. ' \ !.

HI 1'[ll'~ SUHlEWiE coun'r OF ;-j()U~~lI AFHICA

~T'r'~CJ AI, COUWI' SI':e1.'ING 1< .. 11' Fl~: .. r11011 1") A HIe ----

(1) \'/ILSCH V!ELILE CHIE? 'EfAIJA

(2) DA.H2:EL SECHABA SEDLulfE I,10NTSITSI

(3) SE1'H SIU'.fDILE II"lAZIBUKO

(/~) r.l:\FISOH MOROBE

(5) JElt'FE~SON KI-W'rSO v;;~rrS2: 1EEGANE

(6) SUSAN SIBONGILE rnHl~;:EU

(7) mmEST EDWIN THABO NDABENI

(8) KEi'UIEDY KGOTSIETSILE MOGAMI

( 9) nEG nU~LD TEHOBO MNGOWEZULU

(10) ]',1ICHAEL SELLO KHIBA

(11) GEORtiE NKOSINATI YANI TV/ALi\.

JUDGfr1ENT

V/..T:l DYIC, J?

HVD~[ •

The m:l:L n charge against the eleven accused. is one

of Sedition with an alternative charge of Conspiracy to

COf!l!flit Sedition , in contravention of section 18(2)(a) of

Act 17 of 1956 ; Alternatively: Incitement to commit

Sedition , in contravention of section 18(2)(b) of Act 17

of 1956 and a further Alternative Char&e, namely

of section 2(1 )(a; :jf Act 83 of 19(j'70

contravcntion

l Far tj ci lJat 1.on in TeTroristic Acti vi. tics , in

1'i < "

-2-

The various charges arc more fully set out as

follows; n preamble to the main and alternative counts

which reads as follows :

"Whereas: (1) the South African Students Movement

(hereinafter referred to as SASM) strived to create

political, social and/or cultural awareness and solidarity

amongst Black schoolgoing students with the ultimate object

of contributing towards the liberation of Blacks in the

Republic of SOUGh Africa (RSA); and

(2) the policy making body of SASM,the General Students

Council, at a confer.ance held over the period 28 to 30 May

1976, and at Roodepoort, in the district of Roodepoort,

also adopted as policy the total rejection of the whole

system of education for Blacks at school and specifically

the use of Afrikaans as medium of instruction and resolved

"to support students who identified themselves with the

rejection of Afrikaans as medium of instruction; and

(3) on 13 June 1976, and in Soweto in pursuance of the

aforegoing cause and policy, SASM held a general meeting

at which a Sow-eto Regional Branch was founded and an

executive elected; and

(4) the said general meeting also elected an "Action

Committee" to co-ordinate arrangements for and/or to

organise gatherings and/or demonstrations in support of

SASr.I's aforesaid cause and policy in Soweto; and/or

(5) in pursuance of the resolutions adopted by SASM

during the period 28-30 may 1976, and/or at the general

-3-

meeti,ng of SASTiI in Sovveto on 13 June 1976, gatherings

and/or demonstrations were held 8..l1.d/or arranged on behalf

of SASM by the "Action Committee" and/or the SSRC in

Soweto on 16 June 1976 and thereafter, as is more fully

set out in Schedule 'F' hereto, which gatherings and/or

demonstrations led to :

(a) confrontation with the South African Police

and/or other officials who are by law charged

with the maintenance of law and order or any

part thereof in Soweto; and

(b) the commission of various offences including

IDtITder, arson, public violence, destruction

or damaging of Government ancl local au thori ty

buildings and other property, and

(c) the disturbance of the public peace and

tranquility; and/or

(6) in pursuance of the one or the other, of the

resolutions referred to in paragraph (5), SASM through

its organs and/or its members incited, instigated,

commanded, aided, encouraged or procured scholars an~or

other persons un1mown to the State to take part in the

gatherings set out in Schedule 'F' hereto

(7) for the maintenance of the public peace, the

Minister of Justice by virtue of the provisions of

section 2(3)(a) of the Riotous Assemblies Act, Act No 17

of 1956, as amended, from time to time by Notice in the

Government Gazette - which Notices are more fully listed

in Schedule 'A ' hereto - prohibited gatherings not com­

plying with the cor.ditions of the aforesaid Notice; and/or

-4-

(8) in arranging, causing or participating in the

aforesaid gatherings/demonstrations, Sl\Sm and/or the

"Action Cormnittee" and/or the SSRC

(a) intended to defy or subvert the authority

of the State; and/or

(b) foresaw that the authority of the State

would be assailed by their conduct as afore-

said, but nevertheless, reckless as to the

said consequence thereof, carried on therewith,

the said conduct also being in defiance or sub-

vertion of :

(i) the Governmental prohibition on gatherings

referred to in paragraph (7) sunra; and/or

(ii) the authority of the Department of Bantu

Education and/or its organs as provided for

in the Bantu Education Act, Act 47 of 1953 r and/or

(iii) the authority of the West Rand Bantu

Administration Board as provided for in the

Bantu Affairs Administration Act, Act 45 of

1971; and/or

(iv) the authority of Urban Bantu Councils as

provided for in the Urban Bantu Councils Act,

Act 79 of 1961 and/or the authority of the

Community Councils as provided for in the

t t

L

r t I T.

l ~

-5-

Community Councils Act, Act 125 of 1977;

and/or

(v) the authority of the South African Police

as provided for in the Police Act, Act 7

of 1958; an~or

(vi) the provisions of section 10 of the Riotous

Assemblies Act, Act 17 of 1956; and/or

(vii) the duty of the State to maintain public

peace and tranquility; an~or

(Viii) statutory provisions relating to security

legislation and detentions and/or

(9) the aforementioned "Action Committee" during

approximately- July/August 1976, became lmovm as the

Soweto Students Representative Councilor also as the

Students Representative Council (and hereinafter referred

to as the SSRC); and/or

(10) the "Action Committee" and/or the SSRC in furthe..­

rance of the aforesaid cause, pOlicy and unlav/ful int en­

tion of SASM, prepared and published one or more of the

pamphlets, press statements or Bulletins as set out in

Schedule 'B' hereto; and/or

(11) - the said accus ed at relevant times were office

bearers, and/or officers and/or members and/or supporters

of SAShl and/or the "Action Committee" an~or the SSRC.

J ' ,

-6-

lfow therefore during the period May 1976, to October

1977, and at or near Roodepoort, in the district of Roode­

poort, and/or Soweto, in the district of Joharmesburg ,

and/or places urucnown to the Stat e, the accused in defia.l'1c('

or subversion of the authority of the State, wrongfully,

unlawfully and seditiously ,

1. having severally or ' jointly adopted or

associated themselves with the aforesaid

object, cause policy and intention of;

1 . 1 SASM

and/or

1 .2 the II Acti on Commi tt ee"

and/or

1.3 the SSRC

2. and with intention of giving effect thereto

and thus having associated ,;vi th one another

through;

2.1 SASlYl

arid/or

2.2 the "Action Committee"

and/or

203 the SSRC

with the intention as set out in paragraph (8 )

of the Preamble

3. in this manner conspired with

3.1 their co-accused

and/or

3.2 SASM

and/or

-7-

3.3 the "Action Cornmi tt eel!

and/or

3.4 the SSRC

and/or

3.5 one or more of the persons listed in

Schedule ' C' hereto

and/or

3.6 one or more of the persons elected or

appointed to represent the various

schools in Soweto on the SSRC as

listed in Schedule 'D' hereto

and/or

3.7 diverse persons unkno~m to the State

and/or

4. in this manner incited, instigated, aided or

procured

4.1 scholars from one or more of the schools

listed in Schedule 'E' hereto

and/or

4.2 diverse persons unknmvn to the State to

gather and/or to take part in gatherings

and/or to continue such gatherings - which

from 18 June 1976 were also in contravention

of one or other of the Government Notices se

out in Schedule 'A' hereto- with intent to

defy or subvert the authority of the State,

5. and in pursuance of the said seditious conspiracy

and/or incitement, instigation, aid or procure­

ment, by the accused, a number of persons and/or

~.' I

-8-

thc accus ed unlmvfully gathered on one or more

of the times and places set out in Schedule ' Ft

hereto for the aforesaid purpose of subverting

or defying the authorities and resorted to

conduct directed against the authority of the

State , whereby the power of the established

authority and of officials of the State was

assailed and/or the public peace or order was

imperilled, which conduct also was in defiance of

5.1 the Governmental prohibition on

gatherings referred to in paragraph 7

supra and/or

5.2 the authority of the Department of Bantu

Education and/or its organs as provided

for in the Bantu Education Act, Act 47 of

1953

and/or

5.3 the authority of the West Rand Bantu

Administration Board as provided for in

the Bantu Affairs Administration Act,

Act 45 of 1971

and/or

504 the authority of the Urban Bantu Councils

as provided for in the Urban Bantu Councils

Act, Act 79 of 1961 and/or the authority

of the Community Councils Act, Act 125 of

1977

and/or

5.5 the authority of the South African Police

-9-

as provided for in the Police Act,Act 7

of 1958

and/or

5. 6 the provisions of section 10 of the

Riotous Assemblies Act, Act 17 of 1956

and/or

5.7 the duty of the State to maintain public

peace and tranquility

and/or

5.8 statutory provisions relating to sec1.:trity

legislation and detentions;

And thus the accused, by conspiring and/or inciting,

instie;ating, procuring or aiding ' as aforesaid and/or

by participating or otherwise attending the gatherings

as aforesaid are guilty of the crime of Sedition."

The First Alternative Counts are as follows :

(1) Conspiracy to commit Sedition in contravention

of Section 18(2)(a) of Act 17 of 1956.

In that at the timeq and places and in the

manner averred in the Main Count,the accused wrong­

fully and unlawfully conspired with

(a) their co-accused

and/or

(b) one or more of the persons mentioned in

Schedule 'C' hereto

and/or

(c) one or more of the persons mentioned in

~" /

, ",',,;u ' , ~p< <:1, ',' :! ,,' ' ... ~I'l~' '. J'If ,

-10-

Schedule 'D' hereto

and/or

(d) one or more of the students of one or

more of the schools listed in Schedule

'E' hereto

and/or

(e) SAS!'iI and/or the "Action Cornmittee" and/or

the SSRC

and/or

(f) diverse persons unknovm to the Sta.te

to aid or procure the commission of or

to commit the crime of Sedition.

(2) Incit ement to commit Sedition in contravention

of section 18(2)(b) of Act 17 of 1956.

In that at the times and places and in the

manner averred in the Main Count,the accused diu

~ITongfully and unlawfully incite, instigate~ command,

aid, or procure

(a) their co-accused

and/or

(b) one or more of the persons mentioned in

Schedule 'C' hereto

and/or

(c) one or more of the persons mentioned in

Schedule 'Dt hereto

and/or

(d) one or more of the students of one or

more of the schools listed in Schedule 'E' hereto

.(. (

-11-

and/or

(e) the "Action Committee" and/or SASM

and/or the SSRC

and/or

(f) diverse persons unlmO'ivn to the State,

to commit the crime of Seditiono

Tho Second Alternative Count is Participation in

Terroristic Activities in contravention of section 2( 1 )(a)

of Act 83 of 1967.

In that at the times and places set out in respect

of the accused , in ANNEXURES 1 - 11 hereto., the accused,

acting alone, jointly and/or severally and with intent

to endanger the maintenance of lavv and order in the

Republic of South Africa , or any portion thereof, wrong-

fully and unlawfully

(a) committed or attempted to commit

and/or

(b) conspired with one or more of their co­

accused and/or SASM and/or the "Action

Committee" and/or the SSRC and/or one or

more of the persons listed in Schedule lCt

hereto and/or persons unknown to the State,

to aid or procure the commission of or to

commit

and/or

(c) incited, instigated, commanded, aided,

advised, encouraged or procured one or more

of the persons listed in Schedule tC' hereto

·f I I

I

-12-

and/or the persons elected or appointed to

represent the various schools in Soweto on

the SSRC as listed in Schedule 'D' hereto

and/or one or more of the scholars from

one or more of the schools mentioned in

Schedule 'E' hereto to aid or procure .the

commission of one or more of the acts set

out in the respective Anncxures hereto o

In Volume 2 South African Criminal Law and Procedure,

by Hunt 'sedition' is defined as follows (p.45):

" 'Sedition' consists in unlawfully gathering,

together with a number of people, with the

int ention of impairing the majestas of the

State by defying or subverting the authority

of the Government, but without the intention

of overthrowing or coercing that Government. "

A study of the origin of the crime of sedition

amply justifies the warning by INNES, CJ in t;"e case of

R v Viljoen, 1923 AD 90 at p.92 against the difficulty

of defining sedition that:

It The task must ineVitably be approached with

diffidence. "

Our common lavi on the subj ect of sedition is to be

found in the Digest 48,4, 11 v/hich is largely deri ,red

from the Lex Julia Majestatis and the Lex Julia de vi

'publicae (see Digest 48.8 and Code 9.12)0

-13-

Matthaeus in De Criminibus (48.2.2.) treats seditio

under the heading of Crimen Laesae Majestatis. He adopts

the definition given in the Digest and says:

II Majestatis autem crimen est, quod adversus

Populum Romanum, vel adversus seeuritatem

e jus cOffilni tti tur, "

He applies this definition to the more serious kind of

laesae majcvtatis called pcrduellio, (treason) but in the

same instance also points out that there are other less

serious kinds of laesae majestatis v/hich mainly concerns

the dignity or the authority of the State and quotes variou~

examples which he takes from the Code, some of which have

as their main object the destruction of the Prince or the

Senators or a revolution (mutationem reipublicae) and some)

the destruction of private individuals, classifying the

instigators of the former as traitors (perduelles) and thost

of the latter to fall under the Lex Julia de vi.

Voet in his Commentarius ad Pandectas 48.602 relies ) -

on the division adopted by Gothofredus in his Treatise of

the Corpus Iuris Civilis as

(1) laesae majestatis in specie or perduellio

(2) laesae venerationis and

(3) autoritatis seu potestatis publicae turbationis.

In 48.6.3 Voet follows the same distinction between

the kinds of seditio as does Matthaeus and he then refers

to his less lcnown work De Jur e 11ilitari where he . deals with

tJ;1e matter more fully.

-1~-

·r J

I V:::.rio'lls 0 the!' common l:J..w 'v'/r:i tor!") a1;:0 de:),l V:ith the

,'!'rler the hendir..g ' !'.~isdaden' 1.3.1, Jilee Vost , follo'NS

Yirtu8.J.ly the Cii v:i.:::ion of Go-Lhofretlns cl.nd cietl.ls 'liit!~ the

(1) Eoogvprrm',d b;y \"J1Lich he lill::i:.'..Y.1.S j'lerriucll'Lo;

(? )

Oppermacht and

(3) Schennis vpn het B1bliCQ ~~zach v~m dezelve

O"f)perm3.cht.

In ' "hifl discuGsion or ~ 'j('rtlpel}; 0 he sound . .J a f2.miliar

note of ';'!<:irning in the fol l ()wil'1g ';lorus:

II H(~t 7,ondt~ een v/erk van cen

o..r11e'irl zyn hier te spY'el-:-en V~!D " •. lJ.e U.s vr;rsr::hei~L~

\'IY7,en, or 't/elke rli t Hoogv~rraad l;:~~n gcplecgt

vlOrc1en . V/y zul1en dcrhalven )Ik1o.r a11cen geV'/agen

van enige van de voornaams tc v:clke vry in de

~ettcn vinden opgcnnemt. " Tk giv8~-: us an in:,:.;tance of perclnel1j 0, (, orro-=r' ), and

iJ.J.::o d'~'~I:NS the distinctiol'"l.. bet'Neen the clas'": of '0.:;roe1"

,,·11;C'C1 [" '1]<:' "nder' r>I~~T"l'''Y' l',o("""e T,r,;est·'t·iro '''hich he •• . - . C.~ __ ~J \'\'_4 J... ~ . L . . :. ..... .L .......... . ... !.... ~ " ••.• :., _. 1 ,-t ... ~ ..

(I oscri bes 8.8 ' J11.:~j cstej tschenni~' ::'.nd th~.~t '.'/hich fc.11s

t'YJc j'!1stizator~:i nl~ ] e<.!.(ler::i dmi thcj "c fn] J o't/21'S.

~."~ Y"

- 15-

rl::i.:Oi.tscn 2.1~00 c1:::~t d £.'x·zelfrl f~ ge:dood of vermoorc1

on z.jjn ool-: or 1:0.zeJ fdc ',<djze t8

st!'affon .

ver~c.dcril'lgen onder h et vo] k danl'ochtcn enele

:lot ~81fde tegon. bare OVt~rj giLeiu. o~ hitson , 'lIcrden

'18. de CJ.uali toi t VUll h::-:.re l ,ersonel". 811 118- de groot -

"

,T . van lion I,il1c1en in his Roc1ltsgelecrd, Practicaal

the hc~-:.clil~.G of " OpenbB."'.r goweJ.d ll and c10scri bes it as r

foJ.l()'!v~: :

" Het E1 anv'le nding van midcl,eJ en v~~n ge'f·i:=lrl en dVvang ,

door weJ 1cc do 0l,onbare rust en orde in gevaar ".

go bragt , of het gez2.g dergef;telr1e J.lagten en

AF1l) L en2.aren 2.E'.nger,.md ~·/ord .. ..

In the C9..He of H v . Rndemann 1915 TPD 142 on ~ •. 147

II

sec.li tion as C'. Sl1oc;,es of vit1lenco , but omits to

:-j'L8.te thc~t it may uls<? f2.1] n~c:i.er the crimen laesae

wajestatis as ~~tth~eus points out . He defines the

cr:iJtlO of ~"'c(iition as the com~:!i ttini"; of acts ()f

'Ilia] ence e:l.ncl. forcn , b~r \"/hj ch tho !Jublic oTtJ:~r ·'I.nd

trc.mC':uj,l:i..ty are cndanc(;reG., ano. the authority of

the T·ub] ic offiC'!ers and. }(l~~r.;if}tr8.tes is att:;".cV:e<l ~nd

seui tio "\ j~; ~, :··ob_'.bly c':.rrcct ,

"t '

"

-16-

since to constitute the crime of sedition it is

not necessary that acts of violence should have

been actually committed. (Pothier, ad Pand,

48,4,1 sec. 7). "

CURLEiVIS, J in dealing with the various authorities

on p.151 came to the following conclusion:

The general trend of these authorities is,

it appc2rs to me, to regard 'oproer' as a

substantive crime which may fall under the

generic term laesae majestatis, or under that

of publielc geweld, and as implying in the former

casc either a gathering or concourse of people

(not necessarily ten or fifteen) (the figure

mentioned by Matthaeus in De Crimini b1).s) , or

some individuals acting in concert, and h~ving

for its, or their, object a tumult or insurrec-

tion against the Sovereign or his Governm.ent. "

From the aforegoing, it would appear that, relying

on the old authorities, particular emphasis is placed by

CDRLE'NIS, J on the El ement of violence in the s ens e of

'oproer' •

A close study of the common law writers show that

they did not draw a well-defined distinction between treaso.

and sedition on the one hand and sedition and public vio­

lence on the other except in the negative sense that the

specific intention, that is, hostile intent, required for

treason was not a requirement of either sedition or public

violence. It is apparent, however, that the public peace

~ . I

-,

-17-

1

must be adversely affected by the scditious acts and that

sedition was looked upon by the common .law v\'ri ters as the

most serious form of public violence.

In R v. Viljoen and Others, 1923 AD 90 at p.23

INNES, CJ in discussing the crime of sedition and in

dealing with the historical development of that crime

re-ferred to the definition of Brunnem::m (Code 9.30) who

defines Scdi tion as 'the Y/rongful stirrip.g-up of the

people to raise a tumult against the public peace.'

The learned Chief Justice approves the definition given

in Endernann's case by DE VILLIERS, JP namely that 'to

constitute the crime of Sedition there must be a gathering

in defiance of the authorities for an unlawful purpose.'

He then concludes that:

" Sedition is a specis 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 existenc~ of a hostile intent against the

Government as such. When that intent exists, ·the

disturbance or the rising becomes high treason, it

passes into a more serious category. "

And on p.91 he says as follows:

" A local rising for the rescue of prisoners, for

ip.stance, would prima facie be Sedition only;

but it might be part of a wider and more general

attack against the Li-overnment and be undertaken

with hostile intent against the State. In that

case it 'llould amount to high treason . "

, " I,

I

-18-

I

From a reading of the 8.\.~thor:i tics the following

cJ Pl-:1C'nLs to TT',y mind eOr'stitute the cr:i.me: of ~~ ccli t:i Or!.

i'\. r'l't;'l1PY'': YIP' \r,'}~; ell l' c· 11nl''''' 'f'\11 'ni tl~ l' ~,1tcnt (no' 4-t,) .... · .. _~L L' '_ .. ' ,::> 8 Li..'_J' , \.__ _ lJ

As f2.r as thc element of

' u<I:..·.' .. 'fvll'10S:, ' is concerned; tho usual princjpJe~ apply ,

n~:.r!:c1y, thc.t the perforw,anc c or n0l1-}:'{:!rfOrm8.nc e of :1.11 act

is lmL",~/ful if it , i~..: contr',try to SOl':lC J.':)gal rrohibition

?nd j S ':"TO'\fl,"Cl by proof of the act (!(l!''!r-Jained of, 11(Ile!".~s ,

o bj CC't jvcJ.y ~-;~ en, some ju~~ tificatio~1 ~r another oxi sts ~

PI'oof of thif~ el8!~1cn.t is uSl~ally com2'ouncl~d vlit}:l tho mens

r0:. .... cf tho acc1..'sen to defy or s'nbvert or a~1cail tho

the elcnen-L of

tho crirfle of f) edition has been cOP ;-ni tted. Al thOl1.C;h :i,t h~f

11

-L llC foY"'pI' C' c,. pi th (~r r, 'T: Lth L""'j ', '" r .. 01' CO .... 'COU·{',... r. - • • , •• '-" \...... -~. 6 -'. ..". u' J _ ...... - • ". t.. . ,t.l. • _ • "' '''';:

-19-

o~ ~eo~~e (not necessarily ten O~ fifteen),

or ~'Oi'lC incii v:illu:).J;:i actinG :Ul co·ncert . II

it if; nnffic:i.ent if an l1.nsrecified number of :peol'le come

tn2;,:;tllcr ,·',':l.th the necessary inteY't, <~.nd th:'.t even t\·:o

~'r1Y\"!hGre, /ll-let.her in a pl'..;:-.lic I'J.~ ... ce or in a :9:civate ::iJ.2 .. ce.

the ~.'.utllOri ty fof the Stc .. t 2.

ford. blc c0nCluct G!.nd violence if) certain) y not an eS:jentia

T'urt of the sClli tioup> g, : :Gl.1.~ringo Whe.t is csse!'ltial is tha

p.63 fo:!.' the contrary !,ro~')()sj.t:i.0n i. e. tl"':'.t act~: of_

violence ;:hOl~ld have been cor~lUittecl, c::.rlY'ot be SU<1"'orted

;.:.::; f:".r :;1.8 the elements of '3edi tj on are carv'!crneo., ~.,'(u:;::ce

'JII.T Je,':?<::' '. - l.J_ .. U 1 tTF sgecifica1.ly founa. th:.l.t lito consti tU'i;e

the cri r,le of f~ecii tion it j.s not reccssary thdt acts of

violence slwuld h[;;',ve been aC~l'.all.y cOIr'J.':\.tted. t1

1 ~()rcov~r, if rcge.I'd j 8 h8.cl to thl~ c:;,u:::.J:i.. ty of the

intention required., n~1mely, to Liefy or subvert Ol~ assail

the authorjty of the State or its officials, therc is no

] ot;ic:".l l'(!ason \'/hy violtmce rnu,;t rJe regn.rQed as a ne..tural

•

.. . ' 'tIo~ .It;" I ",... :,'. ~il~~i" . .... I

-20-

guthering. Examples of non-violent seditious gatherings

come to mind easily, for instance, the burning of pass

books in the early 1950's; workers strike against labour

legislation, coupled ,with the necessary intentiono If '

violence was an essential irigredient of the offence of

Sedition one could well ask what then is the difference

bet\t\leen Sedition and Public Violence.

I have found it necessary to deal \'/i th this aspect

of the offence fully because it was argued by Mro Wentzel,

with which arguments Mr. Ancer associated himself, that

violence or force still constitutes an essential element

of the crime of sedition. He submitted that the

definition of Hunt is a defective one in that it fails to

take account of the fact that the element of violence in

the sense of 'oproer' must be regarued as an essential

characteristic of the crime.

NIr. i,'fentzel found, support for this argument in t.he

passage of van der Linden, to which I have referred above.

However, as VIas pointed out by DE VILLIERS, JP on pag'e 151

of the Enc1emann case, van der Linden only stressed the

'oproer' or 'openbaar geweld' element and omitted to state

that sedition may also fall under the crimen laesae majes­

tatis as Matthaeus pointed out; a species of crime of which

violence does not constitute an element at all",

As far as the element of intent- is concerned, to

succeed, the State will have to prove that the intention

of the accused in organising and/or participating in any

of the unlawful gatherings, Vias to defy or to a:::.8ail the

autnority of the Stateo

-21-

I

In the Shorter Oxford Dictionary 1977, Volume 2,

'authority' is defined as follows:

1. "Power or right to enforce obedience: moral or

legal supremacy, the right to command, or give

an ultimate decisionll

and the word 'defy' is described as meaning:

1. liTo renounce faith, allegiance to declare,

hostilities against"

2. "To challenge to combat"

3. "To challenge to a contest or trial of skill",

4. "To set at defiance, to set at nought, and

5. "To reject, renounce, disdain, revolt at."

The word 'subvert' :is described or defined as meaning:

1 • . ... 2. . -.. 3. "To undermine the character, loyalty or faith of;

corrupt, pervert"

4. . "To disturb (the mind, soul), to overturn, overthrow"

(a condition or order or things, a principle, law

etc) •

As regards the authority (maj estas) of the Sta.te, one must

bear in mind that in our constitutional set-up the

Government's (or State's) authority in South Africa is

exercised through its various organs, to wit, Departments

of State, Provincial Administrations, Local Authorities,

Statutory Bodies, etc~ Assailing the authority of anyone

Of; these organs in effect will therefore be to assail the

authority of the Government/State.

V­I

-22-

In U v . Christi.?.ll , 1 S'2f!. ~'J) 101, 'tjES~~ETJS, JA held

at 1' . '13 5 tho..t :

" Prirna f;'.ci.c· a Sts.tc '.'!hich 112.8 the fv.1J c.nd

CY~Chl.sive right to r.-'ake l:J.ws fo:-' its subjects

:l.nd inhabi tD.nts ;:. ... r..d to c:1forcc thcse

~osscsscs internal ~ajestas in relction to its

f:u.1'2ccts ~1nd inl'l.8.bit2.nts . It :i.s by virtue of

L~v/s :"'.nd respect for its political ' . .'.uthority. "

!~ J\n'~~cr gener2.1 olJ~:ervi..itinn w~1i(;h I , 1).11der the

Mr . \Iv cnt znJ. ), if~ thc fol J oV/ing : Ol}.r CO:',:1":: 01'1. 1:].':.' ::iccords

em jm~ or-L~·',nt 1'1i..lCC to the rif'.:ht (':t' fr'c8 :1.s:'el'lbl~r [',n.d ~he

~.nri it j~: "'cc2s::::ary to ensure tha'c :.~ctj,vitics of that

In S v . '.rllrre11 :?nc1 Ot~1crs , 1973 (1) SA 248 ( CFD j a t

p . 25G V~N ZYL , AJP said as fo1Jows :

II Freeaorr of speech 2n~ freedo~ of assembly are

l~art; of the dCJp.o cratic rig'ht~; of every ci t:i.zen

ri ght s j CG.l olJ.sly for t he~1 2.r e rart of t he very

fOl1.n ll q t ions upon 'I'!h 'j ch Pc:a'J irli'1e~'lt it;: clf rests.

ccLrcio:l ',.."ei Cht c'.net it is cxtre)!lcly d:i.fficult to

orC;i.:'.nise it j.f there is no right of ~JL1.blic .

If

i

1-: I

-23-

The indictment alleges the existence of a conspiracy

in the various charges. The allegation of conspiracy, it

needs to be pointed out, is not restricted to a mere

organisational one only. The various conspiracies al~eged

can be identified as follows:

(a) Betv/een SASM and the Action Committee;

(b) Between S1.3M and the ssnc;

(c) Between SAS1I1 and its members;

(d) Bctvlcen the SSRC and its members;

(e) Between SASM/the SSRC and the co-conspirators

listed in Schedules Ie' and 'D';

(f) Between individual accused;

(g) Between the accused and one or other of

the organisations listed o

Apart from the allegation of conspiracy, there is also

the allegation of an incitement, etc. and participation"

in the indictment on the main count. In order to unaer-

stand the indictment, and to be able to assess the burden

of proof placed on the State, it is firstly necessary to

define a conspiracy.

A conspiracy is an agreement between two or more

people to commit or to aid or procure the commission of

a crime. It is not merely a convergence of "'fills but a

concurrence resulting from agreement. See in this regard

De Wet & SVJanepoel Strafreg, 2nd. Edition, po 172, Hunt,

South African Criminal Law, Vol. 2 po406, S v. Moumbaris

and Others, 1974(1) SA 681 (T) at p.687A and S v. Alexander ,

and Others (2), 1965(2) SA 81~)at p.821H.

'., ' (

-24-

Under our common law a bare agreement, without an.

act performed in furtherance thereof, ~/ciS not a substan-

tive and indictable offence save in the case of treason.

Sec De Wet & Swanepoel, supra, 176; Hunt, supra, 406;

S v. Cooper and Others, 1976(2) SA 875 (T) at p.878 and

r.1ournbaris' case at p.686. However, in terms of the

provisions of section 18(2) of the Riotous Assemblies

Act, Act No. 17 of 1956, such a conspiracy today will

constitute an offence. The actus reus of a conspiracy

is to be found in the agreement the parties entered into.

Once agreement has been reached the offence of conspiracy

is completed. As long as the conspiratorial agreement

remains in operation, it remains in existence until it is

tcrminated by a completion of performance or abandonment

or for whatever reason. See in this regard the Cooper's

case at p.879.

When the liability of the respective conspirators

is considered, it, is trite law that when two or more

persons arc engaged in a common enterprise,the acts and

declarations of anyone of them done in pursuance of that

common purpose may be admissible against the other.

If various people pursued by their acts, the same

unlawful object, often by the same means, some performing

one part of an act and others another part of the same act

so as · to complete it with a view to the attainment of the

object which they were pursueing , the conclusion may be

justified that they have been engaged in a conspiracy to

effect that Object. The question to be answered is,

whether they had a corrnnon design and whether they pursued

it by ,common meanso

hcfo:ce otbcr:l

t JC! <;o'''~J:r>iracy , ;.tlthoue;h not hi,:, : rtj ci~··'..tion therein ,

O ·r:· ., .. L _'.

~Jomrobi.lris I S case at p . 687 .

CioL~:; (; (surra ) on.p . 822 a~~roved in S v.

SA 1 (A) 0

.j't... _. l· ..120 :.:"..n<1

S () e l1.1 eXG.nc.i 81" ~3

·f.·C''-'c'oJ ck 1 o~7<~ ( 1 ) ,""'1,1. f ; - .. t __ .',

This general ~rjncirle will a~~Jy ~ith eve~ more

or(~:::·oni';:.' - ti on 1 beC~'1..I.:-lC loc.;i cCt] ly t:~2 o:f:'fi. c (,!-bcarer r.'iJl

ohly in vey:~r :..~cc e:"'tLon::l.l c i rCl'l!'!-lt:"'.nces be in a ro~:ition

Collection Number: AD2021

SOUTH AFRICAN INSTITUTE OF RACE RELATIONS, Security trials 1958-1982

PUBLISHER: Publisher:- Historical Papers, University of the Witwatersrand Location:- Johannesburg ©2012

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