleged
that "by acts and utterances the said person did himself and
in collaboration with other persons attempt to create a
revolutionary climate in the Republic of South Africa thereby
causing a situation endangering the maintenance of law
and order."
Unlike section 29 of the Internal Security Act which
authorizes detention for interrogation for unlimited periods,
section 28 detainees may only be held for periods specified in
the Minister's notice. Nevertheless the Minister may in
effect extend the detention indefinitely following a pro forma.review process. The review procedures are entirely internal,
and the detainee is denied the right of legal representation
before the review committee. One section 28 detainee, Abel
Dube, was originally detained on April 21, 1982, and placed
under section 28 on November 13, 1982 for a period of twelve
months. This period was renewed for a further yea .3
In addition to the possibility of indefinite detention
the detained activists were confronted with a permanent ban
against any future involvement in political organizations.
Under section 16 of the Internal Security Act the Director of
Security Legislation is authorized to maintain a "Consolidated
3rn October 1984 Dube was released and banished for3 years to the remote town of Messina in the northernTransvaal.
5
List" of individuals who, among other things, have been
detained under the provisions of section 28. Under sections
18-23 of the Act a "listed" person faces the full range of
restrictions previously applied to alleged members of the
banned south African Communist party under the Internal
Security Act, No. 44 of 1950. Accordingly, a section 28
detainee once released is faced with a possible ban on his or
her participation in any designated organization, or from
entering particular areas, or from attending any specified
gatherings, or from being quoted or published.
The detention orders and their severe consequences were
challenged in court. On September 7, 1984, an application was
brought in the Supreme Court of South Africa (Natal Provincial
Division) requesting that the court set aside the detention
under section 28 of seven detainees in Natal. The applicants
involved were Archie Gumede, George Sewpershad, M. J. Naidoo,
Mewa -Ramgobin, Kader Hassim, Billy Nair and Sam Kikine. The
application was made on the technical grounds that, contrary
to the requirements of section 28 (3) (b) of the Internal
Security Act, the Minister's order did not set forth the
reasons for the detention; did not set forth the information
upon which the Minister relied with any clarity, precision or
completeness; and that a bald reliance upon "acts and utter
ances" without any particularity was not information within
the meaning of that word as contained in section 28 of the
Act. In addition, the applicants contended that the Minis-
6
ter's order did not contain a statement to the effect that, in
his opinion, more information could not be disclosed without
detriment to the public interest. 4
In considering the application, Mr. Justice Law reviewed
previous judgements relating to the proper role of the courts
in a situation where Parliament had conferred on the Minister
"almost autocratic powers". The conclusion drawn from that
review was that the courts' sole concern lay with ensuring
that any actions taken by the Minister complied strictly with
the provisions of the relevant statutes. In this particular
case, therefore, any detention order issued under section 28
(3) (a), unaccompanied by a notice in compliance with section
28 (3) (b) was accordingly not valid. Mr. Justice Law deter-
mined that the order issued by the Minister of Law and Order
for the detention of the UDP leaders had not complied with
section 28 (3) (b) in signi f ican t ways. The Minister failed to
state the requisite information which had induced him to issue
the notice or his reasons for withholding that information.
The Court therefore ordered the.Minister to release the seven
UDP leaders named in the application. S
4According to section 28(3) (b) of the Internal SecurityAct, a copy of the detention notice shall be accompanied by awritten statement by the Minister setting forth the reasonsfor the detention of the person concerned and as much of theinformation which induced the Minister to issue the notice inquestion as can, in the opinion of the Minister, be disclosedwithout detriment to the pUblic interest.
SIn a related matter, an application was brought in theSupreme Court of South Afr ica, (Wi twatersrand Local Division),regarding the issue of whether lawyer-client privilege
7
Following the release of the seven detainees under the
jurisdiction of the Natal court on September 7, the Minister
of Law and Order moved swiftly to counter the impact of the
Court's decision. He issued new orders for the detention of
the seven released men. The new notices contained one
extended to section 28 detainees. Under secti6n 28(8) of theInternal Security Act, the detainee has the right to have hislegal representative assist him in preparing representationsto the Minister. Citing the Judgement in Mandela v. TheMinister of Prisons, 1983"Mr. Justice Margo noted that animportant element of the fundamental common law right ofaccess to one's legal adviser, as a corollary of the right ofaccess to the courts, was the right to hold such consultationsprivately and confidentially. While access of a legalrepresentative permitted under section 28(8) is not connectedwith the right of access to the courts, communications betweenthe detainee and his lawyer for the purpose of obtaining legaladvice in respect of the detainee's liberty, involved the.right of confidentiality. Mr. Justice Margo argued that theCommissioner of Prisons' authority under Regulation 123 andsection 94 of the Prisons Act of 1959 did not give him thepower to impose complete prohibitions against visits by legalrepresentatives to awaiting trial prisoners, nor to imposerestrictions which deny the right of consultation conferred bysection 28(8) of the Internal Security Act, or such ancillaryrights as that of confidentiality thereby implied. Hedismissed the argument of the Counsel for the Respondents thata person who is detained, because his activities are believedto endanger the State or the maintenance of law and order,should not be allowed to communicate in secret with hislegal adviser. In the present case, Mr. Justice Margoconcluded,
"My duty • • . is simply to interpretthe relevant statutory provisions andnot to apply broad public policyconsiderations. If it is necessary ordesirable to prevent confidentialconsultations between a detaineeand his legal adviser, that is a matterfor the legislature."
Accordingly, in his judgement on September 15, 1984,Mr. Justice Margo decided in favor of the applicant, affirmingthe entitlement of section 28 detainees to confidentialconsultations with their lawyers.
8
additional sentence, that, with respect to the basis for the
detentions "no, other information can [in the Minister's
opinion] be disclosed without detriment to the public
interest." Similar notices were served on the ten detainees
still held in prison in Johannesburg. This occurred on
September 9, hours before an urgent application for their
release was brought before the Supreme Court of South Africa,
(Witwatersrand Local Division). The application was based on
the same grounds as that filed for the release of the Natal
detainees and cited the judgement of Mr. Justice Law. 6
Despite the precedent set by the Natal Court several days
earlier, the Supreme Court (Witwatersrand Local Division)
found that the additional sentence added to the new detention
orders was sufficient to meet the statutory requirements and
cured the defects in the previous orders. The Court held that
it was in the Minister's discretion to decide whether or not
to disclose information and that the new detention orders were
accordingly valid. The attorneys for the detainees were
granted leave to appeal the Court's rUling.
In the meantime the seven Natal detainees had gone under-
ground immediately following Law's judgment and their release
from prison, in the expectation of a counter move by the
6Nkondo and Seven Others v. The Minister of Law and-Orderand Another. The Applicants involved were Curtis Nkondo,Muntu Myeza, Haroon Patel, Aubrey Mokoena, Jerry Tlhopane,Patrick Lekota, Essop Jassat, and R.A.M. Saloojee. Two otherTransvaal detainees, Andries Mapetla and Moses Chikane, werenot included in this application.
9
Minister. On September 4, five of the men -- Gumede, Sewper-
shad, Naidoo, Ramgobin and Nair emerged seeking refuge in
the British Consulate in Durban, Natal. They requested the
British Government to give them sanctuary while they sought
court action to test the validity of the new detention
orders. They were joined by a sixth man, Paul David, with
respect to whom a first detention order had been issued.
On September 21, 1984, an application was brought in the
Supreme Court of South Africa (Natal Provincial Division) on
behalf of the Natal section 28 detainees. The application
challenged the reissued detention orders on substantive
grounds: that the Minister did not have sufficient reason to
detain the activists under section 28. The application sought
a decision on the merits, and asked for the Minister of Law
and Order to give evidence regarding the alleged activities
justifying the detention orders. The applicants contended
that the Minister had failed to give his reasons for conclud
ing that "other" information could not be disclosed without
detriment to the public interest. At no stage prior or
subsequent to the original detention of the applicants had the
Minister given them an opportunity to answer his allegations
that they had engaged in activities "endangering the mainte
nance of law and order."
In their application, the detainees asserted that the
Minister of Law and Order had no specific grounds for their
detention but rather that he had followed a policy of detain-
10
ing any person who was actively campaigning for a boycott of
the elections under the new South African constitution.
Furthermore, while the Minister was refusing to give informa-
tion to the Court justifying the detention orders, he was at
the same time making extra-judicial statements to the press
concerning the alleged intentions of the persons detained whom
he accused of "attempting to sow and promote a revolutionary
climate in South Africa. "7 The applicants maintained that
their views on the inevitability of violence because of the
devisive nature of the new Constitution were a matter of
public record. No reasonable person having access to any of
this information could honestly have corne to the conclusion
that any of the applicants themselves or "in collaboration
with others were attempting to create a revolutionary climate
in the Republic of South Africa thereby causing a situation
endangering the maintenance of law and order. ,,8
In his judgement delivered in the case on October 8, the
Acting Judge-President, Mr. Justice Van Heerden accepted that
the Internal Security Act "vests the Minister with a discre-
tion of a wide and drastic kind which in its exercise
•.• must necessarily make a serious inroad upon the ordinary
liberty of the subject." To achieve the object of preempting
7see for instance the Minister's remarks reported in theSunday Tribune August 26, 1984
8Gumede and Others v. Minister of Law and Order, application before the Supreme Court of South Africa (NatalProvincial Division), September 21, 1984. The case was heardby Justices van Heerden, Krick and Broom.
11
"any activity likely to endanger the security of the state or
the maintenance of law and order,n he continued, nthe legisla-
ture has no doubt thought it advisable to vest the Minister
with power to act in the public interest as soon as he is of
the opinion or he is satisfied or has reason to suspect that
certain conditions exist." In a unanimous judgement, the
Court found that the Minister had stated the reason for the
detentions wi thin the meaning of the section 28 (3) (b) of the
Act. It accepted that the Minister's refusal to provide
further information was an appropriate exercise of the
discretion that the Parliament had vested in the Minister.
The Court was furthermore satisfied that there was no obliga-•
tion upon the Minister to furnish reasons why he was of the
view that the disclosing of further information would be
detrimental to the public interest. There was no requirement
under the Act for him to do so. The sole discretion to
disclose or not to disclose such information was vested in the
Minister by statute.
The Court was also of the opinion that it could not
comment on the reasonableness or otherwise of the Minister's
conclusions that the Applicants had endangered the maintenance
of law and order. So long as his decisions were made bona
~ and in strict accordance with the provisions of the
statute, the Courts had no jurisdiction to interfere.
n[T]he Act does not define activities which wouldendanger or might be calculated to endanger thesecurity of the State or the maintenance of law andorder. It would indeed have been impossible for it
12
to have done so. The Legislature instead hasthought fit to leave it, notwithstanding anythingto the contrary in any law or the common lawcontained, in the discretion of the Respondent todecide when conditions envisaged in section 28(3)existed. This he has done and he was fullyentitled and justified, in the exercise of thatdiscretion, to regard what he considered to be anattempt to create a revolutionary climate in theRepublic of South Africa as endangering themaintenance of law and order."
The Court concluded that the orders were valid and that
"any arrest or detention of any of the applicants pursuant to
such notices would be lawful and authorized by law."9
During this period the men who had sought refuge in the
British Consulate, Archie Gumede, George Sewpershad,
M.J. Naidoo, Mewa Ramgobin, Billy Nair and Paul David, had
appealed to the governments of the United states and other
western countries for assistance and sanctuary. Their
requests were denied. On October 6 Sewpershad, Ramgobin and
Naidoo left the British Consulate and were immediately
arrested. Gumede, David and Nair did not leave the consulate
until December 12, when, with the exception of Nair, they too
were rearrested.
9Judgment in the Supreme Court of South Africa NatalProvincial Division, October 8, 1984, in Gumede and FiveOthers v. The Minister of Law and Order. Appeals arecurrently pending ~n behalf of the State against Mr. JusticeLaw's judgment of September 7, and on behalf of the applicantswho had been detained against the judgments of Mr. JusticeNestadt and Mr. Justice van Heerden.
13
Section 2: Bail Denied.
In the context of an increasing international focus upon
the inequities of the South African detention system and
pUblic protests in the United States about the detention
without charge or trial of a large number of labor and
community leaders,lO the Minister of Law and Order withdrew
the preventative detention orders against Essop Jassat, Aubrey
Mokoena, Curtis Nkondo, M. J. Naidoo, Mewa Ramgobin and George
Sewpershad on December 10, 1984. They were immediately
charged with· high treason and remanded in custody for trial.
Two days later Archie Gumede and Paul David, who were arrested
when they left the sanctuary of the British Consulate, were
also charged with treason.
Other prominent members of the UDF were swept up in
police raids on February 19, 1985. The security police
searched the homes and offices of UDF members and affiliates,
and confiscated documents and records. Other arrests were
carried out later that month. By then eight more individuals
had been charged with treason: The Rev. Frank Chikane,
lOIn November 1984, prominent American civil rightsactivists began a series of protests demonstrations outsidethe South African Embassy in Washington D.C. They werecalling for major changes in official U.S. policy towardsSouth Africa and for the release of labor and communityleaders detained in South Africa. In early December PresidentRonald Reagan agreed to meet with the 1984 Nobel Peace Prizerecipient, Bishop Desmont Tutu, who raised the same issues.The on-going embassy demonstrations and the Reagan-Tutumeeting were given prominent media attention.
14
•
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Thozamile Gqweta, Sam Kikine, Prof. Ismail Mohamed, Isaac
Ngcobo, Sisa Njikelana, Cassim Saloojee and Albertina Sisulu.
with respect to both the eight charged with treason in
December and those arrested and charged in February, the
Attorney General issued certificates ordering the court to
deny them bail. l1 In so doing he acted pursuant to the
authority granted him under section 30 of the Internal
Security Act. According to this provision,
Whenever any person has been arrested upon a chargeof having committed any offence referred to inSchedule 3, the attorney-general may, if heconsiders it necessary in the interests of thesecurity of the State or the maintenance of law andorder, issue an order that such person shall not bereleased on bailor on warning as contemplated inthe Criminal Procedure Act, No. 51 of 1977.(Section 30(1))
Schedule 3 offenses include treason and conspiracy, incitement
or attempt to commit treason. 12 According to sections
11 Order to Prohibit Release on Bailor WarningIn Terms of Section 30 of Act 74 of 1982
Whereas I, MICHAEL CHARLES IMBER, AttorneyGeneral for the Province of Natal consider itnecessary in the interest of the security of theState or the maintenance of law and order, I herebyorder in terms of section 30 of Act 74 of 1982, that
MAWALAL RAMGOB IN
who has been arrested on a charge of havingcommitted an offence referred to in Schedule 3 ofAct 74 of 1982 shall not be released on bailorwarning." (and similarly for the others).
120thers listed are sedition; contravention of the provisions of section 13 (1) (1) (IV) of the Inte rnal Secur i ty Act,No. 74 of 1982; any offense referred to in section 54 or 55 ofthe same; conspiracy, incitement or attempt to commit any of
15
30(2) (a) and (b) no person shall be released on bailor on
warning contrary to the provisions of an order issued under
subsection (1). No court, judge or magistrate has the power
to grant bail to a person arrested on a schedule 3 offense, if
it is informed by the public prosecutor that the matter has
been referred to the attorney-general with a view to the
issuance of an order under subsection (1). Unless the
attorney-general fails to issue an order within fourteen days
of the prosecutor's announcement, or unless the attorney-gen
eral were to expressly withdraw such an order, the provisions
of section 30 remove from the courts jurisdiction over the
granting of bail in relation to persons arrested for the
scheduled offenses.
The Attorney-General's intervention with respect to the
granting of bail was not an unusual occurrence. Various
provisions exist in South African law limiting the jurisdic-
tion of the courts with respect to the granting of bail in
both political and non-political cases. 13 However, with
the above. These various offenses are discussed below withrespect to the indictment delivered against the 16 chargedwith treason.
13under section 59 of the Criminal Procedure Act, No. 51of 1977, the power of a senior police officer to release anaccused person on bail does not extend to persons accused ofserious crimes (including treason, sedition, murder, rape,arson, kidnapping and childstealing, referred to in Parts IIand III of schedule 2 of the Criminal Procedure Act of 1977,and offenses referred to in the schedule of the InternalSecurity Act, No. 44 of 1950, as amended in 1976, namelysedition, treason, contraventions of the provisions of section11 of the Internal Security Act, of sections 2 or 3 of theTerrorism Act, No. 83 of 1967, and of section 21 of the
16
respect to persons accused of political offenses, the depar-
ture from the general principle that the granting or refusal
of bail is essentially the function of the jUdiciary has been
far more drastic.
The attorney-general was empowered, under a 1976 amend
ment to the Internal security Act of 1950, to issue an order
that a person arrested on a charge of having committed
sedition, treason, sabotage, terrorism or certain offenses
under the Internal Security Act not be released on bail before
sentence has been passed or before he has been discharged.
There were no time constraints within which the court must be
General Law Amendment Act, No. 76 of 1962). In non-politicalcases the attorney-general has the power under section 61(1)of the Criminal Procedure Act of 1977, (which replaced section108 ~ of the Criminal Procedure Act, No. 56 of 1955, whichhad been inserted for the first time in that Act in 1961), tooblige a court to refuse bail where he informs the court thatinformation is available to him
(i) which, in his opinion, cannot bedisclosed without prejudice to thepublic interest or the administration of justice; and
(ii) which, in his opinion, shows thatthe release of the accused on bailis likely to affect the administration of justice adversely or toconstitute a threat to the safetyof the public or the mainten-ance of public order.
Under this section the attorney-general is empowered to actonly with respect to offenses set out in Part III of Schedule2 of the Act (including arson, murder, kidnapping, childstealing and robbery). Nevertheless, under this provision thepower of the attorney-general to withhold bail was limited toa requirement that evidence had to be led against the accusedwithin 90 days.
17
seized of the case, in contrast with non-political cases where
the attorney-generalIs extraordinary power was at least
constrained· by the requirement that the trial commence within
90 days.14 The provisions of the 1976 amendment were
eventually incorporated as section 30 of the new consolidated
Internal Security Act, No. 74 of 1982. That section was
included in the new legislation at the recommendation of a
government commission which argued that "abnormal circum
stances" in which "the safety of the state itself was
threatened" justified the retention of a provision which was
acknowledged as "wrong in principle and indefensible."15
Despite the fact that this extraordinary limitation on
judicial function in political cases has been a feature of
South African law and practice for several decades, the
attorneys for the UDF leaders decided to appeal against the
Attorney-GeneralIs actions. In a general Memorandum prepared
on December 18 for the Attorney-General, Advocate Ismail
r.!a,h,omed, .S...C., for t-heeightmen then charged with treason,
detailed the hardships posed by the denial of bail for the
accused. Since they had been in detention from August 1984
and the trial itself was expected to last for about 18 months
14 See preceding footnote regarding non-political casesand Dugard, South African Criminal Law and Procedure, vol. 4,1977 edition, p. 76.
l5The Report of the Commission of Inquiry into SecurityLegislation, which was established in 1979 and reported inFebruary 1982. It was chaired by Mr. Justice Pieter Rabie andis usually referred to as the Rabie Report.
18
once it began in mid-1985, the accused would very likely be
incarcerated for 2 1/2 years before the conclusion of the
trial. Clearly, the Memorandum noted, this would be a breach
of the presumption of innocence which shoUld operate with
respect to the allegations against the accused. In addition
to the great personal hardships resulting from this for
each of the accused, the denial of bail would complicate the
investigations by their lawyers with respect to allegations
covering a three year period and concerning hundreds of
meetings and speeches. The Memorandum drew attention to the
fact that in a similar treason trial held from 1956 to 1960
bail had been granted. Finally, each of the accused submitted
sworn affidavits containing personal particulars and a
statement expressing an agreement to submit to stringent bail
conditions. A similar memorandum was prepared in March 1985
on behalf of those who had been arrested and charged with
treason in February.
During March and April 1985, arguments were heard in the
Supreme Court of South Africa (Natal Provincial Division)
concerning the application on behalf of the accused challeng
ing the Attorney-General's procedures in denying them bail.
On April 24, 1985, in a unanimous jUdgment, the Natal
Supreme Court ruled that the Attorney-General's certificate by
which bail had been denied was not va1id. 16 In delivering
16Judgment in the Supreme Court of South Africa (NatalProvincial Division), in the matter between Mewa Ramgobin andSeven Others and the State. During March and April the
19
judgment Mr. Justice Friedman made a strong attack on execu-
tive interference in the courts and on the provisions of
section 30 of the Internal Security Act. These sections, he
argued, "constitute serious inroads into the traditional role
of the courts. Why the legislature should have found it
necessary thus to place in the hands of the Attorney-General a
power which ought properly to repose in the courts is not
clear." It was, furthermore, "a complete anathema that an
Attorney-General should be • • • a judge in his own cause. He
is not an independent officer; unlike the courts, he does not
exercise his powers free of executive control.,,17
application with respect to the February eight was heardseparately.
l7As Judge Friedman pointed out this was expressly statedin section 3(5) of the Criminal Procedure Act:
An attorney-general shall exercise hisauthority and perform his functionsunder this Act or under any other lawsubject to the control and directions ofthe Minister, who may reverse anydecision arrived at by an attorneygeneral and may himself in generalor in any specific matter exercise anypart of such authority and perform anyof such functions.
The timing of these comments was ironic. Five weeks earlierthe Minister of Foreign Affairs, Mr.Roelof 'Pik' Botha,in anAmerican television interview, denied that his government hadhad anything to do with the arrest of 16 of the leaders of theUnited Democratic Front or with the denial of bail to them.They were arrested, he said, "as a result of a decision by theattorney general, who is not a government official atall •••• They were arrested in terms of due process of law,in terms of the Criminal Procedure Act, which is very similarto the act or acts in your country and the Anglo-Saxonworld •••• The attorney general, just as in the UnitedStates, when accused are brought to court, the state has thefullest right to oppose bail. And sometimes it is granted,
20
-------------------------------
Mr. Justice Friedman acknowledged that the parliamentary
supremacy established by the South African Constitution
renders his objections to these statutory provisions irrele-
vant. without an entrenched bill of rights against which the
legality or constitutionality of acts of Parliament could be
measured, the role of the courts is limited. The only
relevant consideration was "simply that because of the inroads
which section 30 makes into the liberty of the individual and
because of the limitations it imposes upon the Courts, its
provisions will be strictly interpreted in such a way as to
limit its impact on those interferences as much as its
language may reasonably permit."
The power of the attorney general to issue an order under
section 30(1) only arises "whenever any person has been
arrested on a charge of having committed any offense referred
to in schedule 3." In applying the strictest interpretation
to the language of section 30 (1) Mr. Justice Friedman
concluded that proof of a person's being arrested "upon a
charge" of having committed an offense required more than a
mere statement of a charge. It required, in effect, a
statement of the grounds upon which the appropriate authority
had decided to "charge" the individual with the offense for
sometimes it is not granted, and it is the decision ofthe court of law" (transcript, ABC Nightline interview withR.F.Botha and Bishop Desmond Tutu, March 18,1985). The StatePresident, Mr. P.W. Botha, made similar claims in a letter toSenator Kennedy and 40 other members of Congress on February27, 1985.
21
which he had been arrested. A mere statement of the charge,
as on the warrants issued in December, did not constitute
compliance with the provisions of section 30(1). Accordingly
the Court ruled that there existed no formal barrier to the
granting of bail in this case and that an application could
proceed in the appropriate court. The decision was unprece
dented. 18
On May 3, before the JUdge President of Natal Province,
Mr. Justice Milne, the attorney-general for that province,
Michael Imber, agreed to withdraw the orders issued in respect
of each of the accused under section 30(1) of the Internal
Security Act. The judge concurred with Mr. Justice Friedman's
remarks on the provisions of section 30, adding
when it is the courts which decide on the majorquestion of innocence or guilt and of sentence, Icannot understand why it has been decided that incertain circumstances the courts must be precludedfrom deciding questions of bail. The courts existfor these purposes. It is their function and notthe function of the executive•••. I wholly failto see the purpose or necessity for this legislative curtailment of ancient and fundamental rights,nor can I see any occasion under which its usecould be justified. I venture to suggest thatserious consideration should be given to itsrepeal.
The judge then proceeded to grant bail to the sixteen
defendants on the terms agreed upon by the Attorney General
and Counsel for the accused. Bail for all sixteen defendants
l8There is a parallel here, both in style and effect,with the judgment of Mr. Justice Law on the validity of thesection 28 orders in the Natal Supreme Court on September 7,1984.
22
totalled R170,000 (approximately $85,000 U.S.). The defend-
ants are required to report twice daily at specified police
stations; refrain from leaving their specified magisterial
district without the written permission of the Attorney
General; surrender any passport or travel documents; and
refrain from leaving his or her place of residence between the
hours of 9:00 p.m. and 6:00 a.m. In addition the defendants
must not attend or address any gathering of any organization
mentioned in the indictment or that of any affiliated organi-
zation.
It is possible, perhaps, to see the jUdgements delivered
on April 24 and May 3 as representing the first signs of a
reaction by the South African jUdiciary ~gainst the wide
powers of the executive to bypass the courts in security
cases. 19 Nevertheless, even though the State failed to bar
the release of the accused on bail, it at least managed to
extract conditions governing the release of the defendants
which enabled the State to,in effect, politically immobilize
sixteen key opponents of apartheid for the duration of what
promises to be a very long trial.
19 See the comments reported in Alistair Spark's articlein The Washington Post, May 4, 1985.
23
Section 3: The Charge of Treason
(A) The Indictment
Despite the long period of incarceration and the
extremely grave nature of the charges against the UDF
activists, the prosecutor did not deliver an indictment
against them until April 25, 1985, after eight months in
detention for at least eight of the accused. On that day, in
the Durban Magistrate's Court, the prosecutor presented a
three volume, 587-page indictment detailing the State's
allegation that -the defendants had over the past four years
acted to further the aim of a number of banned organizations
to "overthrow the State." They were accordingly guilty of
high treason, an offense which carries a possible death
penal ty.
As alternates to the main count of common law treason,
the defendants were charged with a number of statutory
offenses, namely:
(1) contravention of section ~~(l) of the InternalSecurity Act (Terrorism) ~
(2) contravention of section 2(1) (a) of the TerrorismAct of 1967 ~larticipation in TerroristicActivities)~
20 Read with sections 1, 4, 54(6), 54(7), 54(8) 64, 67,68, 69 and 73 of the Internal Security Act (1982).
2lRead with sections 1, 2(2), 2(3), 2(4), 4, 5 and 8 ofthe Terrorism Act, No. 83 of 1967 (only with respect toNkondo, Gumede, David, Gqweta, Njikelana, Kikine, Ngcobo).
24
(3) contravention of section 13 (1) (a) (V) of theInternal Security Act (Furtherance of the Objectsof an Unlawful Organization);22
(4) contravention of section 55 of the InternalSecurity Act (Furtherance of the Objects ofCommunism);23 and
(5) contravention of section 11 (a) alternatively 11(b)of the Internal Security Act, No. 44 of 1950(Furtherance of the Objects of Communism and/orthe A. N. C. ) .24
B) Treason. Historically and in Law in South Africa
(i) The Situation Prior to 1961
The South Af r ican law of treason is der i ved primar ily
from Roman-Dutch law and to a lesser extent from English
common law. The definition of the crime of treason in the
South African context has never been a precise one. Neverthe-
less, authorities appear to have been able to agree on one
aspect of the crime; that the essential element of an act of
treason is 'hostile intent.' This element alone distinguishes
treason from lesser common law crimes such as sedition and
22 Read with sections 1, 4, 56 (1) (a), 68, 69, 73 of theInternal Security Act (1982).
23 Read with sections 1, 68, 69 and 73 of the InternalSecurity Act (1982) (only with respect to Ramgobin,Sewpershad, Naidoo, Jassat, David and Saloojee).
24Read with sections 1, 2, 11 and 12 of the InternalSecurity Act (1950), and with sections 1 and 2 of Act no. 34of 1960, and with Proclamation R119 of 8 April 1960, and withsection 22 of Act 93 of 1963 (only with respect to Ramgobin,Sewpershad, Naidoo, Jassat, David, Gqweta, Njikelana, Kikineand Ngcobo).
25
public violence. 25 Hunt, in his 1970 review of the
Roman-Dutch authorities and South African case law, attempted
a comprehensive definition of treason and its essential
elements:
High treason consists in any overt act unlawfullycommitted by a person owing allegiance to a statepossessing majestas who intends to impair thatmajestas by overthrowing or coercing the Governmentof that State. 26
In this context the "overt act" is nothing more than a
'manifestation of the hostile intent. I Accordingly it can
encompass acts of collaboration with an external enemy, the
organizing of an armed insurrection against organs of the
state in peacetime, or merely writing or speaking words. An
incitement or conspiracy to commit treason likewise consti-
tutes an overt act of treason. And preparations to carry out
an overt act are in themselves treason. 27
With respect to written or spoken words being potentially
treasonous acts, Gardiner and Lansdown were of the opinion
that "where the conduct complained of has consisted of mere
25Gardiner and Lansdown, South African Criminal Law andProcedure (6th edition, 1957), Vol. 2, p. 992; Hunt, supra(Cape Town, 1970), vol. 2, pp 2-13; R. v. yiljoen, 1923A.D. 90 at 91, 95.
26Hunt, supra, p. 13.
27supra, p. 14; R. v. Henning, 1943 S.A. 172 (A.D.) at173-5; R. v. Leibbrandt, 1944 S.A. 253 (A.D.) at 261-262;R. v. Ma rdon, 1 947 (2) S• A. 7 68 (Sp. Ct .) a t 769, 772;R. v. Holm, R. v. Pienaar, 1948(1) S.A. 925 (A.D.) at 928;R. v. Strauss, 1948(1) S.A. 934 (A.D.) at 936-937;R. y. Neumann, 1949(3) S.A. 1238 (Sp. ct.) at 1239-1241;R. v, Erasmus 1923 S.A. 73 (A.D.) at 77-82; R. v. Viljoen(supra), at 91-92.
26
words, spoken or written, not constituting a conspiracy, or an
incitement of others to treason,or an act of counselor
assistance to the enemy, the accused cannot at common law be
convicted of high treason in respect of it.,,28 HUnt more
pointedly, emphasizes the matter of intent, noting that "for a
man merely to put on paper thoughts which are on his mind or
to express (without incitement or conspiracy) hostile senti-
ments, will not constitute treason, but the reason for this is
not that there is no overt act: it is because there is no
'hostile intent'. He does not write or speak in
furtherance of an intent to overthrow or coerce the Govern
ment".29
What is crucial, apparently, in all of these possible
cases, is that the person has the requisite intention with
respect to the State. The person, in Hunt's view, must intend
to impair the authority of the state by either overthrowing it
or coercing it in some way. The means employed may involve
direct force, but it is not a necessary element in any act of
treason. Other "unlawful but passive means of coercion" can
be involved. 30 Nor is the question of motivation of any
28supra,p.997. In R v Hennig (supra) ,at 181, theoriginal conviction was overturned on procedural grounds andnot because the accusedos act of writing a letter to the enemyof the Crown (Germany) lay outside the scope of potentialtreasonous overt acts.
29supra, p.16
30Hunt , supra, pp. 24-28. Judgments in a number of caseshave emphasized the key importance of "hostile intent againstthe State" in securing a conviction for treason (see, for
27
relevance. Intention has to be distinguished from the
surrounding motivation, which may have relevance only as a
mitigating factor in the sentencing of an accused. This
point is made by schreiner, J.:
"Treason may be committed and the hostile intent beentertained with a view to achieving some furtherpurpose. The ultimate goal may be the achievement of some solid or economic advantage for aportion or even for the whole of the community••• it may be the fulfilment of personal ambitionor the wreaking of personal hatred. None of theseultimate motives is relevant to the enquiry whethertreason has been committed or not. Whatever thefactors are that induce a citizen to entertainan intention to help the enemy or weaken the effortagainst the enemy, if he acts in order to carry outthat intention he commits an act of treason."3
In addition to the requisite intention, Hunt stresses
that it must be directed towards a state which possesses
maj estas.
[Only] a State which has the full and exclusiveright to make laws for its subjects and inhabitantsand to enforce these laws, possesses internalmajestas in relation to its subjects andinhabitants. It is by virtue of this majestas that
instance, R. v. Erasmus (supra), at 79; R. v. Leibbrandt(supra), at 279-380). Hunt stresses that while the means donot have to invol ve force they must be "unlawful," forotherwise "acts directed at the amendment of the constitution,the replacement of the Government or the Head of State, or theadoption or abandonment of policies or legislation by lawful,constitutional means" would be treasonous (supra, p. 19).This point is of considerable interest in view of the extremenarrowing, through statutory and regulatory measures since the1960s, of the range of means considered lawful for bringingabout political change in South Africa.
3l In R. v. Leibbrandt (supra), at 281; and similarlywhere no external enemy is involved (R. v. Erasmus (supra), at75, 79-82).
28
it compels obedience to ~ts laws and respect forits political authority. 2
Furthermore, only a person who by birth or naturalization owes
allegiance to the State can commit treason in relation to
't 33~ .Finally, the existence of this requisite intent can be
proven by direct evidence or inferred "from the acts and
expressions of the accused and from the surrounding circum
stances." The onus rests with the prosecution to prove that
the overt act committed by the accused was done with 'hostile
intent.' There is a presumption that a person intends the
natural and probable consequence of his actions. Hence the
inference of hostile intent can be drawn from the effects of
actions of the accused when those effects were foreseeable. 34
In the period prior to 1956, treason cases arose in the
context of war or armed rebellion. The alleged overt acts
included: collaboration with an external enemy of the State,
such as in the trials of Leibbrandt and others in the late
1940s for collusion with Nazi Germany; or collaboration with
armed rebels against the State,as in the trials of the
32Hunt, supra, p. 23. He adds: "it is, of course, axio-matic that the Republic of South Africa possess majestas, andthat treason can be committed against that State." In supportof this contention Hunt cites two cases from the 1940s.
33Hunt , supra, pp. 20-21. As the jUdgment inR. v. Neumann (supra, at 1256-1265) makes clear, allegianceis also owed the State by a permanently resident alien.
34R. v. Leibbrandt (supra), at 282-284; R. v. Erasmus(supra), at 935; R. v. Mardon (supra), at 776; Gardiner andLansdown, supra, p. 995.
29
Afrikaner rebels for supporting the anti-British cause during
the Anglo-Boer war (1899-1902), and the trial of Zulu Chief
Dinizulu in 1908-1909 on 23 counts of treason arising out of
his alleged complicity in the Zulu rebellion of 1906; or armed
rebellion against the State, such as in the 1915 trial
following the rebellion of Generals de wet and Beyers, and in
the trials following the 1922 insurrection by white goldminers
in the Transvaal prov ince. 35
The nature of these trials suggest that the south African
State regarded as tr'easonable only those overt acts which
involved some form of violence against the state or active
collaboration with an external enemy during periods of war.
This was not the case with the watershed 1956-1961 "Treason
Trial." That famous trial was the first treason case to occur
after the rise to power of the Afrikaner Nationalist Party in
1948. 36
35Hunt ,supra,p.12; John Dugard, Human Rights and thesouth'African Legal Order (Princeton, NJ, 1978) ,pp.209-211
36 The Afrikaner Nationalist Party (NP) won the 1948 elections partly on the basis of its hard-line apartheidpolicies. Within a few years the government had moved toimplement the new social order with such measures as the GroupAreas Act (1950), the Immorality Amendment Act (1950), thepopulation Registration Act (1950), the Bantu Authorities Act(1951), the Reservation of Separate Amenities Act (1953), andthe Bantu Education Act (1953), all of which were intended toproduce a totally segregated society and maintain thepolitical and economic dominance of the white minority.(South Africa: Time Running Out, The Report of the StudyCommission on u.s. policy Towards Southern Africa,(U. Cal. Press, Berkeley, 1981), pp. 48-66, 117-119; Davies,The Struggle for South Africa, pp. 20-26.)
30
The 1956 treason trial came in the wake of a non-violent
campaign against the apartheid policies of the -new Nationalist
party government led by a coalition of organizations compris-
ing what came to be known as the "Congress Alliance": the
African National Congress (ANC), South African Congress of
Trade Unions (SACTU), the South African Indian Congress
(SAIC), the Congress of Democrats, and the South African
Coloured People's Organization. In December 1956, 156 members
of these organizations were arrested. Following a lengthy
preparatory examination,3? charges against 65 people were
dropped. The remaining 91 were put on trial for high treason
in August 1958. The indictment was withdrawn by the prosecu-
tion in October and a new one issued against 30 of the accused
in 1959. Later that year the remaining 61 accused were again
indicted, but the indictment was quashed. The trial of the 30
resumed in August 1959. Despite the State of Emergency
declared in the wake of the Sharpeville shooting in March
1960,38 the trial continued throughout that year. Finally,
3?prior to 1962 South African law mandated that apreliminary inquiry, known as a preparatory examination, intothe gUilt of the accused be held before a magistrate prior toa Supreme Court trial.'
380n March 21, 1960, a large crowd of Africans gatheredoutside a police station in the township of Sharpeville southof Johannesburg to stage a demonstration against the lawmandating that Africans must carry passes. Although thisdemonstration had been part of an ongoing non-violent campaignagainst apartheid laws, white police opened fire on theunarmed crowd, killing sixty-nine men, women and children.Most of them were shot in the back (South Africa: TimeRunning Out, p. 173).
31
in March 1961 the Special Criminal Court in Pretoria
unanimously acquitted the accused. 39
In the initial 1958 indictment the Crown alleged that the
accused were gUilty of high treason in that they, in their
individual capacities or as members of specific organizations,
during the period October 1, 1952 to December 13, 1956, with
hostile intent, acting in concert and with common purpose,
inter alia, disturbed the independence or the security of the
State, each accused committing certain hostile and overt acts
against the State. During the specified period the accused,
it was alleged, conspired with each other and with others not
indicted to subvert the State and/or make active preparation
for a violent revolution against the State. 40
39John Dugard, Human Rights and the South AFrican LegalOrder, pp. 213-214; Thomas Karis, "The South African TreasonTrial," Political Science Ouarterly (vol. 76, no. 2, June1961), pp. 223-226; Gerald Gardiner "The South African TreasonTrial," Journal of the International Commission of Jurists(vol. 1, no. 1, Autumn 1957), p. 51.
40R• v. Adams and Others, 1959(1) S.A. 646 (Sp. ct.), at649. In part B of the indictment it was alleged that theconspirary had six aims:
(a) to overthrow the State, and/or
(b) to make active preparation for aviolent revolution against theState, and/or
(c) to disturb, impair, or endangerthe existence of the State; and/or
(d) hinder, hamper or coerce theState, and/or
(e) oppose and resist the authority ofthe State and in particular the
32
The alleged objects of this conspiracy were to be
attained by, among other things, the organizing of a gathering
known as the Congress of the People for the adoption of the
Freedom Charter;41 the organizing of a special militant corps
of Freedom Volunteers; instigating each other and others to
make use of extra-parliamentary, unconstitutional and illegal
methods, including the use of violence; organizing various
campaigns against existing laws; promoting feelings of
discontent or hostility between the various races of the
Union; advocating the adoption of a Marxist-Leninist doctrine
in th"e Union and the neces si ty of establ ishing a Communist
state, and advocating the establishment, by illegal and
unconstitutional means, of a state intended to replace the
present state and by inciting the population of the Union to
take part in and support by mass action those activities. 42
The overt acts alleged by the prosecution in furtherance
of the conspiracy and its hostile intentions consisted
primarily of the accuseds' attending and addressing certain
meetings; making or associating themselves with speeches and
power of the state to make andenforce laws, and/or
(f) establishing a Communist state orsome other state in the place ofthe existing State.
(idem, p. 658).
41 see note 82 infra and a copy of the Charter in AppendixC.
42 R• v. Adams (supra), at 650.
33
resolutions allegedly calculated to incite people to engage in
the activities necessary to achieve the goals of the con
spiracy; writing, publishing and distributing books, articles,
pamphlets, etc. calculated to incite people in the same
manner; and attending a gathering known as the Congress of the
People on the 25th and 26th of June, 1955, for the adoption of
the Freedom Charter. No single act of violence was alleged
against the accused. 43
The Defense moved to quash the indictment on several
grounds. One concerned the nature of the purported
conspiracy. The Defense argued that no fact was alleged which
showed that the accused had contracted with one another
directly or indirectly. The Defense also challenged the
Prosecution's allegation of a single conspiracy whose terms
remained constant and static throughout the period covered by
the indictment. Some of the accused were charged with
conspiring with persons who, according to the further
~articulars, were not in the conspiracy until well after the
Congress of the People gathering in June 1955, the holding of
which was claimed as one of the aims of the conspiracy. Some
of the laws specified in the indictment as the targets of
organized campaigns did not even exist in 1952, when the
conspiracy allegedly began. In response to this the Court
supported the contention of the Prosecution that "as long as
43 R• v. Adams (supra), at 651, 665; L. J. Blom-Cooper,"The South African Treason Trial: R. v. Adams and Others,"International and Comparative Law Ouarterly (1959, vol. 8), p. 66.
34
the conspiracy remains constant in regard to its ~, and as
long as the aims are unlawful, the particular or varying means
adopted by anyone of the conspirators are attributable to the
others, provided that they were employed for the purposes of
achieving the so-called 'grand object. ,"44
The Court rejected the argument of the Defense that an
accused could not be criminally liable for offenses committed
by his co-accused prior to his having joined the conspiracy,
and that he could only be tried for the commission of his own
overt acts. The Court accepted that the indictment had
brought "all the accused to Court on one charge of high
treason, admittedly based on a series of overt acts which
••• , nevertheless, constituted a 'course of conduct'
directed towards the achievement, and in pursuance of but one
criminal design, namely to overthrow the State." The exact
timing of the participation by anyone of the accused was
irrelevant to the proof of the main charge. 45
Although the Court sustained the main part of the indict-
ment, the Prosecution, nonethless, withdrew it in October,
1958. In 1959, the trial resumed under a different indictment
against thirty defendants. 46 One of the main issues in this
44 R. v. Adams (supra), at 660-661.
45 R• v. Adams (supra), at 666-668.
46 The Prosecution had withdrawn the first indictment inOctober 1958 following the quashing of the first alternatecharge under the Suppression of Communism Act (1950),(Blom-Cooper, supra, p. 59).
35
second trial concerned the question of violence and the nature
of the overt acts upon which the prosecution was relying as
proof of hostile intent. The Defense argued that where they
consisted of spoken or written words only, "such words in the
absence of an external enemy should at the very least amount
to an incitement to violence or sedition." The court ruled
against this contention, "provided the words, in the circum
stances, manifest the hostile intent and provided they tend
towards the accomplishment of the criminal design. "47 This,
rega'rdless of the fact, as the Court had acknowledged earlier,
that many of the speeches or portions thereof "might be
considered to be innocuous."48
The Prosecution's main strategy was focused upon proving
that the accused intended to act violently, a significant
departure from the Prosecution's approach in the first trial
the previous year. The accused must have known, argued the
Chief Prosecutor, that, in order to achieve the aims of the
Freedom Charter, they would have to be on a violent collision
course with the State. The Congress Alliance, as the
"vanguard" of the "Na tional Liberatory Movement" in South
Africa, was part of an international communist conspiracy
"pledged to overthrow by violence all governments in
non-communist countries where sections of the population did
not have equal political and economic rights." The nature of
47Karis, "The South African Treason Trial," p. 222.
48R• v. Adams (supra), at 656.
36
communism, so the Prosecutor's argument went, thus illuminated
the conspirators' intentions. The defendants' spoken and
written words, their attendance at meetings, their possession
of documents and so forth, however seemingly innocent, when
seen in this broader context were clearly enacted in further
ance of the treasonable conspiracy.49
All of the defendants were acquitted in March 1961 when
the Court found it impossible to conclude that the ANC and the
Congress Alliance had "acquired or adopted a policy to
overthrow the State by violence. "50 While the jUdgment
represented a failure on the part of the government to curb
extra-parliamentary dissent through the use of the treason
charge, the long drawn-out and enormously expensive trial did
have other important political consequences. As one observer
of the trial, Professor Thomas Karis, noted, throughout its
duration the proceedings had "immobilized or preoccupied many
leaders of the African National Congress" and other organiza-
tions. It drained the energies and resources of individuals
and groups who acted to assist their defense. And it posed
the potentially intimidating question: did the "breadth of
the Prosecution's argument leave open any extra-parliamentary
outlets for free speech or agitation?" The area between
legal, constitutional methods and treason could be easily
49Reported and discussed in Karis, "The South AfricanTreason Trial," pp. 224-230.
50IQig, pp. 239-240.
37
constricted, as Karis points out, under the historic "intent
and tendency" test of what constitutes an act of treason. 51
( i i) 1961 - 1978
From the early 1960s through to 1979 the accused in major
political trials were charged, not with common-law treason but
rather with statutory offenses, primarily under the Suppres
sion of Communism Act (1950), the Unlawful Organisations Act
(1960), the Sabotage Act (1962), the Terrorism Act (1967), and
the Internal ~ecutity Act in its 1976-amended form. 52 Most of
the statutory offenses overlapped with treason, sedition,
public violence and other common-law crimes, but the statutes
also created many offenses sui generis. In the case of the
now repealed Terrorism Act of 1967 the offenses were
explicitly equated to high treason (Sec. 2(1) ).53 However
these statutes were not merely a codification of common-law.
The new statutory offenses were "widely, vaguely, and
51Karis, "The South African Treason Trial," pp. 232-240;Dugard, Human Rights and the South African Legal Order,p. 214; Gardiner, "The South African Treason Trial," p. 51.
52John Dugard noted in 1977 that this absence of commonlaw treason charges was occurring despite the fact that therehad been more political trials during the previous fifteenyears than at any other stage of South Africa's history (inHuman Rights and the South African Legal Order, p.267)
53Hunt , South African Criminal Law and Procedure (1970),pp. 34-37.
38
unclearly phrased ••• [and offended] the certainty-of-law
requirement inherent in the notion of legality."54
At the same time, important changes were being made to
pre-trial and trial procedures which were to have a serious
impact on the substantive rights of the accused. Perhaps
one of the most crucial changes concerned the question of
the burden of proof. In common-law treason, the Prosecution
has the burden of proving the main element in the crime,
that of hostile intent. In contrast, under the Terrorism
Act the onus of proof was shifted to the accused. Under the
provisions of that statute a person commits the capital
crime of "participation in terroristic activities" if, "with
intent to endanger the maintenance of law and order in the
Republic, he commits any act in the Republic or elsewhere."•An intention to endanger the maintenance of law and order is
presumed if the act proved to have been committed by the
accused had or was likely to have had anyone of a number of
specified results in the Republic. The list was sweeping
and included:
(b) to promote, by intimidation, the achievementof any object;
(c) to cause or promote general dislocation,disturbance or disorder;
54nugard, idem, p. 267. As an example of the phraseology, see the discussion of the alternate charges against thetreason trial defendants, pp. 59-73 below.
39
(d) to cripple or prejudice any industry or undertaking or industries or undertakings generally orthe production or distribution of commodities orfoodstuffs at any place;
(e) to cause, encourage or further an insurrection or forcible resistance to the Governmentor the Administration of the territory;
(f) to further or encourage the achievement ofany political aim, including the bringing about ofany social or economic change, by violence orforcible means or by the intervention of or inaccordance with the direction or under theguidance of or in cooperation with or with theassistance of any foreign government or anyforeign or international body or institution;
(1) to embarrass the administration of the affairs ofthe state. (Se c • 2 ( 2) ) .
In order to establish his innocence, the accused person had
to prove beyond a reasonable doubt that he did not intend
any of the above results when he committed the proven act.
Only in this way, as Dugard points out, could he rebut the
presumption that his act was committed with intent to endanger
the maintenance of law and order. 55 In shifting the burden of
proof so dramatically onto the accused the state had reduced
the chances of embarrassing acquittals such as occurred in the
1958-1961 treason trial.
Further procedural changes facilitated the State's posi-
tion. Treason cases had been tried in special criminal
courts constituted under the Criminal Procedure Act and
involved three judges who were required to reach a majority
55 Idem, p. 263 •.
40
verdict. Since 1961 such special courts have not been
established. Political cases are now tried by a single judge
sitting alone, or with assessors, and since 1977, in limited
cases, by regional magistrates. prior to 1962, a preliminary
inquiry into the guilt of the accused before a magistrate,
known as a preparatory examination, preceded a supreme court
trial. After 1962 this was largely dispensed with in
political cases, and, following the 1977 amendment to the
Criminal Procedure Act, only occurred if requested by the
Attorney General. 56
These trends, combined with the drastic curtailment of
procedural rights resulting from the system of incommunicado
detention without charge and the expanded powers of the•
attorney general to deny bail to persons charged with
political offenses, have effectively transformed the South
African pre-trial process into an "inquisitorial system."57
The sweeping statutory definitions of "political crimes"
56Dugard, idem, pp. 233-34, 258.
57Dugard, idem, pp. 269-273. Sec. 17 of the General LawAmendment Act No. 37 of 1963 permitted 90-day detentionwithout right of access to a legal adviser. In 1965 this wasextended to 180 days in an amendment to the Criminal ProcedureAct (No. 96 of 1965). The 1967 Terrorism Act permittedindefinite, incommunicado detention for the purposes ofinterrogation. Torture, and in some cases the deaths ofdetainees, has become an ugly and persistent feature of this"drastic process." (See, for instance, the annual reports ofAmnesty International and the u.S. Department of State annualCountry Reports on Human Rights practices). The situationwith respect to the denial of bail has been discussed above.
41
and the limited role of the judiciary, increased further the
possibilities of securing convictions.
(iii) 1979 - 1985
A new trend began to emerge in 1979. In that year 12
alleged members of the banned African National congress
(ANC) were convicted of high treason in the Natal Supreme
Court. From 1980 through the end of 1983, 37 people were
tried for treason in 15 separate trials. In 1983, of the 42
persons detained under section 29 of the Internal security
Act and subsequently charged, 16 were convicted, nine of
them for high treason. Currently in 1985, 52 people are
standing trial for treason.
One common thread running through many of these recent
trials has been the State's allegation that membership in or
support for the ANC amounts to treason. Typical was the
construction given in the 1982 case, State v. Mogoerane.
Mosololi & Motaung, heard in the Supreme Court (Transvaal
Provincial Division). In the indictment the Attorney General
alleged that the aim of the ANC is to overthrow and/or
endanger the lawful government of the Republic of South Africa
by force and/or threats of force.
In carrying out these aims, so it was alleged, the ANC,
its members and active supporters had coopted people in the
Republic to support and/or join the ANC; had recruited and
organized people in the Republic to undergo military training
42
--~------------ -----------
and had distributed weapons to persons to use in warfare,
sabotage and the undermining of the authority of the
Republic. It was then further alleged that the accused
at all relevant times, i.e., 1976-1981, were members of
and/or active supporters of the ANC and had conspired with
all other of its members and active supporters to further
the unlawful aims of the ANC, and had committed specific
acts in furtherance of this conspiracy. Accordingly they
were guilty of the crime of high treason.
The overt acts alleged against them included under-
going military training in ANC camps outside the country,
establishing underground bases inside South Africa, and
executing armed attacks on three police stations which
resulted in the death of a policemen. They were convicted of
treason and 20 alternative charges. They were sentenced to
death and executed. 58
The trials involving alleged ANC members accused of
committing various acts of sabotage constitute the most
numerous and important category of the recent treason cases. 59
58 south African Institute of Race Relations, Survey ofRace Relations in South Africa, 1982, pp. 236-237. Thealternate charges were mainly murder, attempted murder, andcontraventions of the Terrorism Act.
59Including S. v. Mange, 1980(4) S.A., 613 (A.D.) at615-617; S. v. Tsotsobe & Others (Pretoria Supreme Court,1981); S. y. Lubisi & Others, 1982(3) S.A., 113 (A.D.) at113-122; S. v. Mokoena (Pretoria Supreme Court, 1982);S. v. Molotsi & Molefe (1983); S. v. Skweyiya (Natal SupremeCourt, pietermaritzburg, 1983); S. v. Mahlobo & Others (NatalSupreme Court, 1984); and S. v. Mhlanzi & Others (TransvaalSupreme Court, Witwatersrand Local Division, 1984) (sources-
43
The defendants in these trials usually have been young men
who apparently fled South Africa after the 1976 student
uprisings and allegedly underwent military training in foreign
countries, returning subsequently to carry out or attempt to
carry out acts of sabotage against government buildings and
key installations. The overt acts alleged sometimes
included armed attacks on, for instance, police stations,
resulting in the injury or death of policemen. The defendants
were placed on trial often after lengthy periods of detention
during which they had been subjected to various forms of
physical and psychological assault to force them to admit to
specific acts of terrorisrn. 60
While the defendants in these cases were indicted
for statutory offenses for allegedly committing acts involving
violence, the gravamen of the charge of treason against them
appears to have arisen primarily from the accuseds' alleged
membership in and conspiracy with the ANC. The case of State
y Barbara Hogan, heard in 1982 in the Supreme Court
(Witwatersrand Local Division), illustrates the manner in
which the State has sought to establish membership in the ANC
alone as amounting to participation in a treasonable conspir-
Southern Africa project files; Survey of Race Relations, 1981,p. 83; 1983, p. 560; Rand Daily Mail, October 19, 1982).
60 As for instance in the case of S. v. Mogoerane & Otherswhere the accused contested the validity of the confessionsmade to the police on the basis that they had been made as aresult of assault and torture by electric shock while theywere being held by the Security Police (Survey of RaceRelations, 1982, p. 237).
44
acy. In commenting on this trial, the Johannesburg Financial
Mail observed:
evidently the legal approach of the Attorney-General'soffice has shifted to moulding common law precedentrather than utilising the numerous statutory toolsavailable. In the last three years charges of treasonhave increased in number against people who haveundergone military training and who have beeninfiltrated back to commit sabotage and other acts ofviolence. [The Hogan trial] is the first charge oftreason where there was no question of violent actsinvolved. 61
In the indictment Hogan was accused of being a member
of the ANC and of associating herself with its unlawful aim
of overthrowing the government "by means of violence or
means which envisage violence and by other means, including
the crippling or prejudicing of industries or undertakings
generally in the Republic." Accordingly, the state claimed,
the accused was guilty of high treason. In amplification of
this charge the indictment alleged that during the period
1977 to 1981 the accused unlawfully and with hostile intent
against the State conspired with the ANC, its members and
supporters to further the aims of the ANC, and committed or
attempted to commit various acts in furtherance of that
conspiracy. The overt acts alleged included joining the ANC
in 1977, agreeing to convey information on labor matters to
the ANC, contacting exiled ANC officials, and recruiting new
members for the ANC. In addition it was alleged that the
accused, in furtherance of the ANC aims, had negotiated
61Financial Mail, October 19, 1982.
45
with the South African Allied Workers' Union (SAAWU) to
establish an Unemployed Workers' Union had worked as a
volunteer with an unemployment bureau for Blacks, and in
various capacities with other similar organizations.
Barbara Hogan entered a plea of not guilty to the main
count of high treason and to the first alternate count of
participating in terroristic activities (under the Terrorism
Act of 1967), but pleaded guilty to two charges under the
Internal Security Act (1950) relating to her admitted member-
ship in a banned organization. The State refused to accept
that her membership in the ANC amounted to a mere technical
breach of statutory law, rather than common-law treason. As
Judge Van Dyk noted in his judgment on October 20, it is
"clear that the State inter alia relies upon the acts of Hogan.in joining the ANC ••• in 1977 and thereafter working for
the ANC from 1977 to 1981 to prove the conspiracy to commit
treason, alternatively terrorism, and that the acts ••• are
alleged to be treasonable, alternatively terroristic in
nature, because of the accused's association with the ANC and
the fact that they were allegedly committed in furtherance of
its aims and objects."62
Barbara Hogan was found guilty of treason and was
sentenced to ten years imprisonment. In reaching his conclu-
sion Judge Van Dyk had dismissed the arguments of Advocate
George Bizos on behalf of the accused regarding the
62Judgment in S. v. Hogan, p. 18.
46
essentially non-violent nature of her actions. Van Dyk
considered that to be irrelevant, asserting that the overt
acts necessary for treason can manifest themselves "in
perfectly legal behaviour." They are treasonous if performed
with the ultimate aim of assisting the enemy Or weakening the
efforts against the enemy.63 Primarily on the basis of the
testimony of a police spy, Cpt. Craig Williamson, Judge van,
Dyk concluded that the ANC regarded itself as being at war
with the Republic of South Africa on all fronts, that every
thing the ANC did was aimed at the violent overthrow of the
State, and that the encouragement of non-violent political
forms of struggle, as for instance in the organizing of
unemployed workers, was simply a tactic used to achieve the
overall aim of overthrowing the State by violence. 64 Accord-
ingly, he argued, "by joining the ANC, and thereafter,
performing the specific acts which have been proved to have
been performed by her, [Hogan] signified by her conduct her
agreement with all the aims of the organization and has
therefore made herself guilty of a conspiracy to commit
treason. ,,65
There appear to have been a variety of reasons for the
recent resurgence in the State's use of the common law
treason charge against political opponents. One purely
63Judgment in S. v. Hogan, p. 22.
64 Idem , pp. 22-31.
65 Idem , p. 40.
47
technical reason concerns the simplification of the proce
dures for proof in criminal cases, including treason, as a
result of an amendment to the Criminal Procedure Act in
1977. Prior to that year every overt act of treason required
the corroborating testimony of at least two competent
witnesses. 66 As a consequence of the 1977 amendment to the
Act only one competent witness is currently required. 67
Treason has become, therefore, easier to prove.
More significant, however, was the South African
.g,ove.rnrnent' s sensi tivity to the lo'ngstanding interna tional
criticism of its use of statutory offenses, such as "terror-
ism" as broadly defined by the 1967 Terrorism Act, especially
where they carried the death penalty. Treason, as defined in
common law, was obviously not an offense created by the
apartheid State, but one which was common to the legal
tradition of South Africa's major western allies. 68
The South African State's resort to the use of the charge
of treason against its opponents occurred in the context of
66 In R.v.Hennig,1943 S.A. 172 (A.D.) at 176,181, theoriginal conviction was overturned because the provisions ofthe earlier Criminal Procedure Act with respect to thetestimony of two credible witnesses had not been complied with.
67 Criminal Procedure Act, No. 51 of 1977, sec.208;Gardiner and Lansdown, South African Criminal Law and Procedure, vol.2,p.991.
68 see infra note 104. It should be noted, though, thatthe Prosecution in recent treason cases has invariably joineda main charge of treason with alternate charges under thesecurity laws. The State has not been prepared to abandon theprocedural advantages of charges under the latter.
48
continued and heightened popular resistance to the apartheid
system, and in the aftermath of a crisis within the ruling
Nationalist Party government which led to the emergence of the
South African military as a significant political force.
Since the mid-1970s the white minority govenment had been
forced into a defensive posture by the growth of the
independent trade union movement, black student militancy, the
expansion of grassroots community organizations and the
resurgence in popularity of the banned African National
Congress (ANC). The Soweto and related uprisings of 1976 and
1977 and the brutal police response had underscored the
inability of the Vorster government to maintain control over
the economically important urban black population. In
1978 Vorster was replaced as Prime Minister by P.W. Botha, the
Minister of Defence for fourteen years. Under the change of
power, the military became increasingly influential in the
formulation of all aspects of state policy, particularly
through its presence in the crucial State Security Council,
and the close relationship between Botha and his Minister of
Defence, General Magnus Malan. 69
The increasing militarization of South African society
was accompanied by the official propagation of what was in
effect a counter-insurgency or counter-revolutionary doctrine,
69 Davies et aI, The Struggle for South Africa,vol. 1, pp. 3242, 182-185; Philip Frankel, Pretoria'sPraetorians Civil-Military relations in South Africa, (CUP,Cambridge, 1984), pp.34-35,68
49
known as "Total strategy". Malan was a major architect of the
1977 White Paper on Defence which had called for a 'total
strategy' to counter "the multi-dimensional onslaught against
the Republic of South Africa in the ideological, military,
economic, social, psychological, cultural, political and
diplomatic fields.,,70 Co-ordinated action between government
departments and institutions, and other influential groups,
such as the business sector, was needed to counter what Malan
called the "total war" against South Africa. 7l
Since 1979, the Botha government strategy has involved
combining military force, used both regionally and internally
in conjunction with police power, with a package of reforms
designed to cut the ground from beneath the feet of its
domestic opponents, and incidentally its international
critics, while preserving white supremacy.72 In this context
the State's use of the charge of treason achieves a signif-
70 Frankel, idem, pp.46-47,54-56,62
71 Kenneth Grundy, The Rise of the South African SecurityEstablishment (Johannesburg: South African Institute ofInternational Affairs, 1983), p. 4.
72 Frankel, Pretoria's Praetorians, pp.52,58,69. It is nocoincidence that two crucial commissions of inquiry, theWiehahn and the Riekert which recommended certain changes inthe system of job reservation and the pass laws governing theposition of urban black workers and their families, reportedin 1979. In that same year two other important commissions,the Rabie and the Hoexter, were established to enquire intothe operation of the security laws and the structure of thecourts (Davies et aI, The Struggle for South Africa,pp.40,177; the Report of the Commission of Enquiry intoSecurity Legislation, February 1982, para. 1.1; The Report ofthe Commission of Enquiry into the Structure and Functioningof the Courts, 1983, Part A, para.l.l.l)
50
icant propaganda goal. It is an attempt to stigmatize
anti-apartheid activists as criminals and agents of foreign
enemies engaged in a "total onslaught" against South Africa.
In attempting to justify the imposition of harsh
sentences in recent treason cases some jUdges have referred to
the country being in a state of war. 73 The "vagueness and
openness to abuse of the definition of treason," as professor
Karis noted,74 has faciliated this process of criminalizing
the actions of government opponents. Any action, however
peacefully conducted, can be construed as treasonable provided
the State can demonstrate the requisite hostile intent in the
accused. Typically they have attempted to do this through
alledging the existence of a conspiracy between the accused
and the banned African National Congress. with the indictment
for treason of sixteen leading members of the united Demo
cratic Front, none of whom are members of the ANC,75 the
South African government has moved to further choke off the
few channels remaining to the disenfranchised majority to
bring about change peacefully.
73 For example, Mr. Justice Van Dyk in S.v.Hogan (Financial Mail, October 29, 1982); Mr. Acting Justice Myburgh inS.v.Niehaus & Lourens (Rand Daily Mail, Nov. 29, 1983); andChief Justice Rumpff in S.v.Mange, 1980(4) S.A., 613 (A.D.),at 619.
74 In "The South African Treason Trial", p.234
75 In contrast with the admissions made in S.v.Hogan andS.v.Niehaus & Lourens, two other cases where no acts ofviolence had been alleged (Survey of Race Relations, 1983,pp.560-56l) •
51
Part II: The United Democratic Front Treason Trial
Section 1: The Main Count - Treason
In September 1985 the trial for treason of sixteen
leading members of the UDF and affiliated organizations will
begin in the Supreme Court (Natal Provincial Division) in.
pietermaritizburg. Arguments on the motion filed by the
defense to quash the indictment will be heard on August 5th.
The accused are facing a main charge 'of treason, the crux of
which concerns an alleged conspiracy between them and a number
of banned organizations. In the preamble to the indictment,
the State claimed that the defendants and the organizations
which they represent76 had acted to further the aims of a
"Revolutionary Alliance" formed between the banned African
National Congress (ANC) and South African Communist Party
(SACP), together with the South African Congress of Trade
Unions (SACTU) .77 The State made a number of assertions
76 The United Democratic Front (UDF) and 4 of itsaff il iated organiza tions: the South At r ican All i ed Worker s I
Union (SAAWU), the Natal Indian Congress (NIC), the TransvaalIndian Congress (TIC), and the Release Mandela Committee(RMC). See Appendix B for profiles of these organizations.
77The ANC was declared an unlawful organization by virtueof Proclamation R. 119 of 8 April 1960, read with section 22of the General Law Further Amendment Act, Act No. 93 of 1963,and with sections 1 and 73 of the Internal Security Act(1982). The SACP was declared an unlawful organization interms of section 2 of the Internal Security Act (1950), readwith Proclamation R. 305 of 13 November 1964, with Proclamation R. 38 of 4 February 1966, and sections 1 and 73 of theInternal Security Act (1982). SACTU was never explicitlybanned, though has been regarded by the Nationalist Party
52
concerning these latter organizations. The ANC, according to
the indictment, regarded itself as being "engaged in a revolu
tionary struggle for the armed seizure of power in the
Republic of south Africa." TO accomplish this object the ANC
"aims and endeavors to unlawfully overthrow the lawfully
establ ished Government of the Republ ic of south Afr ica" by
violent and/or any other unlawful means. The SACP, similarly,
"aims and endeavors to unlaWfully overthrow the lawfully
established Government" by violent and/or other unlawful
means. Finally SACTU aims "to organize workers in the
Republic, whether employed or unemployed, to playa militant
role in a revolution in the Republic, to bring about a
revolutionary change in the economic, social and political
system in the Republic." The State alleged that these three
organizations had conspired with one another and had joined in
a "revolutionary alliance" in order to further the aims of
overthrowing the Government by violent and/or other unlawful
means. The final result of this whole campaign would be the
armed seizure of Government power by the Revolutionary
Alliance led by the ANC. 78
The State further alleged that the Freedom Charter, since
its adoption by the ANC and other organizations in 1955,79 was
government as the trade union wing of the ANC. Since 1964 ithas been forced to operate underground and in exile.
78preamble in the Indictment, paras 1.1 - 4.1.4.
79 see Appendix C for a copy of this document.
53
regarded by the Revolutionary Alliance as its political
program and policy document, the principles of which could
only be implemented in the Republic through a violent revolu-
tion. Nevertheless, the state alleged, the Alliance also
aimed at encouraging "non-violent political forms of struggle
with the overall object of creating a climate favorable to the
Revolutionary Alliance and, therefore, for the revolution, in
order to bring about a revolutionary change in the economic,
social and political system in the Republic." These
non-violent tactics allegedly included:
( i)
(i i)
(i i i)
(i v)
( v)
(v i)
(vi i)
non-collaboration by workers, strikes,boycotts and demonstrations;
the mass mobilization and politicization ofall the people;
the propagation for the unconditional releaseof all the revolutionary leaders and/or ofall the political prisoners in jails insidethe Republ ic;
the return of leaders in exile;
the popularization of leaders of the Revolutionary Alliance;
the popularization of the Freedom Charter;and
the popularization of the so-called peoples'organizations. 80
The first category of the alleged tactics and SACTU were
focused upon in the preamble. SACTU, with the alleged object
of overthrowing the Government by unlawful means, was
endeavoring:
80preamble to the Indictment, paras 4.2 - 4.5.1.
54
( i)
(i i)
(i i i)
to create a trade union consciousnessamongst the workers, to raise that consciousness to the level of political and classconsciousness, with tne ultimate aim ofcreating a revolutionary consciousness;
to organize unemployed workers in theRepublic in an Unemployed Workers Union inorder to strengthen the Trade Union Movementby preventing the unemployed from taking overthe jobs of striking workers, therebycreating a political instrument to promotethe unity of the working class in orderto cripple, prejudice or interrupt industriesor undertakings generally in the Republic;and
to organize all trade unions into IndustrialUnions in order to facilitate the co-ordination of nationwide strike- andboycott-actions within the same industry, inorder to cripple prejudice or interruptindustries and undertakings generally in theRepubl ic. 81
Following this review of the alleged aims of and methods
employed by the ANC, SACP and SACTU, the state then moved to
the substance of its charge of treason against the
defendants. It stated that:
(1) the Revolutionary Alliance has used and isusing the National Executive Committee of theUDF and/or other leaders of the UDF to carryout its tactical program (specifically points(ii) - (vii) listed above);
(2) the South African Allied Workers' Union(SAAWU) had implemented and propagated theconstitution and Declaration of Principles ofSACTU, and sought to further the aims andobjectives of SACTU;
(3) the Natal Indian Congress (NIC) and TransvaalIndian Congress (TIC), as former affiliates
81~, paras. 4.6 - 4.6.1. This language was drafted toparallel that of section 54 of the Internal Security Act(1982).
55
of the South African Indian Congress (SAIC)which, together with the ANC and otherorganizations had formed the CongressAlliance and were co-signatories with them ofthe Freedom Charter, were committed to theobjectives of the Congress Alliance as laiddown in the Freedom Charter. Through theiridentification with the Congress Alliancewhich shared the same violent objectivesof the Revolutionary Alliance, the NIC andTIC were committed to the tactical program ofthe latter (specifically points (ii) - (vii)above);82 and, finally,
(4) the Release Mandela Committee (RMC), incalling for the unconditional release of allpolitical prisoners, the end of the banning
"'andde'tention -systems, the return of allexi~es, and the hold~ng of a NationalConvention for the creation of a "so-calledtrue, non-racial, democratic.society,"has identified and associated itself with theRevolutionary Alliance, in particular withthe ANC. By popularizing the symbols of theAlliance and its program (the FreedomCharter), the RMC.has aimed to create afavorable climate for the Alliance and sofurther its aims and objects. 83
82 The Congress Alliance involved the ANC, the SAIC, theColoured People's Congress, the Congress of Democrats (anorganization of democratic whites) and, after 1955, SACTU,under the leadership of the ANC. In June, 1955, 3,000delegates from these organizations gathered at Kliptown,outside Johannesburg, and adopted the Freedom Charter asexpressing the basic demands of the people of South Africa[Davies et aI, The struggle for South Africa, vol.2, p. 286].In para 7.1 of the Preamble to the Indictment reference ismade to "the so-called Dadoo-Xuma-Naicker Pact in 1946 whichlaid a foundation for unity in action" between the signatories(ANC, NIC and TIC). This, according to the Indictment, becameknown as the "Congress Movement." Actually the pact wassigned in 1947 and involved the ANC and the SAIC. Dr. YusufDadoo was a leading member of the SAIC and recently, until hisdeath in 1983, was the chairman of the South African CommunistParty. Throughout the Indictment the prosecution attempts tomake much of the alleged connections between Dadoo and thecurrent leadership of the NIC and TIC.
83preamble to the Indictment, paras. 5.1 - 8.4.
56
The state alleges that through their membership and
official positions in the above organizations, each of the
accused had accordingly identified themselves with the aims
and objects of the Revolutionary Alliance. 84 Each of the
accused, are alleged to have,by actions and/or omissions,
conspired with the Revolutionary Alliance, with its members
and/or supporters, with the other accused, with a number of
specified individuals,85 with speakers, organizers of and
84 It is interesting to note that no reference is made tothe position of any of the accused in the UDF. Ramgobin,Sewpershad, Naidoo, Gumede and David are linked in theindictment to the NIC; Jassat, Saloojee and Mohamed to theTIC; Mokoena, Nkondo, Gumede and Sisulu to the RMC; andGqweta, Njikalana, Kikine and Ngcobo to SAAWU. There is alsono reference to accused no. 10, Frank Chikane. It may be thatthe State has chosen to play down the UDF dimension of thistrial -- President P.W. Botha, for instance, claimed in aletter to Senator Kennedy on 27 February, 1985, that "the factthat those who are charged fill some leadership roles in theUDF is coincidental." Nevertheless, the UDF has been singledout for systematic attack as an "ANC Front" by the Minister ofLaw and Order, Louis Le Grange, since 1983 and most intensively so in the past six months. So much so that Mr. JusticeMilne sent a telegram to the government in late April warningthem not to anticipate the issue about which he must forma judgement in the trial itself. He also issued a similarwarning to the press with respect to a possible violation ofthe sub judice rule (reported in the Johannesburg Star May 27,1985) •
85 Oscar Mpeta, Terror Lekota, Billy Nair, Dorothy Nyembeand Stephen Tshweta. Mpeta, a 75-year-old organizer for theFood and Canning Workers' Union (one of the founder unions ofSACTU) and Patron of the UDF, recently lost an appeal againsta five-year sentence for offenses under the Terrorism Act. Aplea for clemency to the State President has been made on hisbehalf. Lekota, the national publicity secretary of the UDF,was detained under section 29 of the Internal Security Act(1982) on April 24, 1985. On June 11 he was indicted fortreason along with 21 others. The trial will probably be heldin the Pretoria Supreme Court starting in September. Nair wasformerly a member of the National Executive of SACTU andserved a 20-year sentence on Robben Island. He was one of the
57
participants in various meetings referred to in the schedules
of the Indictment, with persons unknown to the state, and with
certain witnesses for the state.
The intention of this conspiracy was to further the aims
of the Revolutionary Alliance. In collaboration with others
and/or individually, the accused allegedly had committed
certain acts, during the period 1980 - 1985, in furtherance of
these aims. The state claims that as citizens of the Republic
of South Africa, a sovereign state to whom they owe
allegiance, the accused acted "unlawfully and with hostile
intent against the State to overthrow or to coerce or to
endanger the Government of the Republic." The State maintains
that these actions constitute the crime of treason. 86.The overt acts on which the state is relying to infer
the existence of a treasonable conspiracy between the accused
six men who took refuge in the British Consulate in Durban butwas not arrested when leaving it on December 12, 1984.Tshwete, chairman of the Border branch of the UDF, wasbanished to the Ciskei in November 1984. He was deprived ofhis South African citizenship, declared an alien and barredfrom travelling outside of the Ciskei without a visa. Hisrecent appeal against this order in the Grahamstown SupremeCourt was successful. He had previously served a 12 yearsentence on Robben Island and a 3 year banning order followinghis release in 1979. Nyembe, a former president of the NatalANC Women's League, was released from prison in 1984 afterserving a fifteen-year sentence.
86 Preamble to the Indictment, paras. 9.1 - 10. Althoughthe so-called "Revolutionary Alliance" is central to theState's conception of the treasonable conspiracy, the Statehas admitted that it "does not know when, where and how theRevolutionary Alliance was formed" and "does not know exactlywhen, where and how each accused joined the conspiracy"(Further Particulars in Response to the Request for FurtherParticulars by the Accused, 9 May 1985, vol 1, pp. 12,14).
58
and the alleged ANC, SACP and SACTU alliance, are listed in
over 500 pages of schedules attached to the main part of the
indictment. The lists consist of various public meetings
attended and/or addressed by the accused and the details of
what they are alleged to have said at these meetings. 87 The
state also relies on statements made by others, and songs and
slogans shouted at these meetings, for which the accused are
apparently vicariously responsible. These lists also contain
details of publications which the accused are alleged to have
produced. There are no allegations of specific acts of
violence, nor of membership in the ANC, nor of clandestine
meetings between the accused and alleged members of the ANC.
Section 2: The Alternate Charges
(A) Terrorism Under the Internal Security Act of 1982
The first alternate charge is terrorism under the
Internal Security Act of 1982. This statute was enacted in
87 The listed meetings included: a memorial service inhornor of the former Nobel Prize winner, Chief Albert Luthuli(July 1983); a meeting in June 1982 celebrating the anniversary of the signing of the Freedom Charter; the August 1983rally launching the UDF as a national organization; and theFebruary 1985 meeting held in honor of Bishop Desmond Tutu.The following is typical both of the speeches attributed tothe accused:
" • Mandela has now become the new symbol ofhope for a better South Africa." (Ramgobin)
II • we shall not rest until this Governmentrelease our leaders and have a conference with themso that this country is ruled by the governmentthat will be elected by the people •••• II (Sisulu)
59
1982 to consolidate the mass of security legislation that
existed before that time. Although many highly criticized
aspects of the previous security laws remain in the new Act
(e.g., indefinite incommunicado detention without charge or
trial), there are some improvements, particularly with regard
to the offense of terrorism.
Terrorism is defined in the statute as the commission,
attempt or threat of an act of violence. 88 The act itself
need not be violent as long as the act is performed or
attempted with the aim of "promoting or contributing towards"
an act or threat of violence. 89 A conspiracy to perform such
acts or inciting or encouraging others to do so is also
considered terrori~.90
In order to fit the definition, the act must be done
with the intention to:
A) overthrow or endanger the State authority in theRepubl ic;
B) achieve, bring about or promote any constitutional, political, industrial, social or economicaim or change in the Republic;
C) induce the Government of the Republic to door to abstain from doing any act or to adopt or toabandon a particUlar standpoint; or
D) put in fear or demoralize the general public, aparticUlar population group or the inhabitants ofa particUlar area in the Republic; or to induce
88Internal Security Act, No. 74 of 1982 § 54(1).
89 Ibid .
90 Ibid •
60
the said public or such population group orinhabitants to do or abstain from doing any act. 91
The prosecution's task of proving these broadly defined
intentions is facilitated by presumptions established in the
Internal Security Act. If the prosecution can prove that
any of the acts alleged, resulted in, or was likely to have
resulted in the consequences listed in A - D, then the act
can be presumed to have been committed with the intention to
do so.92
The 1982 Act establishes a number of other presumptions
which facilitate gaining a conviction. Any documents found
in the possession of the accused or produced for any organiza-
tion of which she/he is a member can be used as prima facie
proof of the contents within. 93 Additionally, if one has
attended meetings, distributed publications or promoted the
purposes of any organization, that person is presumed to be a
member or active supporter. 94 These presumptions are all
rebuttable by proof to the contrary constituting the "prepon
derance of probabilities. ,,95 A conviction for terrorism
91 Ibid.
92 Ibid . § 69(5) •
93 Ibid . § 69(4).
94 Ibid. § 69(1) •
95 This is taken from The Report of the Commission ofInquiry into Security Legislation (Rabie Commission Report)§14.4.8.2, p. 203.
61
carries with it the "penalties provided for by law for the
offence of treason," which makes it a capital offense. 96
The acts alleged in the current trial of UDP leaders
are all non-violent. Therefore, in order to convict the
defendants of terrorism the prosecution will have to link
their non-violent acts to some act or threat of violence.
The State would have to prove either that these acts were
performed with the aim of "bringing about" or "contributing
towards" violent acts or threats of violence, or that the
acts incited or encouraged others to commit violent acts or
threats.
If the State does not succeed in proving that the
defendants have committed terrorism, th~re is still a chance
that they could be convicted of subversion or sabotage, lesser
offenses included within terrorism. 97 These offenses are
easier to prove, as the acts involved do not necessarily have
to be linked to violence. To be convicted of subversion, one
must, with the same intent as described for terrorism, commit
any act which produces a number of broadly defined results. 98
96Internal Security Act [1982] § 54(1).
97 Ibid . § 54(6). The section provides that if theevidence produced in a Terrorism trial is not sufficient toconvict of that offense, but if sufficient to convict ofSabotage or Subversion, then the accused may be found guiltyof these offenses.
98 Ibid . § 54(2). The results named are:
a) causes or promotes general dislocation at anyplace in the Republic, or attempts to do SOi
62
b) cripples, prejudices or interrupts at anYplace in the Republic any industry orundertaking, or industries or undertakingsgenerally, or the production, supply ordistribution of commodities or foodstuffs, orattempts to do SOi
c) interrupts, impedes or endangers at any placein the Republic the manufacture, storage,generation, distribution, rendering or supplyof fuel, petroleum products, energy, light,power or water or of sanitary, medical,health, educational, police, fire-fighting,ambulance, postal or telecommunicationservices or radio or television transmitting,broadcasting or receiving services or anyother public service, or attempts to do SOi
d) endangers, damages, destroys, renders uselessor unserviceable or puts out of action at anyplace in the Republic any installation forthe rendering or supply of any servicereferred to in paragraph (c), any prohibitedplace or any public building, or attempts todo SOi
e) prevents or hampers, or deters any personfrom assisting in, the maintenace of law andorder at any place in the Republic, orattempts to do SOi
f) impedes or endangers at any place in theRepublic the free movement of any traffic onland, at sea or in the air, or attempts to doSOi
g) causes, encourages or foments feelings ofhostility between different population groupsor parts of population groups of the Republic, or attempts to do SOi
h) destroys, pollutes or contaminates any watersupply which is intended for public use in
-the Republic, or attempts to do SOi
i) in the Republic or elsewhere performs any actor attempts, consents or takes any steps toperform any act which results in or couldhave resulted in or promotes or could have
63
To be convicted of sabotage, the critical element is that the
accused can be shown to have committed or attempted to commit
any act with an intent which falls within the statutory
definitions. 99 The nature of the act itself is immaterial,
promoted the commission of any of the acts orthe bringing about of any of the resultscontemplated in paragraphs (a) to (h),inclusive;
j) conspires with any other person to commit,bring about or perform any of the acts orresults contemplated in paragraphs (a) to(-h), inc}usi·ve, or any-act contemplated inparagraph (i), or to aid in the commission,bringing about or performance thereof; or
k) incites, instigates, commands, aids, advises,encourages or procures any other person tocommit, bring about or perform such act or result •
99IQiQ. § 54(3) The intentions defined are:•
a) endanger the safety, health or interests of thepublic at any place in the Republic;
b) destroy, pollute or contaminate any water supply inthe Republic which is intended for pUblic use;
c) interrupt, impede or endanger at any place in theRepublic the manufacture, storage, generation,distribution, rendering or supply of fuel,petroleum products, energy, light power or water,or of sanitary, medical, health, educational,police, fire-fighting, ambulance, postal ortelecommunication services or radio or televisiontransmitting, broadcasting or receiving services orany other public service;
d) endanger, damage, destroy, render useless orunserviceable or put out of action at any place inthe Republic any installation for the rendering orsupply of any service referred to in paragraph (c),any prohibited place or any public building;
e) cripple, prejudice or interrupt at any place in theRepublic any industry or undertaking or industriesgenerally or the production, supply or distribution
64
the crime is determined solely by the mens rea. The pre
viously mentioned statutory presumptions apply to these
offenses as well. The maximum prison sentence for subversion
is 25 yearslOO and for sabotage is 20 years. lOl
(B) Terrorism Actiyities Under the Terrorism Act of 1967
The second alternate charge is brought under the
Terrorism Act No. 83 of 1967. This act was repealed by the
Internal Security Act of 1982, yet the government has chosen
to use this older statute against seven of the sixteen accused
with respect to activities alleged to have taken place between
1980 and July 1982, just prior to the enactment of the newer
Internal Security Act. Four of those charged under the
Terrorism Act are all leaders of the South African Allied
Workers' Union (SAAWU) .102 The other three are all leaders of
the Release Mandela Committee. l03
of commodities or foodstuffs; or
f) impede or endanger at any place in the Republic thefree movement of any traffic on land, at sea or inthe air.
100IQiQ. § 54(2). A 25 year sentence can only be imposedif the Act charged involved violence. Otherwise the maximumsentence is 20 years.
lOlIbid.
102These four are: Thozamile Gqweta, Sisa Njikelana,Samuel Bhekuyise Kikine, and Isaac Ngcobo.
103curtis Nkondo, Archie Gumede and Paul David.
65
The Terrorism Act was controversial and widely criticized
even by South African legal scholars. l04 Certain provisions
make it extremely easy to get a conviction for even minor
non-violent acts. A conviction under the Terrorism Act
carries with it a minimum five year sentence and the possi
bility of a death sentence. 105
Under the statutory definition, an offense has occurred
when a person commits, attempts or conspires to commit any act
104~ A. S. Mathews Law and Ord,er .and,-L,iberty in SouthAfrica, Berkeley, University of California Press 1972 and JohnDugard, Human Rights and the South African Legal Order,Princeton, Princeton University Press 1978, pp. 262-264. Seealso The Rabie Commission Report supra 94. The Rabie Commission, a commission appointed by the South African StatePresident in 1979 to study the security legislation andrecommend reforms was also critical of aspects of the Terrorism Act. Their report was criticized as not going far enoughin their critique and recommendations but, the Commissionadmitted that there was "considerable justification" forcriticism of the Terrorism Act. The Rabie Commissionconcluded that the Terrorism Act was particularly "unsatisfactory" in that there existed the possibility that a personmight be gUilty of the offense of participation in terroristicactivities without having used or even threatened or intendedviolence •••• " The Commission criticized the presumptionprovisions and in the Rabie Commission draft bill (whichsubsequently became the Internal Security Act of 1982) thepresumption section was restricted. The Commission alsorecommended that the minimum sentence requirement be dropped,stating that sentence discretion is a proper function of theCourt.
The Act was described as arbitrary by the United NationsSecurity Council (Security Council Resolution 245, 1968) andeven the Association of the Bar of the City of New Yorkdescribed it as offending "basic concepts of justice, dueprocess and the rule of law accepted by civilized nations"(Resolution of 20 December 1967).
10STerrorism Act No. 83 of 1967 § 2(1).
66
with intent to endanger the maintenance of law. 106 Once the
requisite intent "to endanger the maintenance of law and
order" is proven, any act whatsoever constitutes terrorism and
exposes the actor to potentially stiff penalties. Thus, there
is no requirement that the act be otherwise unlawful or
violent, only that it be done with the requisite intent.
Proof of that requisite intent is facilitated by the
provisions of section 2(2) of the Terrorism Act which states
that any act proven will be presumed to have been committed
with the intent to endanger the maintenance of law and order
if the commission of such act had or was likely to have had
any of the broad results named. 107 This presumption is
l06 Ibid •
l07lQiQ. § 2(2) The results named are:
a) to hamper or to deter any person from assisting inthe maintenance of law and order;
b) to promote, by intimidation, the achievement of anyobject;
c) to cause or promote general dislocation,disturbance or disorder;
d) to cripple or prejudice any industry or undertakingor industries or undertakings generally or theproduction or distribution of commoditie~ orfoodstuffs at any place;
e) to cause, encourage or further an insurrection orforcible resistance to the Government or theAdministration of the territory;
f) to further or encourage the achievement of anypolitical aim, including the bringing about of anysocial or economic change, by violence or forciblemeans or by the intervention of or in accordancewith the direction or under the guidance of or in
67
rebuttable only if the defendant can prove "beyond a reason
able doubt" that she/he did not intend any of the named
results. lOa It is to be noted that it is the intent to cause
the consequences that must be rebutted, not the intent to
endanger the maintenance of law and order. Thus, it is
irrebuttably presumed that the intent to bring about anY of
the very broadly defined results is equal to the intent to
endanger the maintenance of law and order. Because the list
of consequences could be intended by one committing seemingly
co-cooperation with or with the assistance of anyforeign government or any foreign or internationalbody or institution;
g) to cause serious bodily injury to or endanger thesafety of any person;
h) to cause substantial financial loss to any personor the state;
i) to cause, encourage or further feelings ofhostility between the White and other inhabitantsof the Republic;
j) to damage, destroy, endanger, interrupt, renderuseless or unserviceable or put out of action thesupply or distribution at any place of light,power, fuel, foodstuffs or water, or of sanitary,medical, fire extinguishing, postal, telephone ortelegraph services or installations, or radiotransmitting, broadcasting or receiving services orinstallations;
k) to obstruct or endanger the free movement of anytraffic on land, at sea or in the air;
1) to embarrass the administration of the affairs ofthe State.
l08 Ibid •
68
innocent, non-violent acts, one could be sentenced to death
for such non-violent acts.
(C) Furtherance of Objects of an Unlawful Organization
The third alternate charge is "furtherance of the objects
of an unlawful organization" under section 13 of the Internal
Security Act of 1982. This provision of the Act states that
no person shall "advocate, advise, defend or encourage the
achievement of any of the objects of the unlawful organization
or objects similar to the objects of such organization, or
perform any other act of whatever nature which is calculated
to further the achievement of any such object. "109 An
"unl awful organiza tion" is one tha t has been so declared by
the Minister of Law and Order because it allegedly promotes
"communi sm" or "engage s in activ i tie s which endange r the
security of the State or the maintenance of law and order. ,,110
It can be presumed from the allegations in the indict
ment that the unlawful organizations to which this charge
refers are the African National Congress (ANC) and the South
African Communist Party (SACP). These organizations are
repeatedly mentioned in the indictment and form a part of
the so-called "revolutionary alliance" that the government
claims exists. They have been officially declared unlawful
109Internal Security Act [1982] § 13(1) (a) (v).
ll0 Ibid • § 4.
69
organizations,lll thus "furthering their aims" is a crime
under § 13 (1) (A) (V) of the Internal Secur i ty Act.
It is to be noted that not only is encouraging or
defending the objectives of these organizations illegal, but
also encouraging or defending objects similar to the objects
of those organizations is equally illegal. The use of the
phrase "similar to" broadens the definition of the crime
significantly. In order to be convicted the accused need
not have any direct link to such unlawful organizations. A
conviction is punishable by up to ten years imprisonment.
(D) Furtherance of the Objects of Communism
Only six of the sixteen accused have been charged with
"furtherance of the objects of communism" under the Internal
Security Act of 1982. 112 The Act makes it illegal to advo-
cate, advise, defend or encourage the achievement of any
of the "objects of communism" or perform any act "calculated
to further the achievement thereof. ,,113
The official definitions of "communism" in the Internal
Security Act includes any doctrine, ideology or scheme which
lllsee supra note 77.
112The six charged with this offense are: Mewa Ramgobin,George Sewpersadh, M. J. Naidoo, Essop Jassat, Paul David,Cassim Saloojee.
113Internal Security Act [1982] § 55.
70
(a) is based on the tenants of recognized communisttheorists, or "aims at the establishment of anyform of socialism or collective ownership;"
(b) aims at establishing a one party "despotic form ofgovernment" by the polarization of classes;
(c) aims at bringing about change in the Republic incooperation with or under the guidance of aforeign government or international institutionwhose purpose is to bring about a government inthe Republic as described in (a) or (b) .114
To gain a conviction, the State must establish that the
named defendants either advocated the achievement of the
aims listed above, or performed acts calculated to do so.
Upon conviction the accused can be imprisoned for up to 10
years. 115
(E) Furtherance of the Objects of Communism and/or the ANC
The fifth alternate charge, "furtherance of the objects
of communism and/or the ANC," applies to only nine of the
sixteen defendants. 116 Again, the State is using an older
statute which has been repealed by the Internal Security Act
of 1982, that is, the Internal Security Act of 1950. 117 The
illegal activities alleged under this count were committed
just prior to the enactment of the newer statute. The main
differences between the older and newer statutes are the
114 Ibid • § 1.
l15 Ibid • § 55.
l16The nine charged with this offense are: MewaRamgobin, George Sewpersadh, M. J. Naidoo, Essop Jasset, PaulDavid, Thozamile Gqweta, Sisa Njikelana, Sam Kikine, Isaac Ngcobo.
117Internal Security Act No. 44 of 1950.
71
definition of communism and :the inclusion in the older Act
of specific provisions regarding the ANC. 118 The definition
of the offense itself is basically the same as was discussed
in the preceding section.
The definition of communism in the older Act is broader
than in the 1982 Internal Security Act. It includes as
communist any doctrine which:
"aims at bringing about any political, industrial,social or economic change within the Republic bythe promotion of disturbance or disorder, byunlawful a.cts or omissions or by the threat ofsuch acts or omissions or by means which includethe promotion of disturbance or disorder, or suchor omissions or threat. ,,119
Thus, "communism" includes any doctrine which seeks to bring
about any change through the threat of "disorder" or "unlaw-
ful" means. The ideological basis for the doctrine is
irrelevant under the statutory definition.
The Unlawful Organization Act of 1960 expanded the
sections of the older Internal Security Act [1950] that
referred to the "furtherance of the objects of communism. ,,120
That Act made those sections applicable not only to
"communism" but al so to "unlawful organiza tions." Since the
ANC was declared an unlawful organization in 1960, the
relevant sections were amended to refer to the furtherance of
the objects of the ANC. All of this was consolidated in the
ll8 see Unlawful Organization Act No. 34 of 1960.
ll9Interna1 Security Act [ 1950] § 1.
120un1awfu1 Organizations Act No. 34 of 1960 § 2(d).
72
Unlawful Organization sections of the Internal Security Act of
1982. 121
Finally, the older Act contains a mandatory minimum
sentence of one year. 122 The maximum sentence, as in the
newer Act, is ten years.
CONCLUSION
Since 1979 the South African government has resorted
frequently to the use of the common-law charge of treason
against anti-apartheid activists. Used initially in trials
where the defendants were accused of sabotage or other acts
of violence, the scope of this offense was expanded with the
1982 conviction for treason of Barbara Hogan. In that trial
non-violent activities were construed as potentially treason
able acts, the element of 'hostile intent' inferred from the
accused's alleged connections with the banned African National
Congress.
The current treason trial of leaders of the United Demo
cratic Front marks a new stage in what the State regards
as treason. The trial arose out of events surrounding the
government's imposition of the new constitution, which was
overwhelmingly rejected by the majority of South Africa's
population during the 1984 elections. The tactics employed
by the United Democratic Front in its campaign against the
l2l See discussion of the third alternate charge infra.
l22Internal Security Act [1950], §11.
73
constitution were peaceful. In the indictment against the
UDF leaders the state is attempting to infer the existence
of a treasonable conspiracy from non-violent activities,
mainly utterances of the accused which in other countries
would be protected by norms of free speech. Should the
state succeed in securing a conviction in this trial, the
result may well lead to "renewed despair in the utility of
legal political activities" to bring about fundamental
change in the apartheid system. 123
123Raymond Suttner, "The Criminalization ofAnti-Apartheid Activities in South Africa," paper presented tothe Seminar on the Legal Aspects of Apartheid, co-sponsored bythe Lawyers' Committee for Civil Rights Under Law and theIndividual Rights and Responsibilities Section and theStanding Committee on World Order Under Law of the AmericanBar Association, Washington, D.C., July 6-7, 1985, p. 36.
74
"'",
:;'
".-
....
APPt;l'lLJ.l.AA~A~------------------:------------------
THE UNITED DEMOCRATIC FRONT TREASON TRIAL DEFENDANTS
1. Albertina Sisulu - aged 67; one of the UDP national presidents! has been subjected to restriction orders from1964-~1, and was under house arrest from 1969-79; herhusband, Walter, is serving a life sentence following hisconviction in 1963 for contravening the country's securitylaws.
2. Archie Gurnede - aged 70; one of the UDP national presidentsand a leading member of the Natal Indian Congress (NIC)*; alawyer; was charged with treason and acquitted along with156 others in 1956-60; was detained without trial twice inthe 1960s.
3. The Bey. Prank Chikane - aged 34; UDP vice-president(Transvaal branch); General Secretary of the Institute forContextual Theology, an ecumenical organization in Johannesburg; has been detained previously three times withoutt ri ale
4. Prof. Ismail Mohamed - aged 54; executive member of the UDF(Transvaal); executive member of the Transvaal IndianCongress (TIC)*; professor of mathematics at the Universityof Witwatersrand (Johannesburg) and graduate of the University of London; was detained without trial in 1977 and 1980.
5.
6.
Cassim Saloojee - treasurer of the UDF; vice-president ofthe TIC. * .Dr. EssoQ Jassat - aged 53; patron of the UDP; president ofthe TIC x
; leading member of various medical associations inSouth Africa.
•
7. *M. J. Naidoo - aged 54; vice-president of the NIC ; alawyer; was restricted under a banning order in 1982-83.
8. George Sewpershad - aged 49; president of the NIC*; alawyer; has been restricted under banning orders; has beenon trial four times between 1973 and 1983 for breach ofsecurity laws, and was acquitted on three occasions withcharges being dropped on the fourth.
9. Mewa Bamoobin - aged 52; national treasurer of the UDF and asenior member of the Natal Indian Congress (NIC)*; abusinessman; was restricted under a succession of banningorders between 1965 and 1983, as was his wife Ela, granddaughter of the late Mahatma Ghandi.
*an organization affiliated to the UDF
10.
11.
12.
13.
14.
15.
16~
Aubr§y Mokoena - aged 37; publicity secretary of the ReleaseMandela Committee (RMC)* and leading member of the UDF; atrained teacher and marketing director of a constructioncompany; has been placed previously under a banning order.
Curtis Nkondo - aged 57; vice-president of the UDF (Transvaal) and chairman of the RMC*; a former chairman of theSowetan Teachers' Action Committee; detained without trialin 1980; was restricted under a three-year banning order.
Paul David - aged 45; a leading member of the RMC (Natal)*;executive member of the NIC*; a lawyer; was detained withouttrial in 1980.
Thozamile Gaweta - aged 30; president of the South AfricanAllied Workers' Union (SAAWU)*; has been detained withouttrial at least seven times between 1979 and 1983; requiredhospitalization' as a result of torture while in detention in1982.
Sam Kikine - aged 36; general secretary-of SAAWU*; wasdetained without trial in 1981-82.
Sisa Njikelana' - aged 29; vice-president of SAAWU*; has beendetained at least seven times without trial between 1979 and1983.
Isaac Nacobo - aged 38; branch treasurer of SAAWU*; has beendetained without trial previously.
;;
*an organization affiliated to the UDF
APPENDIX B
ORGANIZATIONAL PROFILE
United Democratic Front (UDF): the UDF is a coalition ofover 600 women's, student's, worker, youth, community andpolitical organizations across South Africa. It waslaunched as a national organization in August 1983 tocoordinate opposition to the new constitution introduced bythe rUling white minority government. The proposed newconstitution simply entrenched apartheid. It excludes theparticipation of the 73 percent black (African) majority inthe central body politic and extends only limited participation to the country's Indian and Coloured (mixed-race)population. A continued white monopolization of power isguaranteed through the ethnically separate, tricameralparliamentary structure and the nature of the new executivepresidency. The results of the elections, which were heldin August 1984, indicated an overwhelming rejection of thenew constitution. Only 18 percent of the eligible Indianand Coloured voters went to the polls. In June 1984 the UDFwas awarded the prestigious 'Let Live' Peace Award Prize bythe Swedish Government, in recognition of its fight againstthe injustices of apartheid and its commitment to democracy.
Organizations affiliated to the UDF and named in the Indictment
(1) Transvaal Indian Congress (TIC)Natal Indian Congress (NIC): The NIC, which was formedby the Mahatma Gandhi in 1894, developed the tactic ofpassive resistance in campaigns against discriminatorylegislation affecting persons of Indian origin in SouthAfrica. That tactic was later used in the independencestruggle in India, and the civil rights movement in theUnited States. In 1920 the NIC merged with the Congressesof the Transvaal and the Cape to form the South AfricanIndian Congress (SAIC). The SAIC participated, along withother organizations, in the civil disobedience campaigns ofthe 1950s against the apartheid policies of the then newlyelected Nationalist Party government. In the early 1960smany of the SAIC leaders were banned, jailed or forced intoexile. In 1971 a group led by Mewa Ramgobin, currently oneof the UDF leaders on trial for treason, revived the NIC.The TIC was revived in 1983. Both organizations activelycampaigned against the new constitutional proposals and theelections in 1984.
(2) South African Allied Workers' Union (SAAWU): This generalworkers' union grew rapidly after its establishment in theeastern Cape city of East London in 1980. It has taken astrong non-racial line. Apart from organizing workersaround issues of workplace conditions and recognitionagreements with employers, SAAWU has campaigned for anational minimum wage and the implementation of codes of
conduct by foreign companies in South AFrica. SAAWU hascalled for the abolition of the pass laws, the migratorylabor system and an end to the homelands policy. Itsleaders and members have been constantly arrested anddetained by the South African and Ciskeian (homeland)security police. Despite this it has a membership of100,000.
(3) The Release Mandela Committee (RMC): The RMC, which grewout of the 1980 Release Mandela campaign, has chapters inabout a dozen major urban centers across South Africa. TheRMC has campaigned for the release of Nelson Mandela, theimprisoned leader of the African National Congress (ANC),and to highlight the central contribution the country'spolitical prisoners have made in the past and can make to afuture South Africa.