I T S . 2 .

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SOME NOTES

on the

LEGISLATION

involved in

these tri&l3

PRICE l/~

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Published by THE NATIONAL COUNCIL FOR CIVIL LIBERTIES, 46 Westbourne Grove, London, W.2

SOUTH AFRICAN "TREASON" TRIALS

Some Notes on the Legislation Involved in these Trials

F O R E W O R D

In D©cember 1956 more than 150 people were arrested in the course of a

few days in various parts of South Africa on charges of treason, sedition,

breaches of the 'Suppression of Communism Act' and of the Riotous Assemblies Act.

Some of those arrested had in the past been associated with the old South

African Communist Party (declared illegal in 1951) ; many had had no association

with that Party. All appeared to have participated in campaigns against the

South African Government's policy of racial discrimination and segregation.

In 1952, and again in 1953, the N .C .C . L . had because of its concern

at recent developments in repressive legislation in some parts of the Common-

wealth, published material analyzing, and commenting on, some of the new

Dominions'Legislation and in particular on the under-mentioned South African

Actsi-

Suppression of Communism Act (1950 ) and its Amendments

Public Order Act (1953 )

Criminal Lew Amendment Act (1953 ).

Because of the gravity of the actions of the South African Government

we are reprinting the bulk of the notes and comments on these laws, with some

further comment by a member of the N . C . C . L . ' s legal panel on their relation

to today's situation,and on a further piece of legislation:

ftie Riotous Assemblies etc. Act (1956 ),

and an appendix on tho

Law Relating to Treason and Sedition in South Africa.

REPRESSIVE LAWS IN SOUTH AFRICA

The Union of South Africa has built up a substantial body of repressive

legislation in the past six years. Beginning •with the 'Suppression of

Communism Act 1 , 1950 , the South African Parliament has produced one Act after

another •with the object of restricting civil liberty. Until recently

South Africa had a framework of civil liberty in most respects similar

to that existing in Great Britain and the other pre-war dominions,although

of course there was racial legislation "which largely restricted the

enjoyment of this liberty to the whites. he basis of the law was partly

Anglo-Saxon and partly Roman-Dutch. This confused the common law position

of such offences as treason, sedition and public violence. But the dif-

ferences were not so considerable that it could be said that the conception

of civil liberty was substantially different from our own.

There can be no doubt that the Nationalist Governments are engaged in

a persistent attack on this conception. As is so often the case, the

desire to suppress Communism was used as the excuse for the first of its

measures: but from the outset the Suppression of Communism Act attacked

the liberties of many who were not Sommunists, and it has been succeeded by

other measures which progressively make matters worse. Nor are these

racial measures; they apply equally to the "itiites.

SUPPRESSION OF COMMUNISM ACT, as amended

This Act is a threat to civil liberty in the present context. It has

long since achieved its avowed object of destroying the South African Communist

movement in any legal form. It can now be used against any person or

organization expressing views of a generally liberal or socialist nature.

If the Minister has reason to suspect that the purposes, activities or

control of any organization are such that it ought to be declared unlawful,

or that the circumstancos connected with any periodical are such that it

ought to be prohibited, he can appoint an authorized officer to investigate

it (Clause 7 ). This officer is given the widest possible powers to descend

upon an organization or publication without notice, to require the production

of documents, to question individuals, to ascertain who are or havo been

the officers, members or active supporters and to require people to appear

k

before him. The right of questioning extends to any person whom he has •

reasonably grounds for believing to bo in possession of any information

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' • • • • • > • • ' • rrjf;

required by him. A person may be questioned alone, so that he has no

right to legal representation. It is an offence to refuse to answer

questions, unless they tend to incriminate.

It is not difficult for the Minister to find reason to suspect an

organization's an organization may be declared unlawful if one of its

purposes is to further any of the objects of Communism (C1.2 ). This is

not confined to Communism as we understand it but extends to "any doctrine

or scheme,

(a ) which aims at the establishment of a despotic system of

government based on the dictatorship of the Proletariat • . ;: i r

under which one political organization only is recognized

and all other political organizations are suppressed or

eliminated; or

(b) which aims at bringing about any political, industrial,

social,or economic change within the Union bjr the promotion

of disturbance or disorder, by unlawful acts or omissions or

by means which include the promotion of disturbance or dis-

order or such acts or omissions, or threat; or

(c ) which aims at bringing about any political, industrial,

social,or economic change within the Union in accordance with J

the directions or under the guidance of or in co-operation

with any foreign government or any foreign or international

institution whoso purpose or one of whose purposes (professed

or otherwise ) is to promote the establishment within the Union

of any political, industrial, social or economic system identical

with or similar to any system in operation in any country which

has adopted a system of government such as described in (a);or

(d) which aims at the encouragement of feelings of hostility

between European and non-European races of the Union the

consequences of which are calculated to further the achieve-

ment of any object referred to in paragraph (a) or (b )•"

(Clause 1 )

This definition is so wide that it covers a host of possible activities

which are nothing like Communism and it would seem to be the case that a

Nationalist Minister could find reason to suspect practically any organization

or journal -which was opposed to hia p-olicy and could then appoint an

authorized officer whose activities,one would suppose, would lead to

the break-up of most organizations.

The consequences for the individual are equally serious. If he is a

Communist or if his name appears on a list of members of an organization

dissolved as unlawful, or he has committed an offence under the Act

(including such offences as the refusal to answer the questions of a

liquidator ), then a number of restrictions may be imposed upon him. The

net is cast wide. A person who has attended any meeting of any organization

or who has publicly advocated or even encouraged the promotion of its

purposes, or has sold its litorature, is presumed to be a member of that

organization until the contrary is proved (clause 12 ). As if this were

not enough,the definition of a Communist includes a person who has "at

any time professed to be a Communist or who is deemed to be a Communist

because he has at any time, whether in South Africa or not, advsoated,

advised, defended or encouraged the achievement of any of the objects of

Communism or any act or omission calculated to further the achievement

of such object or that he has at any time been a member of an organization

outside South Africa which engaged in activities which were calculated

to further the achievement of any of the objects of Communism". (Cl . l of

the 1950 Amending Act ). A person is to bo given a reasonable opportunity

of making representations before he is "deemed".

The restrictions are that a person may be debarred from all public offices

and,if an M .P . , may be deprived of office. He may be compelled to resign

from office in any organization, or forbidden to take up office or have

to comply with conditions while he holds office (Clause 5 j.

The main sections of tho Act are as follows:-

The long title to this Act declares that its objects are to mako the

Communist Pa^ty illegal and also other organizations promoting Communist

activities, and to prohibit certain periodicals and other publications.

Section 1 contains the definitions of 'Communism', 'Communist', 'The

Communist Party' and 'Unlawful organizations' etc . , the most important of

which are mentioned above.

Section 2 declares the South African Communist Party an unlawful

organization j If the Governor-General is* satisfied that any organization

assists the spreading of Communism, he may by proclamation declare that

organization unlawful. It is contemplated that this provision could be

used against trade unions.

Section 3 provides for the consequences of an organization being declared

unlawful, "which are:-

( l ) offices are abolished, insignia beoome unlawful,and activities

are banned;

(2 ) its property vests in a liquidator;

(3 ) no proceedings may be taken after 14 days to attack the

validity of the proclamation declaring it unlawful and after 12 months no

court has jurisdiction to declare such proclamation invalid;

(4 ) the above apply notwithstanding that the organization is dis-

solved before the proclamation.

Section 4 provides for distributing by the liquidator of the unlawful

organization's surplus assets, vtfiich may be paid to charity. The

liquidator may comp.'.le lists of members or supporters of such organizations.

Section 5 empowers the Minister to direct any member of an unlawful

organization to comply with his directions, to resign anjr office and to

refrain from taking part in any other organization, and may debar him from

taking any public office including membership of either House of Parliament.

Section 6 is aimed at prohibiting any publication expressing views

in support of any unlawful organization? The Governor-General is empowered

to prohibit any publication which promoted Communism, is under the influence

of an unlawful organization,or serves - inter alia - as a means of expressing

•views or r on-eying information which may assist Communism.

Section 7 empowers the Minister to appoint an officer to investigate

the activities of any organization. The officer is given wide powers of

entry, search and interrogation.

Section 9 gives the Minister the power to prohibit meetings or prevent

persons attending meetings to further the objects of Communism.

Section 10 gives the Minister power to prevent any person from being

within any particular area if he thinks such person is likely to advocate

the objects of Communism.

Section 11 provides the penalties for disobedience to the preceding

sections. The penalties are up to 10 years' imprisonment and/or a fine of

£200.. (For instance, any person who defends the achievement of any of the

objects of Communism,whether that achievement has taken place inside

or outside'South Africa - a -wickedness -which has been perpetrated by many

non-Communists - renders himself liable to 10 years' imprisonment.

Section 12. - If a person is alleged to be a member cr active supporter

of an unla-wful organization, or attends its meetings, defends its

purposes., or distributed its publications, it is presumed - unless the

contrary is proved - that he was a member or active supporter thereof.

Section 13 gives the courts power to forfeit property in respect of

•which an offence has been committed.

Section 14 gives power to deport anyone who is not a South African

citizen who has boon convicted of an offence under the Act .

The definition of Communism (quoted above ) is in such vague terms

that any labour or socialist group may come within i t . It defines by

reference to socialist theory and then proceeds to add to this by

particularizing 'despotic system' and 'economic change' by unlawful acts

or even the threat thereof or even the promotion of disturbance. Any

labour leader in South Africa "Who encourages workers to act against

oppression of the Strydom regime i?oes in danger of being labelled an

advocate of Communism. Worse still is the definition of "Communist".

Starting with this vide definition of Communism,any person v/ho is a

supporter of an organization which may incidentally assist 'Communism'

as defined, is deemed to be a Communist. Thus any organization 'which

advicated freedom for Communists to express their opinion could be brought

within this definition,oven though the political complexion of such

organization is what would in England be called ' l iberal ' . Moreover,since

Communism is defined so as to include the encouragement of feelings of

hostility between European and non-European races, calculated inter alia

to produce economic or social change by unlawful acts or omissions, there

is a real danger that this Act may be used against those socialist and

liberal organizations supporting the coloured peoples of South Africa.

Little need be said about the consequences of an organization being declared

illegal . As one would expect from the viciousness of the Act, the con-

sequences are that any member of such an organization can be hounded from

all public office. There is no time limit to the ban; it embraces all

offices -which may be specified in the liinister's notice.

The Act,of course, is not by any means confined to the abolition of

the Communist Party; the powers given to the Governor-General under Section 9

to ban publications of any body alleged to be sympathetic to Communism, —

are capable of very wide interpretation and would apply to papers like

'Tribune' and 'New Statesman and Nation' if the government so desired.

Ihe power to appoint an investigator under Section 7 could be most oppressive

and could be used for a wide variety of organizations, Finally, the

prohibition of gatherings (Section 9) and banning of individuals from

certain areas (Section 10 ) are powers which are highly oppressive and which

can be used to prevent trade union activity in tho mines on the pretext

of socialistic encouragement for the coloured workers to commit lawless

acts, i . e . to strike.

PUBLIC ORDER ACT

the

This is said to be/ equivalent of our Emergency Powers Act and is

analyzed below.

In many respects it goes a good deal further than our Act. Even if

one accepts the need for such an Act, there can be no reason for an Act

so wide in its terms. It is difficult to see what would stand in -the way

of a government which wished to engineer a Fascist ooup .

This Act provides that the Governor-General may declare a state of

emergency by proclamation i f , in his opinion,

(a ) any action or threatened action by any person or body of persons

in the Union or any area within the Union is of such a nature and of such

an extent that the safety of the public or the maintenance of public order

is threatened thereby, or

(b ) circumstances have arisen in the Union or any area within the

Union which seriously threaten tho safety of the public or the maintenance

of public order; and

(c ) the ordinary law of the land is inadequate to enable the. Govern-

ment to ensure the safety of the public or to maintain public order.

A proclamation may remain in force for 12 months and may be replaced

by a new proclamation, at the end of that period.. A proclamation may be

piven retrospective effect to four days before the date on which it is

made, a somewhat extraordinary provision which seems to have been ineluded

in confident expectation of the perpetration of illegalities by the

authorities and by way of protecting them from the consequencos thereof .

Once a state of emergency has been declared, the Governor-General

may make such regulations as appear to him to be necessary or expedient

for providing for the safety of the public and for making adequate pro-

visions for terminating the emergency or for doaling with any circumstances

which in his opinion have arisen or are likely to arise as a result of the

emergency. % e only limitations are that no regulation may impose a penalty

of a fine exceeding £500 or imprisonment exceeding 5 years, or provide for

military conscription, or alter the law in respect of Parliament or

Members of Parliament, or deal with any matter falling under the

Industrial Conciliation Act,1937.

The racial basis of South African society is recognized by the provision

that different regulations may be made for different areas and for

different classes of persons in the Union.

The Ministor of Justice may exercise the powers of-the Governor-

General when, owing to special circumstances, it is in his opinion urgently

necessary to do so, by notice in the Government Gazette, but no such

notice shall remain in force for more than ten days.

This Act has been defended by the South African Government with the

argument that it is modelled on the United Kingdom Emergency Powers Act,1920.

The terms of this latter Act have frequently been criticized by the National

Council for Civil Liberties, but in point of fact the South African Act is

so much more drastic that the claim of the government of that unhappy country

is grotesque, ^he principal differences between the two acts are as

follows

(a ) The conditions under which an emergency may be declared are

defined more widely in South Africa than in the United Kingdom;

(b ) A proclamation remains in force for one month in the United

Kingdom as opposed to 12 months in South Africa;

(c ) There j_s no provision in the United Kingdom act whereby a

proclamation may have retrospective effect;

(d ) The United Kingdom act contains provision for the calling of

Parliament on thae declaration of an Emergency, and regulations endure' for

7 days only unless approved' by resolution of both Houses. There are no

comparable provisjpns in the South African A c t ;

(e ) The power to make regulations is less restricted in South Africa

than in the United Kingdom;

(f ) The maximum penalties which may be prescribed by the regulations

are three months' imprisonment and a fine of £100 in the United Kingdom

compared with £500 and 5 years' imprisonment in South Africa;

(g) The power to make regulations applicable only to a particular area

or a particular class has no counterpart in the United Kingdom;

(h) The United Kingdom Act contains no provision entitling a Minister

to usurp the functions of the Queen-in-Council, as the South African Act

enables the Minister of Justice to do.

CRIMINAL L&W AMENDMENT ACT

The Nationalist Government enacted an Act under this innocent Bounding

name to enable it to repress the non-violent resistance with which its

racial policy was meeting. It is analyzed in detail below.

Its main purpose is to create a new offence: a person who takes

any part whatever in any campaign or organization or aotivity for the

purpose of procuring someone else to commit any criminal offence by way

of protest against any law commit.-? an offence which carries heavy

penalties. Such campaigns, if they are thought to require criminal

sanctions, normally lead to prosecutions for conspiracy in this country.

In South Africa there is now this special offence, which goes further than,

law

the commoxy of fence of conspiracy in that the purpose of furthering a

campaign for altering the law by disobeying it is of the essence of the

offence. In the same spirit the Act provides that any person •'who is

convicted of an offence which is proved to have been committed by way of

protest or in support of any campaign against any law or in support of any

campaign for the repeal or modification of any law may be punished especially

heavily. Thus the motive which is normally regarded as a reason for lenient

treatment in most civilized countries,becomes a ground for heavier

punishment in South .Africa.

The Act was described by the N .C .C .L . ,when it was enacted, as

perhaps the most savage piece of legislation which had ever been perpetrated

and passed in the British Empire. The Council described the Aot as the

c

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reaction of violent men to non-violent activities.

Section 1 imposes new penalties on any person who is convicted of an

offence which is proved to have been committed by way of protest or in

support of any campaign against any law or in support of any campaign

for the repeal or modification of any law or the variation or limitation

of the application or administration.of- any law. These new penalties are

a fine not exceeding £300; imprisonment for a period not exceeding three

•"•ears; and a whipping of not more than ten strokes. Any two of these

penalties may bo imposed in one sentence.

Sections 2 and 3 create new offences carrying even heavier consequen-

ces. Any person who in any manner whatsoever advises, encourages, incites,

commands, aids or procures any other person or persons in general or who

uses any language or does any act or thing calculated to cause any

person or persons in general to commit an offence punishable under

Section 1 of the Act; and any person who solicits, accepts, or receives

from any person or body of persons, whether inside or outside the Union,

or who offers or gives to any person or body of persons any money or other

article for the purpose of

(i ) assisting any campaign (conducted by means of unlawful acts or

omissions or the threat of such acts or omissions or by means which

include or necessitate such acts or omissions or such threats ) against

any law or against tho application or administration of any law, or

(ii ) enabling or assisting any person to commit any offence punishable

under Seotion 1, is liable to a fine not exceeding £500 or to imprisonment

for a period not exceeding 5 years or to a -whipping not exceeding 10 strokes

or to any two of those penalties. On a second conviction a court is

not entitled to impose a fine without either imprisonment or a whipping :

as well .

Section 4 shifts the onus of proof to the accused,if two or more

other persons are charged with committing a similar offence,punishable

under Seotion 1 at approximately the same time and place,and Section 5

provides that all such porsons may be tried together however numerous

they are. Section 6 enables fines to be recovered by tho seizure of

property. Section 7 confers jurisdiction to try offences undor tho Act

on magistrates, but they must not pass sentence exceeding 3 years imprison-

roent or a fine of £300, no such limitations being placed on their

flagellationary powers; and Section 8 makes provision for the deportation

of offenders •who aro not South African citizens by birth or descent.

RIOTOUS ASSEMBLIES etc ACT

This Act has not previously been considered by the Council, and it

constitutes the most blatant attack yet on civil liberty. Previous Acts

have been justifiod by some sort of excuse however bad . This Act seems

quite incredible in a government -which gives the appearance of being firmly

seated in power.

Magistrates aro given power to prohibit a meeting if it appears that

the public peace -would bo seriously endangered. Thus -what is regarded in

this country as an Ontirely exceptional power, only to be used in the

rarest of cases, finds statutory expression in South Africa. The Minister

of Justice is given power to prohibit a meeting where in his opinion

there is reason to apprehend that feelings of hostility between Europeans

and othero will be engendered. If ho thinks that a particular speaker

will stir up hostility, ho may prohibit him from attending any public

gathering in any public place within a certain area for a specified

period. A public gathering consists of 12 or more persons having a

common purpose (Section 2 ) .

The Governor-General may prohibit any publication which in his opinion

is calculated to engender feelings of hostility between Europeans and non-

Europeans. There is a right of appeal to the courts against such

prohibition (s. 3 ) .

If the Minister is satisfied that any person is , in any area, promoting

feeling; of hostility between European and non-European,he may give him

not less than 7 days' notice to leave that area for a specified time ( S . 3 ) .

There are the usual provisions as to the enforcement of these

powers, especially as to the dispersal of prohibited meetings. Section S

specifically provides that firearms must not be used until lone of the

crowd has fired first or shown a manifest intention of killing or

seriously injuring any person or damaging property. One can expect

prohibited meetings to be fairly bloody!

The Act then goes on to restrict very seriouslv the right of peaceful

picketing. It becomes an offence under S.10 to picket a place of work

or a worker's home. Section 10 appears to make picketing such as normally

takes plac e in a strike in the United Kingdom altogether unlavjful. S . l l

makes it an offence to be rude to a worker in a public place in order to

persuade him to .join the Union. S.12 goes still further in imposing good

manners upon the working class. It becomes an offence to jeer or jibe to

anyone about any person or his rolatives because he has continued at work

during a strike.

Section 14 prohibits breach of contract likely to deprive the public

water or

of essential services in the light, power orf sanitary or transportation

services. It then goes on to make any breach of any contract an offence,

•where the worker knows or has reasonable cause to believe that the

probable consequences will be to endanger human life or to cause serious

bodily injury or serious injury to health or to expose valuable property

to destruction or serious injury.

S.17 provides that the offence of incitement to public violence is

committed vihere the natural and probable consequences of the act or

words complained of aro that someone will commit public violence.

S.18 provides that an attempt to commit any statutory offence is

itself an offence. It goes on to provide that conspiracy to procure

the commission of any offence or incitement to commit any offence, shall

itself be an offence.

Hien a meeting has boon prohibited, or a person has been prohibited

from speaking or being within a certain area, or a publication has been

prohibited, the matter must be reported to Parliament within 14 days,

or within 14 days of its next session (Section 19 ).

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SOUTH AFRICAN "TREASON" TRIALS

L e g i s 1 a t i o n

APPENDIX on THE LAW RELATING to TREASON and SEDITION

The offences of treason and sedition

have not so far been dealt with by statute in South

Africa.

South African law treats "high treason",

"sedition" and "public violence" as three species of

one general crime (crimen laesae majestatis ) and there

is in consequenoe no clearly established line between

treason and sedition as is found in English law.

The following notes have been prepared

by a lawyer experienced in Roman-Dutch I^w.

. , o 0 o . .

HIGH TREASON, SEDITION and PUBLIC VIOLENCE

High Treason (known by its latin name as perduellio, and its Dutch name

as Hoogverraard) in the law of South Africa, is not in itself a separate,

though in certain of its features it is a distinctive, crime. This is due

to historical reas°ns connected with its derivation from the Roman law. It

is - as is also the crime of sedition to which it is closely related, as well

as the crime of publicviolence- a species of the crimen laesae majestatis

which embraces in general all crimes against the safety or welfare of the

State, or the dignity of its sovereign. Although frequently called 'High

Treason', the epithet High^as has been pointed out by Mr. William Pittman, a

one-time Judge-President of the Eastern Districts Local Division of the

Supreme Court of South Africa,in his book on Criminal Law) is due to English

influence, but is entirely otiose so far as treason in South African law is

concerned.

Treason undoubtedly occupies the highest position as the crimen laesae

maiestatis and the fundamental characteristic which distinguishes it from

all the other species of that genus is the "existence of a hostile intent

against the state" (per Innes C . J . in R .v Erasmus (1923.A.D.73 ).

In the case of R v Leibrandt and Ors. 1944 A.D.253 (a case arising out

of the last war in relation to an" external enemy). Watermeyer C . J . at pp .

278, 279 with respect to "hostile intent" and "the State" as well as on other

pertinent matters made the following illuminating statement:—

" . . . Iudorf" ( i . e . Counsel for the Appellant accused) "contended that

crimen laesae majestatis includes high treason, sedition and public

violence, that acts which disturb the tranquillity of the State only

amount to high treason if they are directed against the independence or

safety of the State; if they are merely directed against the authority

of the State they may be sedition or public violence but they are not

high treas on. Putting the same argument in another way he contended that

if the acts complained of are directed against the Government of the day

they may be sedition or public violence but do not amount to treason

unless such acts are intended to assist an external enemy. He agreed

that such acts, if done with hostile intent,would amount to high treason

but contended that the word 'hostile' must be understood in the sense

(i shall make uso of the Afrikaans word used by Mr. Ludorf in argument )

"Vijandelik" * ) and not "vijandig" and that the hostile state of mind

must be directed against the Stato as a whole "intending to treat it as

an enemy" (quoting the words of Innes C . J . , i n the case of Rex v Viljoen,

1923 A .D .90 at p .94 ) and not merely against the exeoutive Government.

VIJANDELIK in English means:enemy, hostile (forces ); hostile behaviour.

V l JANDIG in English means: inimically, in a hostile way.

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Now I find some difficulty in appreciating exactly what- the

distinction is bet-rsen 'vijandig' and 'vijandelik' and how

the one state of mind becomes converted into the other.

•Whatever the re?l meaning of Mr. Ludorf's contention may be,

it seems to me that the questions raised by him are all

disposed of by the de cisiohs of this Court, in the cases of

Rex v Erasmus, supra; Rex v Viljoen, (supra) and Rex v

Christian"(7924 A.D. 10l7]

In Erasmus's case it Wqs contended th<=>t unless there existed

a definite intention to overthrow the Government by changing

its personnel or altering the constitution, there could be no

high treason but at most sedition, but this argument was

definitely rejected by the Court and in the subsequent case of

Rex v Viljoen it was laid down that a 'hostile intent against

the State is the ha11-ma rk of treason which distinguishes it

from sedition and public violence. The State qg^inst which

the hostile intent must exist , i s , of course, the people of

the Union of South Africa organised as a State of whioh the

Monarch, under the South Africa Act, is the head. The

various powers of the people so organised ( e . g . , legislative,

executive and judicial) are exercised on behalf of the St^te

by the persons entrusted by the State under its constitutional

laws with those functions.

-•J -

Under the Status Act, 69 of 1934 , the Executive Government of

the Union is vested in the Mon°rch acting on the advice of his

Ministers of St?te for the Union and may be administered by the

Governor-General as his representative. Consequently, acts

a-pparently directed ag-iinst the Executive Government may very

well be acts done with hostile intent against the Stgte , and,

as was pointed out in Erasmus's case such intent need not go

the length of an intention entirely to overthroxv the

Government, it being sufficient i f there 'exists an intention

to coerce the governing authority, and i n this connection it is

worth while to draw the attention, as was done, in Erasmus's

case,to the remarks of Boehmer referred to by Innes C .J . in

the folloving termsj-

'Deeds, he thinks, speak for themselves and it will

not avail an accused person who has set on foot a

movement which necessarily tends to the subversion

of the st«te , to set up the defence th^t he did

not contemplate its overthrow; such acts he says

amount to perdue 11 io because they are pregnant

with danger and cannot be undertaken without the

idea of imperilling the State, whatever intention

the accused may profess'.

Those decisions -are binding on us unless it can be shown that

they are palpably wrong

Mr. Ludorf boldly asked us to say that they .are wrong, but he

has not produced any argument or authority which shows th->t

they are xvrong , consequently the law must be. accented as laid

down in those cases. • Now the judgment of the Special Court

shows that it accepted the law 1-iid down in the case of Rex

v Erasmus and then prooeeded to consider whether the

inference of hostile intent should be drawn.

Schreiner J . (now J . A . ) on this subject made the following

remarks, with which I agree:

•In peace time it may be difficult to ascertain

whether any particular form of civil disturbance,

or -anti-Governmental activity evidences hostile

intent , for there is no general enemy xvhose

purpose it is to o-erthrow or subdue the

Government and the requisite element of force must

c ome fr om wi thin'

- 15 -

For the purposes of the law of treason the Government is

wholly identified with the St^te . . . Treason may bo

committed- and the' hostile intent be entertained with a

view to achieving some further purpose. The ultimate

goal may be the achievement of some social or economical

advantage for a portion or even for the whole of the

community. It may be the advancement of some political

or ideological theory, or it may be the fulfilitont of

personal ambition or the wreaking of personal hatred.

None of these ultimate motives is relevant to the enquiry

whether treason has been committed or not. Tftiatever the

factors are that induce a citizen to entertain an

intention to holp the enemy or to weaken the effort against

the one.my, i f he acts in order to carry out that intention

he commits an act of treason".

Upon the very important point as regards the position internally and

as regards the extent to which the hostile mind must be directed in its

intention Kotze J .A . in the case of Rex v Erasmus (Supra) a case which

arose out of the disturbances which took place on the TrJitwatersrand in

1922 at p.80 says:-

"It is clear from an examination of the authorities thgt

armed attacks upon the State or Government, perpetrated

with a hostile mind or intent, constitute treason.

But what is to be understood by such an intent? Now,

it is plain that the words 'hostile mind' are not merely

confined to acts which are connocted with an enemy of

the State from without, Matth .">us(l.C.) for instance

points out that it makes no difference whether one stirs

up hostility from without or within the State; and the

decided cases in our South African Courts likewise

demonstrate this. Tfe have for instance, the case of

Reg v Celliers (l K Rep. 237) that of the State v .

Mampoer in the High Court of the South African Republic

(Transvaal) in 1883 and of Re:: v do let (l915 0 . P . D . 1 5 7 ) .

Nor is it necessary that the hostile mind of those who

commit an act of treason, should contemplate the total

subversion or overthrow of the St- t̂e or Government

Boehmer likewise points out tlvt acts may be committed

although they do not show an intention to subvert the

state as such, yet amount to treason, as xvhere a person

out of malice or hostility to the ruler, or to some act

of mal-administr°tion attempts to oppose and resist his

authority whether any acts, laid to the charge of

an accused person amount to treason, will depend upon

the circumstances of each case. The ordinary rule,

that a man's intention or st^te of mind is to be

judged by reference to his acts and conduct applies

High treason it will thus be seen, is one species of laesa majestas, of

the crimen laesae majestatis, namely that accompanied by what is

called a hostile intent against the governing authority - an intent to

treat that authority as an enemy which however need not be an intent

actually to subvert the governing authority.

Jn Sedition, one of the other species known by its Dutch name as

Oproer "the inroad upon the governing authority", (as it is put by

dr. PLttman op. c it . 190) "unaccompanied by any hostile intent or

intont to treat it as an enemy, consists in taking part in a

gathering in its defiance and for an unlawful purpose".

771-fch regard to the difficulty,however, of defining sedition as well

as in its relation to treason and the crime of public violence,

Innes C .J . in the case of Rex v Viljoen (supra) at pp. 92,93 says:-

" the rule laid down by the Special Court in

Erasmus's case and applied in the present case also was thus

expressed:

'Hiere on illegal act adversely affects the

safety of the State, directly or indirectly,

or is directed against its authority, there

must be the presence of hostile intent

against the State when the act was committed,

to bring it within the category of such

. ' crimes as troason and sedition and it must

be a question of degree of hostility, as

evidenced'by the circumstances of each

particular case, whether the act is one of

treason or sedition1o

Wow the difficulty of defining sedition is so great, that the task

must inevitably bo approached with diffidence. On the one hand

the line which, separates it from treason is often faint, on the

other hand sedition and public violence frequently overlap. At

the same time tho tost suggested by the Special Court, is not

borne out by the authorities * Reference to them Will show that

a hostile intent against the State is not a characteristic common

to the two crimes» It is the h^ll-mark of treason alone; and

its presence or absence may often be decisive as to the nature of

a charge - may determine whether the act complained of is to remain

in the lox^er category or pass into the higher. One's idea of

sedition is apt to be unduly coloured by association with the word

seditious as used in English law. Words or acts spoken or done

with a seditious intention were by Transvaal Ordinance No. 38 of

1902 made specially punishable. Seditious intention was defined

in the English sense, whioh generally speaking implies a desire to

bring the Government or the Sovereign into hatred or contempt, or

to excite disaffection among the people» That enactment has now

been repealed; but its provisions afford an instance of

terminology which is in common use, but which has none but. the

remotest bearing upon the nature of sedition is a distinct crime

in our lfiw «< ' . V . . . . . . . . .

I do not propose to go further into the authorities because they

were carefully considered in Rex v Endemann (l915 T .P .D . at 149)

and I agree With the conclusions reached by De Villiers J . P . , in

that case, that to constitute the crime of sedition there must be

a gathering in defiance of the authorities and for an unlawful

purpose. Those who incite and lead such gatherings and thoso

who take part in them arc both punishable but the former more

seriously than the lattero Sedition is a species of the crimen

laesae majestatis, for it is committed in defiance of the

authorities and against the public peace. But it does not imply

the existence of a hostile intent against the government as such.

VJhen that intent exists, the disturbance or rising becomes high

treason; it passes into a more serious category. A sudden

rising or tumult accompanied by no hostile intent against the

Government as such - no intent to treat the latter os an enemy -

would be sedition purely® But i f it could be shown by direct

evidence or otherwise that such a gathering .wgs accompanied by

hostile intent, it would become high treason. Voet . . . remarks

that there may be sedition which has no relation to the State at

all . A native tribal fight may afford an illustration of what

Voet had in mind* But tumults of that nature are more

appropriately treated *s acts of public violence. Indeed, the

wide operations of the latter term and the inclusion of all

risings with hostile intent into the category of high treason

reduces the area 'of sedition for practical purposes to narrow

limits. Enough has been said to show the difficulty i f not the

impossibility of an exact and exhaustive definition of the term. , « . » ' r

Kotze J .A . in his judgment at pn 96 in regard to the presence or

absence of a hostile mind or intent being the clear dividing line

between treason and sedition emphasises the point in these words —

1

- 17 -

"As pointed out in tho case of Rex v Erasmus sedition like

treason is generally treated is a species of the crimen

laesae majestntis but there is this essential difference

between them* To constitute perduellio or treason, the

conduct or act with which the "accused is charged must be

shown to have been committed with a hostile mind or intent.

A seditious net, therefore, i f committed with such an

intent, constitutes treason, not so however where the

intent is -absent. Tho distinction between treason and

sedition is consequently not a mere technical one, as

stated by the Special Trial Court, in the case of Erasmus

and also by tho Trial Court in the present instance;

but an actual and substantial one. On this point all the

authorities are agreed. It follows th^t, there may be

seditious acts which fall short of treason, and which

although differing in degree from each other yet come under and are included in the crimen laesae majestatis.

No Jurist has given us a precise definition of sedition tt .......

The crime of Public Violence (known by its Dutch name as Geweld) has

already been mentioned, and it has been pointed out how fine the line

is between it and sedition; how difficult it may prove to determine,

whether the encroachment upon the majestas of the governing authority,

requisite for the latter crime, though not for public violence, is or

is not present. ftiblic violence is committed by all such acts as

openly and publicly effect, or are intended to cause, a violent and

forcible disturbance of the public peace and security or a forcible

invasion of the rights of other people. (South African Criminal

Law and Procedure - Gardiner and Lansdown. 4th Ed. Vol . 11 p .892) .

i Thus, i f a number of people gather together and proceed publicly to

commit disturbances of the peace and set at defiance the laws, their

crime m i l fall within one of three classes according to the

« character of the object they have in view; i f the movement bo aimed

at the independence or safety of the State they will be guilty of

high treason; i f , having no such object in view, their action is

nevertheless of a political character directed against the authority

of the State, they will be guilty of crimen laesae majestatis and may

be charged with that crime co nomine or with sedition; but i f , while

flouting the powers of the State officials whose duty it is to

preserve lav/ and order, the movement is not directed against tho

State's authority, the crime committed will be th^t of public

violence the motive of which is usually, though not invariably, the

desire of a section of tho populace to inflict injury upon another

section. The execution or attempted execution of such a design

involves the gathering together of a number of people, resistance to

the authority of th(? police , and the perpetration publicly and

openly of acts of force and violence upon the persons or property of

those whom it is sought to injure. (Gardiner and Lansdown ibid ,

pp 892, 893) .

The following further points in connection with treason, sedition

and public violence should be noticed. On a trial upon a charge of

high treason an accused person can be convicted of sedition where the

evidence proves conduct amounting to sedition and at the same time

fails to prove tho hostile intent which is an essential ingredient,

as fo^s been above shown, of high treason.

Ttie trial upon a charge of high troason, sedition or public violence

or of an attempted conspiracy or incitement to commit such an offence can

instead of taking pl^ce before a jury take place before a special

criminal court. This can be done where the ittorney-peneral is of

the opinion that i f the accused were tried by a jury, the ends of

justice are likely to be defeated, and has stated such opinion in

j writing to the Minister and the facts upon which it is based and

specifics the offence for which he proposes to indict the accused.

The Governor-General may thereupon constitute such special court.

This form of trial was given statutory effect under the Criminal

Procedure and Evidence Act (No.31 of 1917 ) which Act has been replaced

by a Consolidating Act passed in 1955. The Special Court is constituted

of at- least two, but not more than three, judges of the Supreme Court

and the decision of the Court must be unanimous.

As will be seen from the judgments quoted before, this form of trial

is the normal one in cases of high treason and sedition involving, as

is necessarily always the case, politics in some form or another with

the certain concommittant of prejudice and feeling being aroused.

. . .ooOoo • .

Collection: 1956 Treason Trial Collection number: AD1812

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