Ngwevela Judgement 8

action, even if he did not give an opportunity to the person affected to make any relevant statement or to correct or con­trovert any relevant statement brought forward to his prejudice "For instance" added the learned Lord, "a decision may have to be given on an 'Emergency', when promptitude is of great importance; or there might be obstructive conduct on the part of the person affected." See also the passage quoted from Bechler's case above. It was not contended by the Crown that there was an emergency in the present case nor is there any evidence on the record to that effect. Furthermore, there is nothing to show that the appellant adopted an obstructive attitude. I respectfully agree with Stratford A.C.J. as to the importance of the maxim audi alteram partem. The maxim should be enforced unless it is clear that Parliament has expressly or by necessary implication enacted that it should not apply or that there are exceptional circumstances which would justify the Court's not giving effect to it.

In De Verteuil v Knaggs (supra) the Governor first made an order ex parte and only after that was done did he give the person concerned an opportunity of making an answer to the case against him and the Privy Council held that that was suffic­ient. A similar view was taken in Attorney-General v Hooper (1893, 3 Ch. 483) and in the cases quoted in the judgement in that case. Those cases differ from the present case in that in those cases the orders issued did not have immediate effect whereas the notice issued in the present case did have that effect. A notice issued under Sec. 9 of the Act comes into operation immediately it is delivered or tendered to the per­son concerned; from that moment the notice is binding on him and if he contravenes the notice he is liable under Sec. 11 (h) and (ii) to imprisonment for a period not exceeding three years.

The case of Rex v Halliday (1917 A.C. 260) was quoted by Stratford A.C.J. in Sachs1 case (supra) and he referred especially to Lord Atkinson's speech at p. 273. Lord Atkinson in dealing with the subject of preventive justice said" One of the most effective ways of preventing a man

from communicating with the enemy or doing things such as are mentioned in s.l, sub-s. l(a) and (c), of tht. statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for some­thing much more important than his liberty or conven­ience, namely, for securing the public safety and de­fence of the realm. It must not be assumed that the powers conferred upon the Executive by this statute will be abused. By the several provisions already referred to eveiy precaution that could be reasonably taken has, I think, been taken to prevent error or abuse.One of the provisions referred to by Lord Atkinson

whereby every precaution that could reasonably be taken to prevent error or abuse is set forth as follows in Lord Findlay1s speech at p. 268" The order provides for representations being.made

against it and for their consideration by an advisory committee presided over by a judge of the High Court, and states that, if the Home Secretary is satisfied by the report of such committee that the order may be revoked or varied without injury to the public safety and the, defence of the realm, he will revoke or vary the order."

Ngwevela Judgement 9 -

The Law Lords who gave the majority decision in Halliday1s case (supra) emphasised that the relevant statute

* was passed at a time of supreme national danger which stillexisted. The power oonferred on His Majesty in Council was limited to the duration of the war which was then raging.The considerations which I have mentioned viz: the setting up of an advisory committee to hear representations made by per­sons affected by an order of internment and the fact that the legislation was passed during war time and was of a temporary nature, are not present in the case I am now considering. Consequently there does not seem to be any similarity between Halliday *s case and the present one. Both in Halliday's case and Sachs1 case (supra) the Courts, in arriving at their ultim­ate conclusion, were influenced by the fact that the special provision which was made for the application after the order was issued of the maxim audi alteram partem negatived the application of the maxim before the issue of the order.

Section 9 of Act 44 of 1950 was considered by this Court in the case of Garment Workers* Union and Sachs v Minister of Justice (1952 (4) S.A. 3&4) and Rex v Sachs (1953 (l) S,A. 392). In those cases the maxim audi alteram partem was not invoked by the appellant and as a result the judgment of this Court makes no mention of it. Those cases cannot, therefore, be said to govern the present case.

The case of Sachs v Swart N.Q. (1952 (2) P.H. 137) decided in the Transvaal Provincial Division, must be over­ruled in so far as it was decided therein that the maxim could not be invoked by a person likely to be affected by a notice issied under Sec. 9 of the Act.M

The conclusion at which I arrive is that the appellant was entitled to be given an opportunity of being heard before the Minister exercised his powers under Section 9- As the Crown admitted that no such opportunity was given, the convict­ion cannot stand. In view of this concDusion it is unnecessary for me to consider the second ground on which Mr. Molteno attacked the conviction.

The appeal is allowed and the conviction and sentence set aside.

GREENBERG J.A.SCHREINER J.A.

' CONCURHOEXTER J.A.DE BEER A.J.A.

1

ANNEXURE "A. 5."

STATEMENT ISSUED BY MESSRS. W.M. SISULU AND Y.A. CACHALIA, JOINT SECRETARIES OF THE NATIONAL ACTION COMMITTEE OF THE AFRICAN NATIONAL CONGRESS ^ND THE SOUTH AFRICAN INDIA,; CONGRESS.

The National Action Committee of the A.N.C. and S.A.I.C. vigorously repudiates the implications by Mr. Swart in recent speeches tiiat the Campaign for the Defiance of Unjust Laws is of a violent or "Riotous character." The cam- paign has shown itself clearly to be of a peaceful and disciplined character, and all credit is due to the volunteers and Congress members and supporters who, in the face of repeated blatant provocation, have on every occassion, behaved with restraint and dignity.

It is true that violence is becoming increasingly prevalent, but who is responsible for it? Mr. Swart had no word of condemnation for the Nationalist supporters who make a regular practice of violently disrupting- opposition meetings or of the mounting aggressiveness of the police. On numerous occasions policemen have charged and attacked peaceful crowds both non-European and European attending public meetings or political trials in the Courts. Assaults by policemen on in­dividuals, particularly non-Europeans awaiting trial, have become so disturbingly frequent that a number of sever criticisms have been made, not only by the press, but also be magistrates and judges, on those occurrences.

Though he claims to aim at "stamping out violencd" Mr. Swart made no attempt to curb the lawless violence of the police. On the contrary, he went out of his way to condone and encourage it. We cannot too strongly deprecate and pro­test against his remarks that "if policemen gp al-ig-htiy hgyrmd th^ lir.iita of tlisir powers... they should not be condemned in view of their difficult tasks: " and that while'""llji/faij possible... Ilia I innocent people had been struck by police batons", it was "just too bad if such people got hurt."

Such talk, coming from a person in the responsible position of Ministe of Justice, constitutes nothing less than a licence and an incitement to the police force to abandon all restraint in its dealings with the public and to take on the character of a force of Nazi storm troopers taking the law into their own hands.Mr. Swart's words exposed for all to see, the fascist outlook and aims of the present Government.

We do not know whether Mr. Swart was being facetious when, referring to the campaign for the Defiance of Unjust Laws, he said "if the laws are bad, it is up to the people to elect a new parliament and change the laws." If the Minister was joking, it was in very bad taste. Surely Mr. Swart is aware that the non-Europeans in South Africa do not enjoy the right to vote for parliament. This, indeed, is precisely the reason why a campaign of defiance of unjust laws has arisen. For we cannot respect laws which oppress us and in the making of which we have had no say. Denied a voice in parliament, our opposition to and protest against these laws must necessarily be expressed through extra parliamen­tary action.

South Africa can only advance to a prosperous, peaceful and demo­cratic future by the full integration of the non-European majority as citizens, enjoying and equal political and economic Tim alternative is rapidfutther progress towards the grim horrors of a Rationalist-fascist jstate, governed by lawless terror. The campaign f ,r the Defiance of Unjust Laws is therefore aimed at securing the freedom of all South Africans, whatever they race or colour. Already the campaign has evoked the most generous and enthusiastic support from the non-European people and from increasing numbers of democratic Europeans.

2/

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We are deeply convinced that our campaign is in accordance with the innermost needs and aspirations of our people, and we are resolutely determined to continue in the course which they, the people, have decided upon.

We are fully aware of the ceaseless attempts of the authorities to provoke "incidents" in order to furnish the excuse for a "state of emergency" and the assumption of complete dictatorial powers. We shall not allow such provo­cation to divest us from our path of disciplined and planned activity.

Nor shall we be intimidated by Mr. Snart's bullys talk of flogging and heavy statutory sentences for political offenders. In South Africa, as throughout history, tyranny and martyrdom can only strengthen the spirit and the will to freedom 6f oppressed peoples.

We shall continue to the end, our struggle against injustice and enslavement, for we know our cause is just and freedom shall prevail.

W.M. Sisulu Y.A. Cachalia Joint Secretaries.

ANNEXURE "A. 6."

STATEMENT ISSUED BY MESSRS. W.M. SISULU AND Y.A. CaCHaLIa , JOINT SECRETARIES OF THE NATIONAL ACTION COMHTTEE OF THE AFRICaN NATIONAL CONGRESS AND THE SOUTH AFRICAN INDIAN CONGRESS.

The trud causes of the recent disturbances at Port Elizabeth are to j be found in the explosive atmosphere in which South Africa has been placed by the I ruthless tyranny of its present rulers and its disregard for human feelings which | lias characterized their actions and public declarations.

The decision of the Port Elizabeth City Council to introduce a Curfew and impose a ban on all public gatherings of a non-religious nature, at a time when the non-European people of this country are engaged in a bitter struggle for the abolition of unjust and discriminatory laws and the removal of all undemocratic and oppressive restrictions on freedom of speech movement and assembly, is therefore not only an unjustifiable attack on the rights of the people but has precipitated a situation which is as unfortunate as it is unavoidable.

The people of South Africa, particularly the Europeans who are the electorate and who direct and control the affairs of this country are on trial.They will be judged by the stand they make in this critical situation. Today those in power are abandoning the rule of the law, they are resorting to undemo­cratic and barbaric practices and ministers of State boast of their instructions to the police to baton charge or shoot non-Europeans at will. These irresponsible utterances and actions of th_ Government have created chaos and therefore it is the duty of all right-thinking South Africans, irrespective of Race and Colour, to rise and halt the flood of fascism which is sweeping the country.

In a fight for a free and happy South Africa, the non-European people have no alternative but to resist by every means at their disposal any further en­croachment on their fundamental rights. The strike which commences in the Eastern Province next week is the only possible answey to the reactionary and ill-advised decision of the Port Elizabeth City Council, and meetings of non-Europeans in all important centres throughout South Africa are be.ng called with a view to taking appropriate action in sympathy and support.

W.M. Sisulu and Y.A. Cachalia.

Joint Secretaries National Action Committee of the A.N.C. & S.A.I.C.

ANNTTXUEE "A_7n

JUDGMENT, IN THE CASE AGAINST THE LEASERS OF THE DEFIANCE CAMPAIGN, DELIVERED BY JUSTICE RTJMPFF IN THE SUPREtflE COURT

OF SOUTH AFRICA (VttTWATERSRAiTO LOCAL DIVISION)ON DECEMBER 2, 1952.

The evidence in this matter discloses that at the end of 1951 > there was put before a conference of the African National Congress at Bloemfontein a report drawn up by a Joint Planning Council of the African National Congress and the South African Indian Congress.

The Joint Planning Council had been appointed at a conference of the National Executives of the African National Congress, the South African Indian Congress and the Repres­entatives of the Franchise Action Council (Cape) held in July 1951. At this conference a resolution was passed in the following terms s

"(l) To declare war on Pass Laws and Stock Limitation, the Group Areas Act and the Voters Representat­ion Act, the Suppression of Communism and the Bantu Authorities Act;

(2) To embark upon an immediate mass campaign for the repeal of these oppressive laws, and

(3) To establish a Joint Planning Council to co­ordinate the efforts of the National Organis­ations of the African, Indian and Coloured peoples in this mass campaign,"

The report of the Joint Planning Council was accepi.ed by the Bloemfontein Conference of the African National Congress, and it was decided to direct the branches of the African National Congress to make preparations for the carry­ing out of the recommendations in the report. The plan of action contained in the report was also endorsed by the Conference of the South African Indian Congress held in Johannesburg in January of this yeai.

In its report, as amended, a copy of which is Exhibit C(2), the Joint Planning Council recommended a plan of action to obtain the repeal of the so-called oppressive laws, referred to in the resolution of the Conference of the National Executives of July, 1951* Particulars of the plan of action appear from the report and it is necessary to quote this report somewhat extensively.

Paragraph three reads as follows

"Having given due and serious attention to the task before us, we have great pleasui’e in recommending the foll­owing plan of action to the African National Congress and the South African Indian Congress for consideration and decision at their forthcoming Annual Conferences."

Paragraph four :—/ ... - 2 -

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"The African National Congress in Conference assembled at Bloemfontein on the 15th - 17th December 1951» should call upon the Union Government to repeal the aforementioned acts by NOT LATER THAN 29th FEBRUARY, 1952. This call be supported by the Conference of the South African Indian Congress and by all other democratic organisations which find themselves in full agreement with it."

Paragraph five"In the event of the Government failing to take action

for the repeal of these acts which cannot be tolerated by the people any longer, the two Congresses will embark upon mass action for a redress of the just and legitimate griev­ances of the majority of the South African people. It is our considered opinion that such mass action should commence on the 6th. April, 1952, the Van Riebeeck Tercentenary. We consider this day to be most appropriate for the commence­ment of the struggle as it marks one of the greatest turning points in South African history by the advent of European settlers in this country, followed by colonial and imperial­ist exploitation which has degraded, humiliated and kept in bondage the vast masses of the Non-White people.

"Or, alternatively,on June 26th. 1952. We consider this day equally as signif­icant as April the 6th. for the commencement of the struggle as it also ranks as one of the greatest turning points in South African history. On this day we commemorate the National Day of Protest held on 26th June, 1950, the day on which on the pall of the President-General of the iifrican National Congress, Dr. J.S. Moroka, this country witnessed the greatest demonstration of fraternal solidarity and unity of purpose on the part of all sections of the Non—Siropean people in the national protest against unjust laws. The 26th June was one of the first steps towards freedom. It is an historical duty that on this day we should pay trib­ute to the fighting spirit, social responsibility and political understanding of our people; remember the brave sacrifices of the people and pay our homage to all those who had given their very lives in the struggle for freedom.

"Although we have suggested two alternative dates, the Joint Planning Council strongly favours the earlier date as it considers that three clear calendar months would give the people ample time to set the machinery of struggle into motion."

Paragraph six :-"With regard to the form of struggle best suited to

our conditions we have been constrained to bear in mind the political and eoonomic set-up of our country, the relation­ship of the rural to the urban population, the development of the trade union movement with particular reference to the disabilities and state of organisation of the non-White workers, the economic status of the various sections of the non-White people and the level of organisation of the National Liberatory movements. We are therefore of the opinion that in these given historical conditions the forms of struggle for obtaining the repeal of unjust laws which should be considered are :- (a) defiance of unjust laws

and(b) industrial action."Paragraph seven :—

/ ... - 3 -

I

"In dealing with the two forms of struggle mention­ed in paragraph six, we feel it necessary to reiterate the following fundamental principle which is the kernel of our struggle for freedom.

"We believe that without the realisation of this principle race hatred and bitterness cannot be eliminated and the overwhelming majority of the people cannot find a firm foundation for progress and happiness.

"It is to be noted, however, that the present cam­paign of defiance of unjust laws is only directed for the purposes .of securing the repeal of those unjust laws mention­ed in the resolution of the Joint Conference.

"aLL PEOPLE IRRESPECTIVE OF THE NATIONAL GROUPS THEY MAY BELONG TO, AML IRRESPECTIVE OF THE COLOUR OF THEIR SKIN, ARE ENTITLED TO LIVE A IULL AND FREE LIFE ON THE BASIS OF THE EULLEST EQUALITY. IULL DEMOCRATIC RIGHTS WITH A DIRECT SAY IN THE AFFAIRS OF THE GOVERNMENT ARE THE INALIENABLE RIGHTS OF EVERY MAN - A RIGHT WHICH IN SOUTH AFRICA MUST BE REALISED NOW IF THE COUNTRY IS TO BE SAVED FROM SOCIAL CHAOS AND TYRANNY AND FROM THE EVILS ARISING OUT OF THE EXISTING DENIAL OF FRANCHISE TO VAST MASSES OF THE POPULAT­ION ON GROUNDS OF RACE AND COLOUR. THE STRUGGLE OTCH THE NATIONS ORGANISATIONS OF THE NON-EUROPEAN PEOPLE ARE CON­DUCTING IS NOT DIRECTED AGAINST ANY RACE OR NATIONAL GROUP, BUT AGAINST THE UNJUST LAWS WHICH KEEP IN PERPETUAL SUBJECT­ION AND MISERY VAST SECTIONS OF THE POPULATION. IT IS FOR THE CRELiTION OF CONDITIONS ’MICH WILL RESTORE HUMAN DIGNITY, EQUALITY AND FREEDOM TO EVERY SOUTH AFRICAN."

Paragraph eight :-

"Plan of Action. We recommend that the struggle for securing the repeal of unjust laws be DEFIANCE OF UNJUST LAWS based on Non-Co-Operation. Defiance of unjust laws should take the form of committing breaches of certain selected laws and regulations which are undemocratic, unjust, racially discriminatory and repugnant to the natural rights of man.

"Defiance of Unjust Laws should be planned into three stages - although the timing would to a large extent depend on the progress, development and the outcome of the previous stage.

"Three stages of Defiance of Unjust Laws

(a) First Stage : Commencement of the struggle by calling upon selected and trained persons to go into action in the big centres, e.g. Johannesburg, Cape Town, Bloemfontein, Port Elizabeth and Durban.

(b) Second Stage : Number of volunteer aorps to be in­creased as well as the number of centres of operation.

(c) Third Stage s This is the stage of mass action during which as far as possible, the struggle should broaden out on a countiy-wide scale and assume a general mass character. For its success perparations on a mass scale to cover the people both in the urban and rural areas would be necessaiy."

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Paragraph nine s—

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"Joint Planning Council. In order to prosecute and put into effect the plan of Defiance of Unjust Laws and in order to co-ordinate the efforts of the various national groups as well as of the various centres both urban and rural, it will be necessary for the Planning Council from time to time to make recommendations to the Executive Committee of the National Organisations which will jointly conduct, prosecute, direct and co-ordinate the campaign of Defiance of Unjust Laws as agreed upon by the Conference of the African National Congress and supported by the Conference of the South African Indian Congress.The Council must be empowered :

(a) to co-opt members to the Council and fill vacancies with the approval of the Executive organs of the African National Congress and the South African Indian Congress;

(b) invite representatives from Non—European organisat­ions which are in full agreement with, and active participants in, the campaign, to serve as non- voting members of the Council;

(c) frame rules and regulations for the guidance of the campaign;

(d) set up provincial, regional and/or local councils within the framework of the existing organisations;

(e) issue instructions for the organisation of volunteer corps and frame the necessary code of discipline for these volunteers."

Paragraph ten deals with the details of the organis­ation proposed, and paragraph eleven states as follows

"Laws to be tackled. In recommending laws and regulations which should be tackled we have bome in mind the laws which are most obnoxious and which are capable of being defied.

"The African National Congress. Insofar as the African National Congress is concerned, the laws which stand out for attack are naturally the Pass Laws, and regualtions relating to stock limitation.

"Method of Struggle on the Pass Laws :

(a) A Unit of Volunteer Corps should be called upon to defy a certain aspect of the Pass Law, e.g. enter a Location without a permit. The Unit chosen goes into action on the appointed day, enters the locat­ion and holds a meeting. If confronted by the authorities, the leader and all the members of the Unit court arrest and bear the penalty of imprison­ment.

(b) Selected leaders to declare that they will not carry any form of passes including the Exemption Pass and thus be prepared to bear the penalty of the law.

(c) Other forms of struggle on the Pass Laws can also be undertaken depending on the conditions in the differ­ent areas throughout the country."

The rest of the paragraph deals with proposed rural action and reads :

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1 r':shilst the volunteers go into action on the Pass Laws in the Urban Areas, the people in the rural areas should mobilise to resist the culling of the cattle and stock limitation.

(a) Stock Limitation: People in tne xural areas to be asked not to co-operate with the authorities in any way in culling cattle or limiting livestock.

(b) Meetings and demonstrations to be held.

(c) Regional Conferences: Such Conferences in the rural areas should be called to discuss the problems of the people and to decide on the most suitable form of Defiance of Unjust Laws in the area."

Then the paragraph goes on to deal with suggestions in regard to the South African Indian Congress and paragraph twelve deals with the Population Registration Act. The rest of the report deals with possible future industrial action, the obtaining of funds and the National Pledge. The report is signed by J.S. Moroka, as Chairman, Y.M. Dadoo, Y. Cachalia, J.B. Marks and W.M. Sisulu. Dadoo and Cachalia signed as representatives of the South African Indian Cong­ress, and Marks and Sisulu as representatives of the African National Congress.

Pursuant to the resolution of the Bloemfontein Confer­ence, a letter was written to the Prime Minister on behalf of the African National Congress, calling upon the Govern­ment to repeal the so-called unjust laws by not later than the 29th February, failing which the African National Cong­ress would hold protest demonstrations and meetings on the 6th April, 1952, as a prelude to the implementation of the plan for the defiance of unjust laws.

This demand was not satisfied and meetings of protest were held inter alia on the 24th February, 1952, at Orlando, Johannesburg, on the 9th March at Alexandra Township, Johannesburg, and on the 6th April at Fordsburg.

At these meetings the Non—European people were called upon to fight for their freedom and were urged to particip­ate in the campaign launched by the African National Cong­ress. There is evidence that volunteers were formed into units to contravene the provisions of such laws as might be decided upon, and there is evidence that numbers of these unite were actually arrested.

The accused before me are charged with contravening section 11(b) of Act no. 44 of 1950, and the charge with particulars is set out as follows: In that during or about the period 15th December, 1951? to 13th .august, 1952, and at Johannesburg, in the district of Johannesburg, the accus­ed did wrongfully and unlawfully, by means of speeches, notices, newsletters and other documents, advocate, advise or encourage the achievement of an object of communism (as defined by section l(l) (ii)(b) of Act No. 44 of 1950) or acts or omissions which are calculated to further the achievement of such object.

Particulars as to charge are as follows :—l.(a) The accused advocated, advised or encouraged a

scheme which aimed at the bringing about of politic­al, industrial, social or economic changes within

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the Union (as set out in paragraph' 2 below) by means which included the unlawful acts or omissions or the threat of such acts or omissions (as set out in paragraph 3 below).

(b) jilternatively, the accused advocated, advised or encouraged acts or omissions (as set out in para­graph 3 below) which are calculated to further the achievement of the objects referred to in paragraphs l(a) and 2.

2. The political, industrial, social or economic changes are those ’which would result from

(a) the abolition of laws differentiating between Europeans and Non-Europeans and/or

(b) the extension of the full rights of franchise to the Non-European population of the Union on the same basis as that possessed by Europeans and the granting to them of direct representation in Parliament, prov­incial and municipal councils in all provinces and/or

(c) the abolition of all or any of the laws in force in the Union relating to(i) the suppression of communism;(|ii) the segregation of the Races (Group .Areas);(iii) Limitation of Stock;(iv) the carrying of passes by natives;(v) the establishment of Bantu authorities (Act

No. 68 of 1951)*3. The unlawful acts or omissions are the contravention

by natives and/or Asiatics and/or Coloured persons of Union laws, regulations or municipal by-laws, relat­ing to s—the carrying of passes and peimits by natives; the entering of native locations under control of municipalities without permits; the limitation of stock in native areas; the entry of Asiatics into certain provinces with­out permission;the separate facilities provided for the exclusive use of Europeans or Non—Europeans on trains, rail­way stations and in post offices;the establishment of group areas (Act No. 41 of 1950)j the registration of the population of the Union (xict No. 30 of 1950);the Suppression of Communism (Act No. 44 of 1950).It is necessary to refer to the relevant provisions

of Act No. 44 of 1950. Section 11(a) and (b) read as follows:

(h)

11 11. Any person who -(a) performs any act which is calculated to further the

achievement of any of the objects of communism;(b) advocates, advises, defends or encourages the achieve­

ment of any such object or any act or omission which is calculated to further the achievement of any such object;3hall be guilty of an offence, and liable —

(i) in the case of an offence referred to in paragraph(a), (b), (c) or (d) to imprisonment for a period

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not exceeding ten years."

There is no formal definition of the words "objects of communism", bit in section l(l)(ii) of the Act "communism" is defined as follows

" l.(l) In this Act, unless the context otherwise indicates -

(i) ....(ii) "•ommuniam" means the doctrine of Marxian socialism as expounded by Lenin or Trotsky, the Third Communist International (the Comintern) or the Communist Infor­mation Bureau (the Cominform) or any related forai of that doctrine expounded or advocated in the Union for the promotion of the fundamental principles of that doctrine and includes, in particular, any doctrine or scheme -

which aims at the establishment of a despotic system of government based on the dictatorship of the proletariat under which one political organisation only is recognised and all other political organisations are suppressed or eliminated.; orwhich aims at bringing about any political, industrial, social or economic change within the Union by the promotion of disturbance or disorder, by unlawful acts or omissions or by the ^hreat of such acts or omissions or by means which include the promotion of disturbance or disorder, or such acts or omissions or threat; or which aims at bringing about any political, industrial, social or economic change within the Union in accordance with the directions or under the guidance of or in co-operation with any foreign government or any foreign or internat­ional institution whose 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 identioal with or similar to any system in oper­ation in any country wihch has adopted a system of government such as is described in paragraph(a); orwhich aims at the encouragement of feelings of hostility between the European and Non—European races of the Union the consequences of which are calculated to further the achievement of any object referred to in paragraph (a) or (b)."

Submissions were made by Mr. Hanson, who appeared on behalf of Accused Numbers 1, 2, 4, 5> 6, 7, 8, 9* 10, 11,12, 13, 14, 15, and 1 7, as to the interpretation of the Act, and these submissions were adopted by Mr. Zwarensteir who appeared for Accused Numbers 3> 16, 18 and 19* Mr. Franklin,appearing for Accused No. 20, also adopted the arguments of Mr. Hanson, and added certain submissions in regard to the duties of the Court in interpreting the pro­visions of a penal statute that are capable of more than one meaning.

In regard to the charge, as framed, it was submitted on behalf of the accused that the word "object" referred to in section ll(b) of the Act is an object of communism, the object mentioned in section ll(a), and that no evidence was led by the Crown as to what the objects of communism are.

(a)

00

(o)

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Attention was drawn to sections 2(2)(b) and 2(2)(c) of the Act, which it was submitted differentiate between the general teim "objects of communism" and the term "objects referred to in sub-paragraphs(a), (b), (c) or (d) of the definition of communism in section one".

Section 2(2) reads as follows :-"If the Governor-General is satisfied -

(a) that any other organisation professes or has on or after the fifth day of May, 1950, and before the commencement of this Act, professed by its name or otherwise, to be an organisation for propagating the principles or promoting the spread of communism; or

(b) that the purpose or one of the purposes of any organ­isation is to propagate the principles or promote the spread of communism or to further the achievement of any of tne objects of communsim; or

(c) that any organisation engages in activities which are calculated to further the achievement of any of the objects referred to in paragraph (a), (b), (c) or (d) of the definition of 'communism' in section one; or

(d) that any organisation is controlled, directly or in­directly, by an organisation referred to in sub­section (l), or paragraph (a), (b), or (c) of this sub-section;

he may without notice to the organisation concerned by pro­clamation in the Gazette declare that organisation to be an unlawful organisation, and the Governor-General may in like manner withdraw any such proclamation."

Although there is no formal definition of the words "objects of communism", it seems to me that looking at the wording of the Act as a whole, and section l(ii) in partic­ular, the Legislature intended the aims set out in sub­paragraphs (a), (b), (c) and (d) of section l(ii) to be objects of communism for purposes of the Act. Literally "communism" is defined inter alia as a doctrine or scheme with certain specified aims. If these aims or objects in the form of a doctrine or schema constitute communism, then it must logically follow that those objects are objects of communism.

The difference in wording between section 2(2)(b) and section 2(2)(c), does not in my view support the argu­ment on behalf of the accused. Section 2(2)(c) refers to an organisation that actually engages in activities unlike the organisations referred to in section 2(2)(a) and (b).In their case their object or professed object is looked at.

The Act is an Act for the suppression of communism, and the very fact that an organisation may be declared un­lawful in terms of section 2(2) if it engages in activities which are calculated to further the achievement of any of the objects referred to in sub—paragraphs (a), (b), (c) or(d) of the definition of communism, is in my view a clear indication that those objects are objects of communism.

I am satisfied that for purposes of section 11(a) and (b) at least some of the objects of communism are set out in the definition of communism in section l(ii).

It was further submitted that having regard to the

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Judgement - 9 -

scope of the Act and to the words "objects of communism" in section 11 (a), and the wording of the definition of "comiuun--

* ism" in section l(ii). of the Act, there should have beenevidence that the political, industrial, social or economic change alleged to have been aimed at, was a change within the concepts of Marxian Socialism. It was argued that the definition of "communism" contains a "genus", viz. the doc-

* trine of Marxian Socialism as expounded by certain personsor bodies, and that the doctrines or schemes defined in sub- paragraphs (a), (b), (c) and (d) of section l(ii) are "species" of the "genus".

It was contended that the definitions in sub—para­graphs (a), (b), (c) and (d) of section l(ii) must be limit­ed and controlled by the main definition. It was said that the long and short titles of the A.ct clearly show that the Legislature intended to strike at communism, and that in re­gard to sub—paragraph (a) it could not intend to label as "communism" the aim to bring about political, industrial, social or economic change unless that change was a funda­mental change from democracy to something having the attrib­utes of Marxian Socialism.

Reliance was also placed on the words in the definit­ion "and includes in particular" as indicating something less than the main doctrine and a qualification of it.

It was argued that the word "includes" should be given a restrictive meaning. Alternatively, it was submitted that the definition is capable of two meanings and that the Stat-

„ ute being penal in its nature must be construed favourablyto the accused.

I do not think that a reference to the long and short titles afford any assistance in the interpretation of the definition of communism. The two titles indicate the Legis­lature's intention to suppress communism and communistic activities.

To ascertain what is meant by communism for purposes of the Act one looks at its definition, a definition which clearly constitutes the cornerstone of the Act.

I do not think that the scope of the Act or the lang­uage used in the definition, indicate that the objects set out in subparagraphs (a), (b), (c) and (d) of section l(ii) were intended to be qualified by the main definition. If that had been the intention of the Legislature, it would in my view have used different language to express such intent­ion. I also think that the character of the aims as set out, for instance, in sub-paragraphs (a) or (c), indicates that the Legislature intended the scheme, coupled with the aims referred to in each paragraph, to be in itself a com­plete manifestation of communism. If that is so, the same would apply to sub—paragraph (b).

It is true that as far as sub-paragraph (b) is con­cerned, the Legislature has brought within the scope of statutory communism activities which otherwise and normal­ly would not show a resemblance to what is commonly known

« as communism.

It has been suggested that the Legislature could not possibly have intended this and that this result must lead to absurdities. I do not think that I am entitled to say that the Legislature, for the purpose of suppressing

/ ... - 10 -

communism, did not intend to enlarge the meaning of commun­ism so as to include unlawful acts hitherto regarded as being outside the scope of political doctrines. The Legis­lature may have considered it necessary for attaining its purpose to extend the provisions of the Act to unlawful act­ivities that normally would not be described as acts of communism.

I do not think that the words "includes in particular" in the definition were intended to convey the meaning that bag been suggested by Mr. Hanson. I think that the words "in particular" mean "particularly for purposes of this Act" , thereby accentuating the difference between the statutory meaning of communism and what is commonly known as communism.

It is significant, too, that in the Afrikaans version of the Act, which is the signed version, the words used for "includes in particular" are "en in besonder ook".

I am driven to the conclusion that the definition clause carries one meaning only and I, therefore, decide that it was not necessary for the Crown to lead evidence to establish that the changes aimed at under sub-paragraph(b) were related to Marxian Socialism.

A further argument advanced on behalf of the accused was that before a conviction can take place under section 11(b) read with section l(ii)(b), the evidence must show that the unlawful acts were the direct means to bring about the change described in sub—paragraph (b), and that in this case the evidence clearly showed that any defiance of laws was a defiance to influence and compel Parliament to law­fully repeal the statutes complained of. It was said that if the Legislature had intended unlawful acts indirectly causing the change to be included in the section it would have said so by the use of the words "directly or indirect­ly", a phrase often used in statutes.

There would be substance in this argument if section l(ii)(b) had not contained the words "or by means which include the promotion of disturbance or disorder or such acts or omissions or threat".

It seems to me that the Legislature envisaged the possibility of the change being brought about by a prooess, a series of acts, which might consist of both lawful and un­lawful acts. If that is so then the only inference in my opinion that can be drawn from this provision is that the unlawful act need not be the immediate cause of the change.

The final argument on behalf of the defence was that there is no evidence before the Court that the repeal of the acts set out in the plan of action would bring about a political, industrial, social or economic change in terms of sub—paragraph (b) of the definition. It seems to me to be obvious that some of the statutes complained of are statutes that were intended to differentiate between Europeans and Non—Europeans in this country. A repeal of those statutes would have the effect of removing the differentiation creat­ed by them. Such repeal would inevitably result in a polit­ical, industrial, social or economic change, within the ordinary meaning of those adjectives, depending on the scope of differentiation as determined by each statute.

The object of a statute can be determined from the statute itself; see for instance the remarks of INNES C.J,

Judgement - l i ­

as he then was, in the case of Dadoo Ltd.and others vs. Krugersdorp Municipal Council, 1920 A.D. at p. 549> where, dealing with the Transvaal Laws prohibiting Asiatics from owning fixed property and coloured persons from acquiring or occupying ground held under the Gold Law, he says :

"No doubt these enactments were passed in further­ance of a policy of social, political and economic inequal-^ ̂ity as between white and coloured inhabitants of the Republic .

In my view if the effect of a statute is to bring about a political, industrial, po^ial or economic change, the repeal of such statute will, in the absence of other legislation affecting the subject matter, result in a change back to the original position, which change will again be a political, industrial, social or economic change.

I hold, therefore, that it was not necessary for the Crown in this case to lead evidence to show that the effect of the repeal of the statutes complained of would be a change of the nature as set out in sub—paragraph (a) of section l(ii) of the definition.

The accused did not dispute the evidence led for the Crown. I find that the plan of action contained in the re­port of the Joint Planning Council is a scheme in terms of section l(ii) of the Act.

I also find on the evidence bexore me that each one of che accused advocated, advised or encouraged the plan of action and its aims.

In view of my interpretation of the Act I must find each accused guilty of the charge as laid.

SENTENCE

RUMFF. J. I have heard the evidence and I have listened to the addresses on your behalf. It is not for me to judge ohe wisdom of legislation. That is the province of the Legislat­ure. I have to interpret the law and to apply it to the facts put before me. On the evidence it appears that some of you can be said to be in the position of creators of the plan of action referred to in the report by the Joint Plan­ning Council. All of you have in my vie w advocated the aims of the plan and have actively been associated in the execut­ion of the plan. On the whole, however, I do not think I should draw a distinction as far as the sentence is concern­ed. I have decided to impose a suspended sentence. I have done so because I accept the evidence that you have consist­ently advised your followers to follow a peaceful course- of action and to avoid violence in any shape or form. I know that the Act comprises a range of acts from open non—comp­liance of laws to something that equals high treason. In all the circumstances of the case I feel I am justified in imposing a suspended sentence. The sentence will be nine months imprisonment with hard labour in respect of each of you, suspended for a period of two years on condition that you are not found guilty of a contravention of section 11(a) and (b) of Act No. 44 of 1952.

ANNEXURI "A8"

mDICTMENT ( AS AMENDED )

IN THE SUPREME COURT OP SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)

The Attorney-General of the Transvaal Province, who as such prosecutes for and on behalf of Her Majesty the Queen, presents and informs the Court that :

1. WALTER MAX SISULU 11. ISMAIL AHMED CACHALIA2. DAVID WILCOX BOPAPE 12. MARUPENG SEPEREPERE3. RISSIK H. DESAI 13. YUSUF AHMED CACHALIA4. JAMES GEORGE PHILLIPS 14. NELSON MANDELA5. YUSUF MAHOMED DADOO 15. JOHN JOSEPH MARKS6. NEVERTHE SATH THANDRAY 16. DILIZINTABA MJI7. STEPHEN EPHRAIM SELLO 17. MOSES M. KOTANE8. ISIAH MACDONALD MASEKO 18. HARRISON MOTLANA9. NANA SITA 19. AHMED MOHAMED KATHRADA10. DANIEL TLOOME 20. JAMES S. MOROKA

(hereafter called the accused) are guilty of the crime of CONTRAVENING SECTION 11(b) OF ACT 44 OF 1950.

In that during or about the period 15th. December, 1951, to 13th August, 1952, and at Johannesburg in the district of Johannesburg, the accused did wrongfully and unlawfully, by means of speeches, notices, newsletters and other documents, advocate, advise or encourage the achieve­ment of an object of communism (as defined by section l(l)(ii)(b) of Act 44 of 1950) or acts or omissions which are calculated to further the achievement of such object.

Particulars to charge1.(a) The accused advocated, advised or encouraged a scheme

which aimed at the bringing about of political, industrial, social or economic changes within the Union (as set out in paragraph 2 below) by means which included the unlawful acts or omissions or the threat of such acts or omissions (as set out in paragraph 3 below);

1. (b) altematively; the accused advocated, advised orencouraged acts or omissions (as set out in paragraph 3 below) which are calculated to further the achievement of the objects referred to in paragraphs l(a) and 2.

2. The political, industrial, social or economic changes are those which would result from :(a) the abolition of laws differentiating between

Europeans and Non—Europeans and/or(b) the extension of the full rights of franchise to the

Non-European population of the Union on the same basis as that possessed by Europeans and the granting to them of direct representation in Parliament, provincial and municipal councils in all provinces and/or

/ ... - 2 -

Indictment - 2 -

(c) the abolition of all or any of the laws in force in the Union relating to(i) the Suppression of Communism;(ii) the Segregation of the Races (Group Areas);(iii) Limitation of Stock;(iv) the carrying of passes by natives;(v) the establishment of Bantu Authorities

(Act 68 of 1951).3. The unlawful acts or omissions are the contravention by

natives and/or Asiatics and/or Coloured persons of Union Laws or regulations or municipal by-laws, relating to(a) the carrying of passes and permits by natives.(b) the entering of native locations under control of

municipalities without permits.%

(c) the limitation of stock in native areas.

(d) the entiy of Asiatics into certain provinces without permission.

(e) the separate facilities provided for the exclusive use of Europeans or Non-Europeans on trains, rail­way stations and in post offices.

(f) the establishment of group areas (Act 41 of 1950).(g) the registration of the population of the Union

(Act 30 of 1950).(h) the suppression of communism (Act 44 of 1950).

In case of conviction the said Attorney-General prays for judgement against the accused according to law.

W. J. McKENZIE

ATTORNEY-GENERAL (TRANSVAAL PROVINCE)

4

ANIFXUKE "Blw

THE AFRICAN NATIONAL CONGRESSJohannesburg.

1st March, 1954.

The Secretary,South African Indian Congress,4a, Kort Street,Johannesburg. #

Dear Friend,I have been directed by my Executive to invite your National

Executive to a Conference of the National Executives of the South African Indian Congress, the South African Congress of Democrats, and the' South African Coloured Peoples Organisation and the African National Congress, on the 20th and 21st March 1954.

This Conference is to discuss a resolution of the African National Congress which calls for a South African Peoples' Congress, of all people, irrespective of colour, to work out a Freedom Charter. The African National Congress Resolution is as follows:

"Conference instructe the National Executive Committee to make immediate preparations for the organisation of a Congress of trie People of South Africa, whose task shall be to work out a Freedom Charter for all the peoples and groups in the countiy. To this end, the Conference urges the African National Congress Executive Committee and the National Executives of the South African Indian Congress, the Congress of Democrats, the Coloured Peoples Organis­ation^) or any other demoaratic organisations, for the -purpose of placing before them the plan of the Congress and to obtain their co-operative support in creating a truly representative CONVENTION of the PEOPLES OF SOUTH AFRICA."The pirpose of the Conference is to work out tiie details for the

National Convention of the Peoples of South Africa.Kindly let me know at the earliest time possible, your reaction

to this proposed Conference, and who will attend the Conference.

Yours fraternally,

(Sgd.) W.M. SISULU SECRETARY-GENERAL, A.N.C.

Collection Number: AD1812

RECORDS RELATING TO THE 'TREASON TRIAL' (REGINA vs F. ADAMS AND OTHERS ON CHARGE OF HIGH TREASON, ETC.), 1956 1961 TREASON TRIAL, 1956 1961

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