. ' \ !.
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
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