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LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

BRIEFING PAPER ON THE

UNITED DEMOCRATIC FRONT TREASON TRIAL

state y. Mawalal Ramgobin and 15 Others,

The Supreme Court of South Africa (Natal Provincial Division) Pietermaritzburg, South Africa

August 1985

Southern Africa project Lawyers' Committee for Civil Rights Under Law 1400 Eye Street, N.W. Suite 400 Washington, D.C. 20005 -.

LA WYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

SUITE 400 • 1400 EYE STREET, NORTHWEST. WASHINGTON, D.C. 20005 • PHONE (202) 371-1212

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C.

BRIEFING PAPER ON THE UNITED DEMOCRATIC FRONT TREASON TRIAL

State v. Mawalal Rarngobin and 15 Others, The Supreme Court of South Africa (Natal Provincial Division) Pietermaritzburg, South Africa

August 1985

Prepared by the Southern Africa Project of the Lawyers' Committee for Civil Rights Under Law. ------

TABLE OF CONTENTS

Part I: Background to the Treason Trial 1

Section 1: The New Constitution and the Detention of Leading Members of the United Democratic Front..... 1

Section 2: Bail Denied 14

Section 3: The Charge of Treason...... 24

(A) The Indictment...... 24

(B) Treason, Historically and in Law in South Africa 25

(i) The Situation Prior to 1961 25

(ii) 1961-1978 38

(iii) 1979-1985 ••.••••••••••0...... •...... 42

Part II: The United Democratic Front Treason Trial 52

Section 1: The Main Count - Treason...... 52

Section 2: The Alternate Charges 59

(A) Terrorism Under the Internal Security Act of 1982 59

(B) Terrorism Under the Terrorism Act of 1967 65

(D) Furtherance of the Objects of Communism 70 (E) Furtherance of the Objects of Communism and/or the ANC .. 71

Appendix A: Profile of Defendants

Appendix B: Organizational Profile - UDF and affiliates cited in the indictment -- Appendix C: Copy of the Freedom Charter In September, 1985, in the Supreme Court of South Africa (Natal Provincial Division) sixteen prominent black community and labor leaders will stand trial for treason. The accused are members of one of the most important opposition groups in the country, the United Democratic Front. The trial will take place in the context of the deepening political crisis in South Africa, which most recently has been manifested by the government's declaration of an indefinite State of Emergency in 36 magisterial districts. In the following. pages we have discussed the background to this trial and its important legal and historical dimensions. ******

Part I: Background to the Treason Trial

Section 1: The New Constitution and the Detention of Leading Members of the United Democratic Front The United Democratic Front (UDF) was launched as a national organization in August 1983 at one of the biggest political rallies seen since the era of mass, legal opposition politics in the 1950s. The UDF's primary aim was to coordinate opposition to the new constitution introduced by the ruling white Nationalist Party. The proposed new system of government simply entrenched apartheid by excluding the

1 participation of the 73 percent black (African) majority and giving only limited participation rights to the country's Indian and Coloured (mixed-race) population. A continued white monopolization of power was guaranteed through the ethnically separate, tricameral parliamentary structure and the nature of the new executive presidency. At the launching rally in August 1983 the unp representatives declared: We stand for the creation of a true democracy in which all South Africans will participate in the government of our country. We stand for a single, unf ragmented South Africa, a South Africa free of Bantustans and Group Areas• .•• we join hands as community, women's, students', religious, sporting and other organiza tions and trade unions to say no to apartheid. We say no to the Republic of South Africa Constitu tion Bill -- a Bill which will create yet another undemocratic constitution in the country of our birth. In the face of the final total exclusion of the majority from direct representation at national government level, the unp responded by spearheading a boycott of the tricameral parliamentary elections scheduled for August 22 and 28, 1984. Within a year of its formation the unp had won the support of more than 600 affiliated organizations of all races and in all parts of the country. Their tactics employed around the election issue were peaceful and open, and ultimately highly successful. The election results indicated an overwhelming rejection of the

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new constitution. Only 18 percent of the eligible Indian and Coloured voters went to the polls. Throughout the UOF-organized campaign against the elections police repression was constant. Activists were harassed and assaulted, pamphlets and petition forms were confiscated and canvassers arrested. UOF sponsored meetings in a number of areas were banned, and rallies were sometimes violently broken up by the police. On the election days themselves police used teargas and batons against demon- strators as well as journalists covering the event. On the eve of the elections the South African Security Police arrested leading members of the UOF, along with indi-

viduals from other or~anizations which had actively opposed the new constitution. Amongst those arrested were Mewa Ramgobin, George Sewpershad, M. J. Naidoo, Essop Jassat, Aubrey Mokoena, Archie Gumede, and Curtis Nkondo, all of whom are now facing trial for treason. The individuals detained on August 21 were detained initially under section 50 of the Internal Security Act, No. 74 of 1982. 1 Within 24 hours of their detention they

1Hereinafter referred to as the Internal Security Act (1982). This particular provision of the Act allows a police officer to arrest anyone without a warrant if he is of the opinion that that person's actions are contributing towards "the continuation of a state of public disturbance, disorder, riot or public violence" anywhere in the Republic. A person arrested under section 50 can be held incommunicado for 48 hours, following which he or she has to be released or redetained under a warrant in terms of section 50 (1) (b), which states that "the detention of a particular person will contribute towards the prevention of the resumption, at the

3 were served with six-month 'preventive detention' orders under the provisions of section 28 of the Internal Security Act. Section 28 permits the Minister of Law and Order to detain a person merely under suspicion that the person is likely to commit an act endangering the maintenance of law and order or is likely to promote such acts. 2 The Minister's Order delivered to each of the detained UDP leaders, stated simply that the person was detained pursuant to section 28(1) of the same place or at any other place in the Republic, of such a state of public disturbance, disorder, riot or public violence." 2section 28. Detention of certain persons in a prison in order to prevent commission of certain offences or endangering of security of State or of maintenance of law and order - (1) Notwithstanding anything to the contrary in any law or the common law contained, the Minister may - (a) if in his opinion there is reason to apprehend that a particular person will commit an offence referred to in section 54(1), (2) or (3); (b) if he is satisfied that a particular person engages in activities which endanger or are calculated to endanger the security of the State or the maintenance of law and order or that he propagates or promotes or is likely to propagate or promote such activities; or (c) if he has reason to suspect that a particular person who has been convicted of an offence specified in Schedule 2, engages or is likely to engage in activities which endanger or are calculated to endanger the security of the State or the maintenance of law and order, or propagates or promotes or is likely to propagate or promote such activities, by a written notice signed by him and addressed to a member of the Prisons Service, as defined in section 1 of the prisons Act, 1959 (Act No. 8 of 1959), who is in charge of a prison referred to in section 20(1) (a) of the said Act, direct that the said person be detained in that prison.

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Internal Security Act because the Minister believes "that the said person engages in activities which endanger the maintenance of law and order." In each case the Minister alleged that "by acts and utterances the said person did himself and in collaboration with other persons attempt to create a revolutionary climate in the Republic of South Africa thereby causing a situation endangering the maintenance of law and order." Unlike section 29 of the Internal Security Act which authorizes detention for interrogation for unlimited periods, section 28 detainees may only be held for periods specified in the Minister's notice. Nevertheless the Minister may in effect. extend the detention indefinitely following a pro forma review process. The review procedures are entirely internal, and the detainee is denied the right of legal representation before the review committee. One section 28 detainee, Abel Dube, was originally detained on April 21, 1982, and placed under section 28 on November 13, 1982 for a period of twelve months. This period was renewed for a further yea .3 In addition to the possibility of indefinite detention the detained activists were confronted with a permanent ban against any future involvement in political organizations. Under section 16 of the Internal Security Act the Director of Security Legislation is authorized to maintain a "Consolidated

3rn October 1984 Dube was released and banished for 3 years to the remote town of Messina in the northern Transvaal.

5 List" of individuals who, among other things, have been detained under the provisions of section 28. Under sections 18-23 of the Act a "listed" person faces the full range of

restrictions previously applied to alleged members of the banned south African Communist party under the Internal Security Act, No. 44 of 1950. Accordingly, a section 28 detainee once released is faced with a possible ban on his or her participation in any designated organization, or from entering particular areas, or from attending any specified gatherings, or from being quoted or published. The detention orders and their severe consequences were challenged in court. On September 7, 1984, an application was brought in the Supreme Court of South Africa (Natal Provincial Division) requesting that the court set aside the detention under section 28 of seven detainees in Natal. The applicants involved were Archie Gumede, George Sewpershad, M. J. Naidoo, Mewa -Ramgobin, Kader Hassim, Billy Nair and Sam Kikine. The application was made on the technical grounds that, contrary to the requirements of section 28 (3) (b) of the Internal Security Act, the Minister's order did not set forth the reasons for the detention; did not set forth the information upon which the Minister relied with any clarity, precision or completeness; and that a bald reliance upon "acts and utter ances" without any particularity was not information within the meaning of that word as contained in section 28 of the Act. In addition, the applicants contended that the Minis-

6 ter's order did not contain a statement to the effect that, in his opinion, more information could not be disclosed without detriment to the public interest. 4

In considering the application, Mr. Justice Law reviewed previous judgements relating to the proper role of the courts in a situation where Parliament had conferred on the Minister "almost autocratic powers". The conclusion drawn from that review was that the courts' sole concern lay with ensuring that any actions taken by the Minister complied strictly with the provisions of the relevant statutes. In this particular case, therefore, any detention order issued under section 28 (3) (a), unaccompanied by a notice in compliance with section 28 (3) (b) was accordingly not valid. Mr. Justice Law determined that the order issued by the Minister of Law and Order for the detention of the UDP leaders had not complied with section 28 (3) (b) in signif icant ways. The Minister failed to state the requisite information which had induced him to issue the notice or his reasons for withholding that information. The Court therefore ordered the.Minister to release the seven UDP leaders named in the application. S

4According to section 28(3) (b) of the Internal Security Act, a copy of the detention notice shall be accompanied by a written statement by the Minister setting forth the reasons for the detention of the person concerned and as much of the information which induced the Minister to issue the notice in question as can, in the opinion of the Minister, be disclosed without detriment to the pUblic interest. SIn a related matter, an application was brought in the Supreme Court of South Afr ica, (Wi twatersrand Local Division), regarding the issue of whether lawyer-client privilege

7 Following the release of the seven detainees under the jurisdiction of the Natal court on September 7, the Minister of Law and Order moved swiftly to counter the impact of the Court's decision. He issued new orders for the detention of the seven released men. The new notices contained one extended to section 28 detainees. Under secti6n 28(8) of the Internal Security Act, the detainee has the right to have his legal representative assist him in preparing representations to the Minister. Citing the Judgement in Mandela v. The Minister of Prisons, 1983"Mr. Justice Margo noted that an important element of the fundamental common law right of access to one's legal adviser, as a corollary of the right of access to the courts, was the right to hold such consultations privately and confidentially. While access of a legal representative permitted under section 28(8) is not connected with the right of access to the courts, communications between the detainee and his lawyer for the purpose of obtaining legal advice in respect of the detainee's liberty, involved the. right of confidentiality. Mr. Justice Margo argued that the Commissioner of Prisons' authority under Regulation 123 and section 94 of the Prisons Act of 1959 did not give him the power to impose complete prohibitions against visits by legal representatives to awaiting trial prisoners, nor to impose restrictions which deny the right of consultation conferred by section 28(8) of the Internal Security Act, or such ancillary rights as that of confidentiality thereby implied. He dismissed the argument of the Counsel for the Respondents that a person who is detained, because his activities are believed to endanger the State or the maintenance of law and order, should not be allowed to communicate in secret with his legal adviser. In the present case, Mr. Justice Margo concluded, "My duty ••. is simply to interpret the relevant statutory provisions and not to apply broad public policy considerations. If it is necessary or desirable to prevent confidential consultations between a detainee and his legal adviser, that is a matter for the legislature." Accordingly, in his judgement on September 15, 1984, Mr. Justice Margo decided in favor of the applicant, affirming the entitlement of section 28 detainees to confidential consultations with their lawyers.

8 additional sentence, that, with respect to the basis for the detentions "no, other information can [in the Minister's opinion] be disclosed without detriment to the public interest." Similar notices were served on the ten detainees still held in prison in Johannesburg. This occurred on September 9, hours before an urgent application for their release was brought before the Supreme Court of South Africa, (Witwatersrand Local Division). The application was based on the same grounds as that filed for the release of the Natal detainees and cited the judgement of Mr. Justice Law. 6 Despite the precedent set by the Natal Court several days earlier, the Supreme Court (Witwatersrand Local Division) found that the additional sentence added to the new detention orders was sufficient to meet the statutory requirements and cured the defects in the previous orders. The Court held that it was in the Minister's discretion to decide whether or not to disclose information and that the new detention orders were accordingly valid. The attorneys for the detainees were granted leave to appeal the Court's rUling. In the meantime the seven Natal detainees had gone underground immediately following Law's judgment and their release from prison, in the expectation of a counter move by the

6Nkondo and Seven Others v. The Minister of Law and-Order and Another. The Applicants involved were Curtis Nkondo, Muntu Myeza, Haroon Patel, Aubrey Mokoena, Jerry Tlhopane, Patrick Lekota, Essop Jassat, and R.A.M. Saloojee. Two other Transvaal detainees, Andries Mapetla and Moses Chikane, were not included in this application.

9 Minister. On September 4, five of the men -- Gumede, Sewper- shad, Naidoo, Ramgobin and Nair emerged seeking refuge in the British Consulate in Durban, Natal. They requested the British Government to give them sanctuary while they sought court action to test the validity of the new detention orders. They were joined by a sixth man, Paul David, with respect to whom a first detention order had been issued. On September 21, 1984, an application was brought in the Supreme Court of South Africa (Natal Provincial Division) on behalf of the Natal section 28 detainees. The application challenged the reissued detention orders on substantive grounds: that the Minister did not have sufficient reason to detain the activists under section 28. The application sought a decision on the merits, and asked for the Minister of Law and Order to give evidence regarding the alleged activities justifying the detention orders. The applicants contended that the Minister had failed to give his reasons for conclud ing that "other" information could not be disclosed without detriment to the public interest. At no stage prior or subsequent to the original detention of the applicants had the Minister given them an opportunity to answer his allegations that they had engaged in activities "endangering the mainte nance of law and order." In their application, the detainees asserted that the Minister of Law and Order had no specific grounds for their detention but rather that he had followed a policy of detain-

10 ing any person who was actively campaigning for a boycott of the elections under the new South African constitution. Furthermore, while the Minister was refusing to give information to the Court justifying the detention orders, he was at the same time making extra-judicial statements to the press concerning the alleged intentions of the persons detained whom he accused of "attempting to sow and promote a revolutionary climate in South Africa. "7 The applicants maintained that their views on the inevitability of violence because of the devisive nature of the new Constitution were a matter of public record. No reasonable person having access to any of this information could honestly have corne to the conclusion that any of the applicants themselves or "in collaboration with others were attempting to create a revolutionary climate in the Republic of South Africa thereby causing a situation endangering the maintenance of law and order. ,,8 In his judgement delivered in the case on October 8, the Acting Judge-President, Mr. Justice Van Heerden accepted that the Internal Security Act "vests the Minister with a discretion of a wide and drastic kind which in its exercise •.• must necessarily make a serious inroad upon the ordinary liberty of the subject." To achieve the object of preempting

7see for instance the Minister's remarks reported in the Sunday Tribune August 26, 1984 8Gumede and Others v. Minister of Law and Order, applica tion before the Supreme Court of South Africa (Natal Provincial Division), September 21, 1984. The case was heard by Justices van Heerden, Krick and Broom. 11 "any activity likely to endanger the security of the state or the maintenance of law and order,n he continued, nthe legislature has no doubt thought it advisable to vest the Minister with power to act in the public interest as soon as he is of the opinion or he is satisfied or has reason to suspect that certain conditions exist." In a unanimous judgement, the Court found that the Minister had stated the reason for the detentions within the meaning of the section 28 (3) (b) of the Act. It accepted that the Minister's refusal to provide further information was an appropriate exercise of the discretion that the Parliament had vested in the Minister. The Court was furthermore satisfied that there was no obliga- • tion upon the Minister to furnish reasons why he was of the view that the disclosing of further information would be detrimental to the public interest. There was no requirement under the Act for him to do so. The sole discretion to disclose or not to disclose such information was vested in the Minister by statute. The Court was also of the opinion that it could not comment on the reasonableness or otherwise of the Minister's conclusions that the Applicants had endangered the maintenance of law and order. So long as his decisions were made bona

~ and in strict accordance with the provisions of the statute, the Courts had no jurisdiction to interfere. n[T]he Act does not define activities which would endanger or might be calculated to endanger the security of the State or the maintenance of law and order. It would indeed have been impossible for it 12 to have done so. The Legislature instead has thought fit to leave it, notwithstanding anything to the contrary in any law or the common law contained, in the discretion of the Respondent to decide when conditions envisaged in section 28(3) existed. This he has done and he was fully entitled and justified, in the exercise of that discretion, to regard what he considered to be an attempt to create a revolutionary climate in the Republic of South Africa as endangering the maintenance of law and order." The Court concluded that the orders were valid and that "any arrest or detention of any of the applicants pursuant to such notices would be lawful and authorized by law."9 During this period the men who had sought refuge in the British Consulate, Archie Gumede, George Sewpershad, M.J. Naidoo, Mewa Ramgobin, Billy Nair and Paul David, had appealed to the governments of the United states and other western countries for assistance and sanctuary. Their requests were denied. On October 6 Sewpershad, Ramgobin and Naidoo left the British Consulate and were immediately arrested. Gumede, David and Nair did not leave the consulate until December 12, when, with the exception of Nair, they too were rearrested.

9Judgment in the Supreme Court of South Africa Natal Provincial Division, October 8, 1984, in Gumede and Five Others v. The Minister of Law and Order. Appeals are currently pending ~n behalf of the State against Mr. Justice Law's judgment of September 7, and on behalf of the applicants who had been detained against the judgments of Mr. Justice Nestadt and Mr. Justice van Heerden.

13 Section 2: Bail Denied. In the context of an increasing international focus upon the inequities of the South African detention system and pUblic protests in the United States about the detention without charge or trial of a large number of labor and community leaders,lO the Minister of Law and Order withdrew the preventative detention orders against Essop Jassat, Aubrey Mokoena, Curtis Nkondo, M. J. Naidoo, Mewa Ramgobin and George Sewpershad on December 10, 1984. They were immediately charged with· high treason and remanded in custody for trial. Two days later Archie Gumede and Paul David, who were arrested when they left the sanctuary of the British Consulate, were also charged with treason. • Other prominent members of the UDF were swept up in police raids on February 19, 1985. The security police searched the homes and offices of UDF members and affiliates, and confiscated documents and records. Other arrests were carried out later that month. By then eight more individuals had been charged with treason: The Rev. Frank Chikane,

lOIn November 1984, prominent American civil rights activists began a series of protests demonstrations outside the South African Embassy in Washington D.C. They were calling for major changes in official U.S. policy towards South Africa and for the release of labor and community leaders detained in South Africa. In early December President Ronald Reagan agreed to meet with the 1984 Nobel Peace Prize recipient, Bishop Desmont Tutu, who raised the same issues. The on-going embassy demonstrations and the Reagan-Tutu meeting were given prominent media attention.

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Thozamile Gqweta, Sam Kikine, Prof. Ismail Mohamed, Isaac Ngcobo, Sisa Njikelana, Cassim Saloojee and Albertina Sisulu. with respect to both the eight charged with treason in December and those arrested and charged in February, the Attorney General issued certificates ordering the court to deny them bail. l1 In so doing he acted pursuant to the authority granted him under section 30 of the Internal Security Act. According to this provision, Whenever any person has been arrested upon a charge of having committed any offence referred to in Schedule 3, the attorney-general may, if he considers it necessary in the interests of the security of the State or the maintenance of law and order, issue an order that such person shall not be released on bailor on warning as contemplated in the Criminal Procedure Act, No. 51 of 1977. (Section 30(1)) Schedule 3 offenses include treason and conspiracy, incitement or attempt to commit treason. 12 According to sections

11 Order to Prohibit Release on Bailor Warning In Terms of Section 30 of Act 74 of 1982 Whereas I, MICHAEL CHARLES IMBER, Attorney General for the Province of Natal consider it necessary in the interest of the security of the State or the maintenance of law and order, I hereby order in terms of section 30 of Act 74 of 1982, that

MAWALAL RAMGOB IN who has been arrested on a charge of having committed an offence referred to in Schedule 3 of Act 74 of 1982 shall not be released on bailor warning." (and similarly for the others). 120thers listed are sedition; contravention of the provi sions of section 13 (1) (1) (IV) of the Internal Securi ty Act, No. 74 of 1982; any offense referred to in section 54 or 55 of the same; conspiracy, incitement or attempt to commit any of 15 30(2) (a) and (b) no person shall be released on bailor on warning contrary to the provisions of an order issued under subsection (1). No court, judge or magistrate has the power to grant bail to a person arrested on a schedule 3 offense, if it is informed by the public prosecutor that the matter has been referred to the attorney-general with a view to the issuance of an order under subsection (1). Unless the attorney-general fails to issue an order within fourteen days of the prosecutor's announcement, or unless the attorney-gen eral were to expressly withdraw such an order, the provisions of section 30 remove from the courts jurisdiction over the granting of bail in relation to persons arrested for the scheduled offenses. The Attorney-General's intervention with respect to the granting of bail was not an unusual occurrence. Various provisions exist in South African law limiting the jurisdiction of the courts with respect to the granting of bail in both political and non-political cases. 13 However, with the above. These various offenses are discussed below with respect to the indictment delivered against the 16 charged with treason. 13under section 59 of the Criminal Procedure Act, No. 51 of 1977, the power of a senior police officer to release an accused person on bail does not extend to persons accused of serious crimes (including treason, sedition, murder, rape, arson, kidnapping and childstealing, referred to in Parts II and III of schedule 2 of the Criminal Procedure Act of 1977, and offenses referred to in the schedule of the Internal Security Act, No. 44 of 1950, as amended in 1976, namely sedition, treason, contraventions of the provisions of section 11 of the Internal Security Act, of sections 2 or 3 of the Terrorism Act, No. 83 of 1967, and of section 21 of the 16 respect to persons accused of political offenses, the departure from the general principle that the granting or refusal of bail is essentially the function of the jUdiciary has been far more drastic. The attorney-general was empowered, under a 1976 amend ment to the Internal security Act of 1950, to issue an order that a person arrested on a charge of having committed sedition, treason, sabotage, terrorism or certain offenses under the Internal Security Act not be released on bail before sentence has been passed or before he has been discharged. There were no time constraints within which the court must be

General Law Amendment Act, No. 76 of 1962). In non-political cases the attorney-general has the power under section 61(1) of the Criminal Procedure Act of 1977, (which replaced section 108 ~ of the Criminal Procedure Act, No. 56 of 1955, which had been inserted for the first time in that Act in 1961), to oblige a court to refuse bail where he informs the court that information is available to him (i) which, in his opinion, cannot be disclosed without prejudice to the public interest or the administra tion of justice; and (ii) which, in his opinion, shows that the release of the accused on bail is likely to affect the adminis tration of justice adversely or to constitute a threat to the safety of the public or the maintenance of public order. Under this section the attorney-general is empowered to act only with respect to offenses set out in Part III of Schedule 2 of the Act (including arson, murder, kidnapping, childsteal ing and robbery). Nevertheless, under this provision the power of the attorney-general to withhold bail was limited to a requirement that evidence had to be led against the accused within 90 days.

17 seized of the case, in contrast with non-political cases where the attorney-generalIs extraordinary power was at least constrained· by the requirement that the trial commence within

90 days.14 The provisions of the 1976 amendment were eventually incorporated as section 30 of the new consolidated Internal Security Act, No. 74 of 1982. That section was included in the new legislation at the recommendation of a government commission which argued that "abnormal circum stances" in which "the safety of the state itself was threatened" justified the retention of a provision which was acknowledged as "wrong in principle and indefensible."15 Despite the fact that this extraordinary limitation on judicial function in political cases has been a feature of South African law and practice for several decades, the attorneys for the UDF leaders decided to appeal against the Attorney-GeneralIs actions. In a general Memorandum prepared on December 18 for the Attorney-General, Advocate Ismail r.!a,h,omed, .S...C., for t-heeightmen then charged with treason, detailed the hardships posed by the denial of bail for the accused. Since they had been in detention from August 1984 and the trial itself was expected to last for about 18 months

14See preceding footnote regarding non-political cases and Dugard, South African Criminal Law and Procedure, vol. 4, 1977 edition, p. 76. l5The Report of the Commission of Inquiry into Security Legislation, which was established in 1979 and reported in February 1982. It was chaired by Mr. Justice Pieter Rabie and is usually referred to as the Rabie Report.

18 once it began in mid-1985, the accused would very likely be incarcerated for 2 1/2 years before the conclusion of the trial. Clearly, the Memorandum noted, this would be a breach of the presumption of innocence which shoUld operate with respect to the allegations against the accused. In addition to the great personal hardships resulting from this for each of the accused, the denial of bail would complicate the investigations by their lawyers with respect to allegations covering a three year period and concerning hundreds of meetings and speeches. The Memorandum drew attention to the fact that in a similar treason trial held from 1956 to 1960 bail had been granted. Finally, each of the accused submitted sworn affidavits containing personal particulars and a statement expressing an agreement to submit to stringent bail conditions. A similar memorandum was prepared in March 1985 on behalf of those who had been arrested and charged with treason in February. During March and April 1985, arguments were heard in the Supreme Court of South Africa (Natal Provincial Division) concerning the application on behalf of the accused challeng ing the Attorney-General's procedures in denying them bail. On April 24, 1985, in a unanimous jUdgment, the Natal Supreme Court ruled that the Attorney-General's certificate by which bail had been denied was not va1id. 16 In delivering

16Judgment in the Supreme Court of South Africa (Natal Provincial Division), in the matter between Mewa Ramgobin and Seven Others and the State. During March and April the 19 judgment Mr. Justice Friedman made a strong attack on executive interference in the courts and on the provisions of section 30 of the Internal Security Act. These sections, he argued, "constitute serious inroads into the traditional role of the courts. Why the legislature should have found it necessary thus to place in the hands of the Attorney-General a power which ought properly to repose in the courts is not clear." It was, furthermore, "a complete anathema that an Attorney-General should be • • • a judge in his own cause. He is not an independent officer; unlike the courts, he does not exercise his powers free of executive control.,,17 application with respect to the February eight was heard separately. l7As Judge Friedman pointed out this was expressly stated in section 3(5) of the Criminal Procedure Act: An attorney-general shall exercise his authority and perform his functions under this Act or under any other law subject to the control and directions of the Minister, who may reverse any decision arrived at by an attorney general and may himself in general or in any specific matter exercise any part of such authority and perform any of such functions. The timing of these comments was ironic. Five weeks earlier the Minister of Foreign Affairs, Mr.Roelof 'Pik' Botha,in an American television interview, denied that his government had had anything to do with the arrest of 16 of the leaders of the United Democratic Front or with the denial of bail to them. They were arrested, he said, "as a result of a decision by the attorney general, who is not a government official at all •••• They were arrested in terms of due process of law, in terms of the Criminal Procedure Act, which is very similar to the act or acts in your country and the Anglo-Saxon world •••• The attorney general, just as in the United States, when accused are brought to court, the state has the fullest right to oppose bail. And sometimes it is granted,

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Mr. Justice Friedman acknowledged that the parliamentary supremacy established by the South African Constitution renders his objections to these statutory provisions irrelevant. without an entrenched bill of rights against which the legality or constitutionality of acts of Parliament could be measured, the role of the courts is limited. The only relevant consideration was "simply that because of the inroads which section 30 makes into the liberty of the individual and because of the limitations it imposes upon the Courts, its provisions will be strictly interpreted in such a way as to limit its impact on those interferences as much as its language may reasonably permit." The power of the attorney general to issue an order under section 30(1) only arises "whenever any person has been arrested on a charge of having committed any offense referred to in schedule 3." In applying the strictest interpretation to the language of section 30 (1) Mr. Justice Friedman concluded that proof of a person's being arrested "upon a charge" of having committed an offense required more than a mere statement of a charge. It required, in effect, a statement of the grounds upon which the appropriate authority had decided to "charge" the individual with the offense for

sometimes it is not granted, and it is the decision of the court of law" (transcript, ABC Nightline interview with R.F.Botha and Bishop Desmond Tutu, March 18,1985). The State President, Mr. P.W. Botha, made similar claims in a letter to Senator Kennedy and 40 other members of Congress on February 27, 1985.

21 which he had been arrested. A mere statement of the charge, as on the warrants issued in December, did not constitute compliance with the provisions of section 30(1). Accordingly the Court ruled that there existed no formal barrier to the granting of bail in this case and that an application could proceed in the appropriate court. The decision was unprece dented. 18 On May 3, before the JUdge President of Natal Province, Mr. Justice Milne, the attorney-general for that province, Michael Imber, agreed to withdraw the orders issued in respect of each of the accused under section 30(1) of the Internal Security Act. The judge concurred with Mr. Justice Friedman's remarks on the provisions of section 30, adding when it is the courts which decide on the major question of innocence or guilt and of sentence, I cannot understand why it has been decided that in certain circumstances the courts must be precluded from deciding questions of bail. The courts exist for these purposes. It is their function and not the function of the executive•••. I wholly fail to see the purpose or necessity for this legisla tive curtailment of ancient and fundamental rights, nor can I see any occasion under which its use could be justified. I venture to suggest that serious consideration should be given to its repeal. The judge then proceeded to grant bail to the sixteen defendants on the terms agreed upon by the Attorney General and Counsel for the accused. Bail for all sixteen defendants

l8There is a parallel here, both in style and effect, with the judgment of Mr. Justice Law on the validity of the section 28 orders in the Natal Supreme Court on September 7, 1984.

22 totalled R170,000 (approximately $85,000 U.S.). The defendants are required to report twice daily at specified police stations; refrain from leaving their specified magisterial district without the written permission of the Attorney General; surrender any passport or travel documents; and refrain from leaving his or her place of residence between the hours of 9:00 p.m. and 6:00 a.m. In addition the defendants must not attend or address any gathering of any organization mentioned in the indictment or that of any affiliated organization. It is possible, perhaps, to see the jUdgements delivered on April 24 and May 3 as representing the first signs of a reaction by the South African jUdiciary ~gainst the wide powers of the executive to bypass the courts in security cases. 19 Nevertheless, even though the State failed to bar the release of the accused on bail, it at least managed to extract conditions governing the release of the defendants which enabled the State to,in effect, politically immobilize sixteen key opponents of apartheid for the duration of what promises to be a very long trial.

19See the comments reported in Alistair Spark's article in The Washington Post, May 4, 1985.

23 Section 3: The Charge of Treason (A) The Indictment Despite the long period of incarceration and the extremely grave nature of the charges against the UDF activists, the prosecutor did not deliver an indictment against them until April 25, 1985, after eight months in detention for at least eight of the accused. On that day, in the Durban Magistrate's Court, the prosecutor presented a three volume, 587-page indictment detailing the State's allegation that -the defendants had over the past four years acted to further the aim of a number of banned organizations to "overthrow the State." They were accordingly guilty of high treason, an offense which carries a possible death penalty. As alternates to the main count of common law treason, the defendants were charged with a number of statutory offenses, namely:

(1) contravention of section ~~(l) of the Internal Security Act (Terrorism) ~ (2) contravention of section 2(1) (a) of the Terrorism Act of 1967 ~larticipation in Terroristic Activities)~

20 Read with sections 1, 4, 54(6), 54(7), 54(8) 64, 67, 68, 69 and 73 of the Internal Security Act (1982). 2lRead with sections 1, 2(2), 2(3), 2(4), 4, 5 and 8 of the Terrorism Act, No. 83 of 1967 (only with respect to Nkondo, Gumede, David, Gqweta, Njikelana, Kikine, Ngcobo).

24 (3) contravention of section 13 (1) (a) (V) of the Internal Security Act (Furtherance of the Objects of an Unlawful Organization);22 (4) contravention of section 55 of the Internal Security Act (Furtherance of the Objects of Communism);23 and (5) contravention of section 11 (a) alternatively 11(b) of the Internal Security Act, No. 44 of 1950 (Furtherance of the Objects of Communism and/or the A. N. C. ) .24

B) Treason. Historically and in Law in South Africa (i) The Situation Prior to 1961

The South Af r ican law of treason is der i ved primarily from Roman-Dutch law and to a lesser extent from English common law. The definition of the crime of treason in the South African context has never been a precise one. Neverthe- less, authorities appear to have been able to agree on one aspect of the crime; that the essential element of an act of treason is 'hostile intent.' This element alone distinguishes treason from lesser common law crimes such as sedition and

22 Read with sections 1, 4, 56 (1) (a), 68, 69, 73 of the Internal Security Act (1982). 23 Read with sections 1, 68, 69 and 73 of the Internal Security Act (1982) (only with respect to Ramgobin, Sewpershad, Naidoo, Jassat, David and Saloojee). 24Read with sections 1, 2, 11 and 12 of the Internal Security Act (1950), and with sections 1 and 2 of Act no. 34 of 1960, and with Proclamation R119 of 8 April 1960, and with section 22 of Act 93 of 1963 (only with respect to Ramgobin, Sewpershad, Naidoo, Jassat, David, Gqweta, Njikelana, Kikine and Ngcobo).

25 public violence. 25 Hunt, in his 1970 review of the Roman-Dutch authorities and South African case law, attempted a comprehensive definition of treason and its essential elements: High treason consists in any overt act unlawfully committed by a person owing allegiance to a state possessing majestas who intends to impair that majestas by overthrowing or coercing the Government of that State. 26 In this context the "overt act" is nothing more than a

'manifestation of the hostile intent. I Accordingly it can encompass acts of collaboration with an external enemy, the organizing of an armed insurrection against organs of the state in peacetime, or merely writing or speaking words. An incitement or conspiracy to commit treason likewise constitutes an overt act of treason. And preparations to carry out an overt act are in themselves treason. 27 With respect to written or spoken words being potentially treasonous acts, Gardiner and Lansdown were of the opinion that "where the conduct complained of has consisted of mere

25Gardiner and Lansdown, South African Criminal Law and Procedure (6th edition, 1957), Vol. 2, p. 992; Hunt, supra (Cape Town, 1970), vol. 2, pp 2-13; R. v. yiljoen, 1923 A.D. 90 at 91, 95. 26Hunt, supra, p. 13. 27supra, p. 14; R. v. Henning, 1943 S.A. 172 (A.D.) at 173-5; R. v. Leibbrandt, 1944 S.A. 253 (A.D.) at 261-262; R. v. Ma rdon, 1 947 (2) S• A. 768 (Sp. Ct .) a t 769, 772; R. v. Holm, R. v. Pienaar, 1948(1) S.A. 925 (A.D.) at 928; R. v. Strauss, 1948(1) S.A. 934 (A.D.) at 936-937; R. y. Neumann, 1949(3) S.A. 1238 (Sp. ct.) at 1239-1241; R. v, Erasmus 1923 S.A. 73 (A.D.) at 77-82; R. v. Viljoen (supra), at 91-92. 26 words, spoken or written, not constituting a conspiracy, or an incitement of others to treason,or an act of counselor assistance to the enemy, the accused cannot at common law be convicted of high treason in respect of it.,,28 HUnt more pointedly, emphasizes the matter of intent, noting that "for a man merely to put on paper thoughts which are on his mind or to express (without incitement or conspiracy) hostile senti- ments, will not constitute treason, but the reason for this is not that there is no overt act: it is because there is no 'hostile intent'. He does not write or speak in furtherance of an intent to overthrow or coerce the Govern ment".29 What is crucial, apparently, in all of these possible cases, is that the person has the requisite intention with respect to the State. The person, in Hunt's view, must intend to impair the authority of the state by either overthrowing it or coercing it in some way. The means employed may involve direct force, but it is not a necessary element in any act of treason. Other "unlawful but passive means of coercion" can be involved. 30 Nor is the question of motivation of any

28supra,p.997. In R v Hennig (supra) ,at 181, the original conviction was overturned on procedural grounds and not because the accusedos act of writing a letter to the enemy of the Crown (Germany) lay outside the scope of potential treasonous overt acts. 29supra, p.16 30Hunt, supra, pp. 24-28. Judgments in a number of cases have emphasized the key importance of "hostile intent against the State" in securing a conviction for treason (see, for 27 relevance. Intention has to be distinguished from the surrounding motivation, which may have relevance only as a mitigating factor in the sentencing of an accused. This point is made by schreiner, J.: "Treason may be committed and the hostile intent be entertained with a view to achieving some further purpose. The ultimate goal may be the achieve ment of some solid or economic advantage for a portion or even for the whole of the community ••• it may be the fulfilment of personal ambition or the wreaking of personal hatred. None of these ultimate motives is relevant to the enquiry whether treason has been committed or not. Whatever the factors are that induce a citizen to entertain an intention to help the enemy or weaken the effort against the enemy, if he acts in order to carry out that intention he commits an act of treason."3 In addition to the requisite intention, Hunt stresses that it must be directed towards a state which possesses maj estas. [Only] a State which has the full and exclusive right to make laws for its subjects and inhabitants and to enforce these laws, possesses internal majestas in relation to its subjects and inhabitants. It is by virtue of this majestas that

instance, R. v. Erasmus (supra), at 79; R. v. Leibbrandt (supra), at 279-380). Hunt stresses that while the means do not have to invol ve force they must be "unlawful," for otherwise "acts directed at the amendment of the constitution, the replacement of the Government or the Head of State, or the adoption or abandonment of policies or legislation by lawful, constitutional means" would be treasonous (supra, p. 19). This point is of considerable interest in view of the extreme narrowing, through statutory and regulatory measures since the 1960s, of the range of means considered lawful for bringing about political change in South Africa.

3lIn R. v. Leibbrandt (supra), at 281; and similarly where no external enemy is involved (R. v. Erasmus (supra), at 75, 79-82).

28 it compels obedience to ~ts laws and respect for its political authority. 2 Furthermore, only a person who by birth or naturalization owes allegiance to the State can commit treason in relation to

~'t.33 Finally, the existence of this requisite intent can be proven by direct evidence or inferred "from the acts and expressions of the accused and from the surrounding circum stances." The onus rests with the prosecution to prove that the overt act committed by the accused was done with 'hostile intent.' There is a presumption that a person intends the natural and probable consequence of his actions. Hence the inference of hostile intent can be drawn from the effects of actions of the accused when those effects were foreseeable. 34 In the period prior to 1956, treason cases arose in the context of war or armed rebellion. The alleged overt acts included: collaboration with an external enemy of the State, such as in the trials of Leibbrandt and others in the late 1940s for collusion with Nazi Germany; or collaboration with armed rebels against the State,as in the trials of the

32 Hunt, supra, p. 23. He adds: "it is, of course, axio- matic that the Republic of South Africa possess majestas, and that treason can be committed against that State." In support of this contention Hunt cites two cases from the 1940s. 33Hunt, supra, pp. 20-21. As the jUdgment in R. v. Neumann (supra, at 1256-1265) makes clear, allegiance is also owed the State by a permanently resident alien. 34 R. v. Leibbrandt (supra), at 282-284; R. v. Erasmus (supra), at 935; R. v. Mardon (supra), at 776; Gardiner and Lansdown, supra, p. 995. 29 Afrikaner rebels for supporting the anti-British cause during the Anglo-Boer war (1899-1902), and the trial of Zulu Chief Dinizulu in 1908-1909 on 23 counts of treason arising out of his alleged complicity in the Zulu rebellion of 1906; or armed rebellion against the State, such as in the 1915 trial following the rebellion of Generals de wet and Beyers, and in the trials following the 1922 insurrection by white goldminers in the Transvaal prov ince. 35 The nature of these trials suggest that the south African State regarded as tr'easonable only those overt acts which involved some form of violence against the state or active collaboration with an external enemy during periods of war. This was not the case with the watershed 1956-1961 "Treason Trial." That famous trial was the first treason case to occur after the rise to power of the Afrikaner Nationalist Party in 1948. 36

35Hunt,supra,p.12; John Dugard, Human Rights and the south'African Legal Order (Princeton, NJ, 1978) ,pp.209-211 36 The Afrikaner Nationalist Party (NP) won the 1948 elec tions partly on the basis of its hard-line apartheid policies. Within a few years the government had moved to implement the new social order with such measures as the Group Areas Act (1950), the Immorality Amendment Act (1950), the population Registration Act (1950), the Bantu Authorities Act (1951), the Reservation of Separate Amenities Act (1953), and the Bantu Education Act (1953), all of which were intended to produce a totally segregated society and maintain the political and economic dominance of the white minority. (South Africa: Time Running Out, The Report of the Study Commission on u.s. policy Towards Southern Africa, (U. Cal. Press, Berkeley, 1981), pp. 48-66, 117-119; Davies, The Struggle for South Africa, pp. 20-26.)

30 The 1956 treason trial came in the wake of a non-violent campaign against the apartheid policies of the -new Nationalist party government led by a coalition of organizations compris- ing what came to be known as the "Congress Alliance": the African National Congress (ANC), South African Congress of Trade Unions (SACTU), the South African Indian Congress (SAIC), the Congress of Democrats, and the South African Coloured People's Organization. In December 1956, 156 members of these organizations were arrested. Following a lengthy preparatory examination,3? charges against 65 people were dropped. The remaining 91 were put on trial for high treason in August 1958. The indictment was withdrawn by the prosecution in October and a new one issued against 30 of the accused in 1959. Later that year the remaining 61 accused were again indicted, but the indictment was quashed. The trial of the 30 resumed in August 1959. Despite the State of Emergency declared in the wake of the Sharpeville shooting in March 1960,38 the trial continued throughout that year. Finally,

3?prior to 1962 South African law mandated that a preliminary inquiry, known as a preparatory examination, into the gUilt of the accused be held before a magistrate prior to a Supreme Court trial.' 380n March 21, 1960, a large crowd of Africans gathered outside a police station in the township of Sharpeville south of Johannesburg to stage a demonstration against the law mandating that Africans must carry passes. Although this demonstration had been part of an ongoing non-violent campaign against apartheid laws, white police opened fire on the unarmed crowd, killing sixty-nine men, women and children. Most of them were shot in the back (South Africa: Time Running Out, p. 173).

31 in March 1961 the Special Criminal Court in Pretoria unanimously acquitted the accused. 39 In the initial 1958 indictment the Crown alleged that the accused were gUilty of high treason in that they, in their individual capacities or as members of specific organizations, during the period October 1, 1952 to December 13, 1956, with hostile intent, acting in concert and with common purpose, inter alia, disturbed the independence or the security of the State, each accused committing certain hostile and overt acts against the State. During the specified period the accused, it was alleged, conspired with each other and with others not indicted to subvert the State and/or make active preparation for a violent revolution against the State. 40

39John Dugard, Human Rights and the South AFrican Legal Order, pp. 213-214; Thomas Karis, "The South African Treason Trial," Political Science Ouarterly (vol. 76, no. 2, June 1961), pp. 223-226; Gerald Gardiner "The South African Treason Trial," Journal of the International Commission of Jurists (vol. 1, no. 1, Autumn 1957), p. 51. 40 R• v. Adams and Others, 1959(1) S.A. 646 (Sp. ct.), at 649. In part B of the indictment it was alleged that the conspirary had six aims: (a) to overthrow the State, and/or (b) to make active preparation for a violent revolution against the State, and/or (c) to disturb, impair, or endanger the existence of the State; and/or (d) hinder, hamper or coerce the State, and/or (e) oppose and resist the authority of the State and in particular the 32 The alleged objects of this conspiracy were to be attained by, among other things, the organizing of a gathering known as the Congress of the People for the adoption of the

Freedom Charter;41 the organizing of a special militant corps of Freedom Volunteers; instigating each other and others to make use of extra-parliamentary, unconstitutional and illegal methods, including the use of violence; organizing various campaigns against existing laws; promoting feelings of discontent or hostility between the various races of the Union; advocating the adoption of a Marxist-Leninist doctrine in th"e Union and the necessity of establ ishing a Communist state, and advocating the establishment, by illegal and unconstitutional means, of a state intended to replace the present state and by inciting the population of the Union to take part in and support by mass action those activities. 42 The overt acts alleged by the prosecution in furtherance of the conspiracy and its hostile intentions consisted primarily of the accuseds' attending and addressing certain meetings; making or associating themselves with speeches and

power of the state to make and enforce laws, and/or (f) establishing a Communist state or some other state in the place of the existing State. (idem, p. 658). 41 see note 82 infra and a copy of the Charter in Appendix C. 42 R• v. Adams (supra), at 650.

33 resolutions allegedly calculated to incite people to engage in the activities necessary to achieve the goals of the con spiracy; writing, publishing and distributing books, articles, pamphlets, etc. calculated to incite people in the same manner; and attending a gathering known as the Congress of the People on the 25th and 26th of June, 1955, for the adoption of the Freedom Charter. No single act of violence was alleged against the accused. 43 The Defense moved to quash the indictment on several grounds. One concerned the nature of the purported conspiracy. The Defense argued that no fact was alleged which showed that the accused had contracted with one another directly or indirectly. The Defense also challenged the Prosecution's allegation of a single conspiracy whose terms remained constant and static throughout the period covered by the indictment. Some of the accused were charged with conspiring with persons who, according to the further

~articulars, were not in the conspiracy until well after the Congress of the People gathering in June 1955, the holding of which was claimed as one of the aims of the conspiracy. Some of the laws specified in the indictment as the targets of organized campaigns did not even exist in 1952, when the conspiracy allegedly began. In response to this the Court supported the contention of the Prosecution that "as long as

43 R• v. Adams (supra), at 651, 665; L. J. Blom-Cooper, "The South African Treason Trial: R. v. Adams and Others," International and Comparative Law Ouarterly (1959, vol. 8), p. 66. 34 the conspiracy remains constant in regard to its ~, and as long as the aims are unlawful, the particular or varying means adopted by anyone of the conspirators are attributable to the others, provided that they were employed for the purposes of achieving the so-called 'grand object. ,"44 The Court rejected the argument of the Defense that an accused could not be criminally liable for offenses committed by his co-accused prior to his having joined the conspiracy, and that he could only be tried for the commission of his own overt acts. The Court accepted that the indictment had brought "all the accused to Court on one charge of high treason, admittedly based on a series of overt acts which ••• , nevertheless, constituted a 'course of conduct' directed towards the achievement, and in pursuance of but one criminal design, namely to overthrow the State." The exact timing of the participation by anyone of the accused was irrelevant to the proof of the main charge. 45 Although the Court sustained the main part of the indictment, the Prosecution, nonethless, withdrew it in October, 1958. In 1959, the trial resumed under a different indictment against thirty defendants. 46 One of the main issues in this

44 R. v. Adams (supra), at 660-661. 45 R• v. Adams (supra), at 666-668. 46 The Prosecution had withdrawn the first indictment in October 1958 following the quashing of the first alternate charge under the Suppression of Communism Act (1950), (Blom-Cooper, supra, p. 59).

35 second trial concerned the question of violence and the nature of the overt acts upon which the prosecution was relying as proof of hostile intent. The Defense argued that where they consisted of spoken or written words only, "such words in the absence of an external enemy should at the very least amount to an incitement to violence or sedition." The court ruled against this contention, "provided the words, in the circum stances, manifest the hostile intent and provided they tend towards the accomplishment of the criminal design. "47 This, rega'rdless of the fact, as the Court had acknowledged earlier, that many of the speeches or portions thereof "might be considered to be innocuous."48 The Prosecution's main strategy was focused upon proving that the accused intended to act violently, a significant departure from the Prosecution's approach in the first trial the previous year. The accused must have known, argued the Chief Prosecutor, that, in order to achieve the aims of the Freedom Charter, they would have to be on a violent collision course with the State. The Congress Alliance, as the "vanguard" of the "Na tional Liberatory Movement" in South Africa, was part of an international communist conspiracy "pledged to overthrow by violence all governments in non-communist countries where sections of the population did not have equal political and economic rights." The nature of

47Karis, "The South African Treason Trial," p. 222. 48 R• v. Adams (supra), at 656. 36 communism, so the Prosecutor's argument went, thus illuminated the conspirators' intentions. The defendants' spoken and written words, their attendance at meetings, their possession of documents and so forth, however seemingly innocent, when seen in this broader context were clearly enacted in further ance of the treasonable conspiracy.49 All of the defendants were acquitted in March 1961 when the Court found it impossible to conclude that the ANC and the Congress Alliance had "acquired or adopted a policy to overthrow the State by violence. "50 While the jUdgment represented a failure on the part of the government to curb extra-parliamentary dissent through the use of the treason charge, the long drawn-out and enormously expensive trial did have other important political consequences. As one observer of the trial, Professor Thomas Karis, noted, throughout its duration the proceedings had "immobilized or preoccupied many leaders of the African National Congress" and other organizations. It drained the energies and resources of individuals and groups who acted to assist their defense. And it posed the potentially intimidating question: did the "breadth of the Prosecution's argument leave open any extra-parliamentary outlets for free speech or agitation?" The area between legal, constitutional methods and treason could be easily

49Reported and discussed in Karis, "The South African Treason Trial," pp. 224-230. 50IQig, pp. 239-240.

37 constricted, as Karis points out, under the historic "intent and tendency" test of what constitutes an act of treason. 51

( i i) 1961 - 1978 From the early 1960s through to 1979 the accused in major political trials were charged, not with common-law treason but rather with statutory offenses, primarily under the Suppres sion of Communism Act (1950), the Unlawful Organisations Act (1960), the Sabotage Act (1962), the Terrorism Act (1967), and the Internal ~ecutity Act in its 1976-amended form. 52 Most of the statutory offenses overlapped with treason, sedition, public violence and other common-law crimes, but the statutes also created many offenses sui generis. In the case of the now repealed Terrorism Act of 1967 the offenses were explicitly equated to high treason (Sec. 2(1) ).53 However these statutes were not merely a codification of common-law. The new statutory offenses were "widely, vaguely, and

51Karis, "The South African Treason Trial," pp. 232-240; Dugard, Human Rights and the South African Legal Order, p. 214; Gardiner, "The South African Treason Trial," p. 51. 52John Dugard noted in 1977 that this absence of common law treason charges was occurring despite the fact that there had been more political trials during the previous fifteen years than at any other stage of South Africa's history (in Human Rights and the South African Legal Order, p.267) 53 Hunt, South African Criminal Law and Procedure (1970), pp. 34-37.

38 unclearly phrased ••• [and offended] the certainty-of-law requirement inherent in the notion of legality."54 At the same time, important changes were being made to pre-trial and trial procedures which were to have a serious impact on the substantive rights of the accused. Perhaps one of the most crucial changes concerned the question of the burden of proof. In common-law treason, the Prosecution has the burden of proving the main element in the crime, that of hostile intent. In contrast, under the Terrorism Act the onus of proof was shifted to the accused. Under the provisions of that statute a person commits the capital crime of "participation in terroristic activities" if, "with intent to endanger the maintenance of law and order in the Republic, he commits any act in the Republic or elsewhere." An intention to endanger the maintenance of law and• order is presumed if the act proved to have been committed by the accused had or was likely to have had anyone of a number of specified results in the Republic. The list was sweeping and included:

(b) to promote, by intimidation, the achievement of any object; (c) to cause or promote general dislocation, disturbance or disorder;

54nugard, idem, p. 267. As an example of the phraseol ogy, see the discussion of the alternate charges against the treason trial defendants, pp. 59-73 below.

39 (d) to cripple or prejudice any industry or under taking or industries or undertakings generally or the production or distribution of commodities or foodstuffs at any place; (e) to cause, encourage or further an insurrec tion or forcible resistance to the Government or the Administration of the territory; (f) to further or encourage the achievement of any political aim, including the bringing about of any social or economic change, by violence or forcible means or by the intervention of or in accordance with the direction or under the guidance of or in cooperation with or with the assistance of any foreign government or any foreign or international body or institution;

(1) to embarrass the administration of the affairs of the state. (Sec • 2 ( 2) ). In order to establish his innocence, the accused person had to prove beyond a reasonable doubt that he did not intend any of the above results when he committed the proven act. Only in this way, as Dugard points out, could he rebut the presumption that his act was committed with intent to endanger the maintenance of law and order. 55 In shifting the burden of proof so dramatically onto the accused the state had reduced the chances of embarrassing acquittals such as occurred in the 1958-1961 treason trial. Further procedural changes facilitated the State's position. Treason cases had been tried in special criminal courts constituted under the Criminal Procedure Act and involved three judges who were required to reach a majority

55 Idem, p. 263 •.

40 verdict. Since 1961 such special courts have not been established. Political cases are now tried by a single judge sitting alone, or with assessors, and since 1977, in limited cases, by regional magistrates. prior to 1962, a preliminary inquiry into the guilt of the accused before a magistrate, known as a preparatory examination, preceded a supreme court trial. After 1962 this was largely dispensed with in political cases, and, following the 1977 amendment to the Criminal Procedure Act, only occurred if requested by the Attorney General. 56 These trends, combined with the drastic curtailment of procedural rights resulting from the system of incommunicado detention without charge and the expanded powers of the • attorney general to deny bail to persons charged with political offenses, have effectively transformed the South African pre-trial process into an "inquisitorial system."57 The sweeping statutory definitions of "political crimes"

56Dugard, idem, pp. 233-34, 258. 57Dugard, idem, pp. 269-273. Sec. 17 of the General Law Amendment Act No. 37 of 1963 permitted 90-day detention without right of access to a legal adviser. In 1965 this was extended to 180 days in an amendment to the Criminal Procedure Act (No. 96 of 1965). The 1967 Terrorism Act permitted indefinite, incommunicado detention for the purposes of interrogation. Torture, and in some cases the deaths of detainees, has become an ugly and persistent feature of this "drastic process." (See, for instance, the annual reports of Amnesty International and the u.S. Department of State annual Country Reports on Human Rights practices). The situation with respect to the denial of bail has been discussed above.

41 and the limited role of the judiciary, increased further the possibilities of securing convictions.

(iii) 1979 - 1985 A new trend began to emerge in 1979. In that year 12 alleged members of the banned African National congress (ANC) were convicted of high treason in the Natal Supreme Court. From 1980 through the end of 1983, 37 people were tried for treason in 15 separate trials. In 1983, of the 42 persons detained under section 29 of the Internal security Act and subsequently charged, 16 were convicted, nine of them for high treason. Currently in 1985, 52 people are standing trial for treason. One common thread running through many of these recent trials has been the State's allegation that membership in or support for the ANC amounts to treason. Typical was the construction given in the 1982 case, State v. Mogoerane. Mosololi & Motaung, heard in the Supreme Court (Transvaal Provincial Division). In the indictment the Attorney General alleged that the aim of the ANC is to overthrow and/or endanger the lawful government of the Republic of South Africa by force and/or threats of force. In carrying out these aims, so it was alleged, the ANC, its members and active supporters had coopted people in the Republic to support and/or join the ANC; had recruited and organized people in the Republic to undergo military training

42 --~------

and had distributed weapons to persons to use in warfare, sabotage and the undermining of the authority of the Republic. It was then further alleged that the accused at all relevant times, i.e., 1976-1981, were members of and/or active supporters of the ANC and had conspired with all other of its members and active supporters to further the unlawful aims of the ANC, and had committed specific acts in furtherance of this conspiracy. Accordingly they were guilty of the crime of high treason. The overt acts alleged against them included under- going military training in ANC camps outside the country, establishing underground bases inside South Africa, and executing armed attacks on three police stations which resulted in the death of a policemen. They were convicted of treason and 20 alternative charges. They were sentenced to death and executed. 58 The trials involving alleged ANC members accused of committing various acts of sabotage constitute the most numerous and important category of the recent treason cases. 59

58 south African Institute of Race Relations, Survey of Race Relations in South Africa, 1982, pp. 236-237. The alternate charges were mainly murder, attempted murder, and contraventions of the Terrorism Act. 59Including S. v. Mange, 1980(4) S.A., 613 (A.D.) at 615-617; S. v. Tsotsobe & Others (Pretoria Supreme Court, 1981); S. y. Lubisi & Others, 1982(3) S.A., 113 (A.D.) at 113-122; S. v. Mokoena (Pretoria Supreme Court, 1982); S. v. Molotsi & Molefe (1983); S. v. Skweyiya (Natal Supreme Court, pietermaritzburg, 1983); S. v. Mahlobo & Others (Natal Supreme Court, 1984); and S. v. Mhlanzi & Others (Transvaal Supreme Court, Witwatersrand Local Division, 1984) (sources- 43 The defendants in these trials usually have been young men who apparently fled South Africa after the 1976 student uprisings and allegedly underwent military training in foreign countries, returning subsequently to carry out or attempt to carry out acts of sabotage against government buildings and key installations. The overt acts alleged sometimes included armed attacks on, for instance, police stations, resulting in the injury or death of policemen. The defendants were placed on trial often after lengthy periods of detention during which they had been subjected to various forms of physical and psychological assault to force them to admit to specific acts of terrorisrn. 60 While the defendants in these cases were indicted for statutory offenses for allegedly committing acts involving violence, the gravamen of the charge of treason against them appears to have arisen primarily from the accuseds' alleged membership in and conspiracy with the ANC. The case of State y Barbara Hogan, heard in 1982 in the Supreme Court (Witwatersrand Local Division), illustrates the manner in which the State has sought to establish membership in the ANC alone as amounting to participation in a treasonable conspir-

Southern Africa project files; Survey of Race Relations, 1981, p. 83; 1983, p. 560; Rand Daily Mail, October 19, 1982). 60 As for instance in the case of S. v. Mogoerane & Others where the accused contested the validity of the confessions made to the police on the basis that they had been made as a result of assault and torture by electric shock while they were being held by the Security Police (Survey of Race Relations, 1982, p. 237). 44 acy. In commenting on this trial, the Johannesburg Financial Mail observed: evidently the legal approach of the Attorney-General's office has shifted to moulding common law precedent rather than utilising the numerous statutory tools available. In the last three years charges of treason have increased in number against people who have undergone military training and who have been infiltrated back to commit sabotage and other acts of violence. [The Hogan trial] is the first charge of treason where there was no question of violent acts involved. 61 In the indictment Hogan was accused of being a member of the ANC and of associating herself with its unlawful aim of overthrowing the government "by means of violence or means which envisage violence and by other means, including the crippling or prejudicing of industries or undertakings generally in the Republic." Accordingly, the state claimed, the accused was guilty of high treason. In amplification of this charge the indictment alleged that during the period 1977 to 1981 the accused unlawfully and with hostile intent against the State conspired with the ANC, its members and supporters to further the aims of the ANC, and committed or attempted to commit various acts in furtherance of that conspiracy. The overt acts alleged included joining the ANC in 1977, agreeing to convey information on labor matters to the ANC, contacting exiled ANC officials, and recruiting new members for the ANC. In addition it was alleged that the accused, in furtherance of the ANC aims, had negotiated

61Financial Mail, October 19, 1982.

45 with the South African Allied Workers' Union (SAAWU) to establish an Unemployed Workers' Union had worked as a volunteer with an unemployment bureau for Blacks, and in various capacities with other similar organizations. Barbara Hogan entered a plea of not guilty to the main count of high treason and to the first alternate count of participating in terroristic activities (under the Terrorism Act of 1967), but pleaded guilty to two charges under the Internal Security Act (1950) relating to her admitted membership in a banned organization. The State refused to accept that her membership in the ANC amounted to a mere technical breach of statutory law, rather than common-law treason. As Judge Van Dyk noted in his judgment on October 20, it is "clear that the State .inter alia relies upon the acts of Hogan in joining the ANC ••• in 1977 and thereafter working for the ANC from 1977 to 1981 to prove the conspiracy to commit treason, alternatively terrorism, and that the acts ••• are alleged to be treasonable, alternatively terroristic in nature, because of the accused's association with the ANC and the fact that they were allegedly committed in furtherance of its aims and objects."62 Barbara Hogan was found guilty of treason and was sentenced to ten years imprisonment. In reaching his conclusion Judge Van Dyk had dismissed the arguments of Advocate George Bizos on behalf of the accused regarding the

62Judgment in S. v. Hogan, p. 18.

46 essentially non-violent nature of her actions. Van Dyk considered that to be irrelevant, asserting that the overt acts necessary for treason can manifest themselves "in perfectly legal behaviour." They are treasonous if performed with the ultimate aim of assisting the enemy Or weakening the efforts against the enemy.63 Primarily on the basis of the testimony of a police spy, Cpt. Craig Williamson, Judge van , Dyk concluded that the ANC regarded itself as being at war with the Republic of South Africa on all fronts, that every thing the ANC did was aimed at the violent overthrow of the State, and that the encouragement of non-violent political forms of struggle, as for instance in the organizing of unemployed workers, was simply a tactic used to achieve the overall aim of overthrowing the State by violence. 64 Accord- ingly, he argued, "by joining the ANC, and thereafter, performing the specific acts which have been proved to have been performed by her, [Hogan] signified by her conduct her agreement with all the aims of the organization and has therefore made herself guilty of a conspiracy to commit treason. ,,65 There appear to have been a variety of reasons for the recent resurgence in the State's use of the common law treason charge against political opponents. One purely

63Judgment in S. v. Hogan, p. 22. 64 Idem , pp. 22-31. 65 Idem , p. 40.

47 technical reason concerns the simplification of the proce dures for proof in criminal cases, including treason, as a result of an amendment to the Criminal Procedure Act in 1977. Prior to that year every overt act of treason required the corroborating testimony of at least two competent witnesses. 66 As a consequence of the 1977 amendment to the Act only one competent witness is currently required. 67 Treason has become, therefore, easier to prove. More significant, however, was the South African .g,ove.rnrnent' s sensitivity to the lo'ngstanding international criticism of its use of statutory offenses, such as "terrorism" as broadly defined by the 1967 Terrorism Act, especially where they carried the death penalty. Treason, as defined in common law, was obviously not an offense created by the apartheid State, but one which was common to the legal tradition of South Africa's major western allies. 68 The South African State's resort to the use of the charge of treason against its opponents occurred in the context of

66 In R.v.Hennig,1943 S.A. 172 (A.D.) at 176,181, the original conviction was overturned because the provisions of the earlier Criminal Procedure Act with respect to the testimony of two credible witnesses had not been complied with. 67 Criminal Procedure Act, No. 51 of 1977, sec.208; Gardiner and Lansdown, South African Criminal Law and Proce dure, vol.2,p.991. 68 see infra note 104. It should be noted, though, that the Prosecution in recent treason cases has invariably joined a main charge of treason with alternate charges under the security laws. The State has not been prepared to abandon the procedural advantages of charges under the latter.

48 continued and heightened popular resistance to the apartheid system, and in the aftermath of a crisis within the ruling Nationalist Party government which led to the emergence of the South African military as a significant political force. Since the mid-1970s the white minority govenment had been forced into a defensive posture by the growth of the independent trade union movement, black student militancy, the expansion of grassroots community organizations and the resurgence in popularity of the banned African National Congress (ANC). The Soweto and related uprisings of 1976 and 1977 and the brutal police response had underscored the inability of the Vorster government to maintain control over the economically important urban black population. In 1978 Vorster was replaced as Prime Minister by P.W. Botha, the Minister of Defence for fourteen years. Under the change of power, the military became increasingly influential in the formulation of all aspects of state policy, particularly through its presence in the crucial State Security Council, and the close relationship between Botha and his Minister of Defence, General Magnus Malan. 69 The increasing militarization of South African society was accompanied by the official propagation of what was in effect a counter-insurgency or counter-revolutionary doctrine,

69 Davies et aI, The Struggle for South Africa, vol. 1, pp. 3242, 182-185; Philip Frankel, Pretoria's Praetorians Civil-Military relations in South Africa, (CUP, Cambridge, 1984), pp.34-35,68

49 known as "Total strategy". Malan was a major architect of the 1977 White Paper on Defence which had called for a 'total strategy' to counter "the multi-dimensional onslaught against the Republic of South Africa in the ideological, military, economic, social, psychological, cultural, political and diplomatic fields.,,70 Co-ordinated action between government departments and institutions, and other influential groups, such as the business sector, was needed to counter what Malan called the "total war" against South Africa. 7l Since 1979, the Botha government strategy has involved combining military force, used both regionally and internally in conjunction with police power, with a package of reforms designed to cut the ground from beneath the feet of its domestic opponents, and incidentally its international critics, while preserving white supremacy.72 In this context the State's use of the charge of treason achieves a signif-

70 Frankel, idem, pp.46-47,54-56,62 71 Kenneth Grundy, The Rise of the South African Security Establishment (Johannesburg: South African Institute of International Affairs, 1983), p. 4. 72 Frankel, Pretoria's Praetorians, pp.52,58,69. It is no coincidence that two crucial commissions of inquiry, the Wiehahn and the Riekert which recommended certain changes in the system of job reservation and the pass laws governing the position of urban black workers and their families, reported in 1979. In that same year two other important commissions, the Rabie and the Hoexter, were established to enquire into the operation of the security laws and the structure of the courts (Davies et aI, The Struggle for South Africa, pp.40,177; the Report of the Commission of Enquiry into Security Legislation, February 1982, para. 1.1; The Report of the Commission of Enquiry into the Structure and Functioning of the Courts, 1983, Part A, para.l.l.l) 50 icant propaganda goal. It is an attempt to stigmatize anti-apartheid activists as criminals and agents of foreign enemies engaged in a "total onslaught" against South Africa. In attempting to justify the imposition of harsh sentences in recent treason cases some jUdges have referred to the country being in a state of war. 73 The "vagueness and openness to abuse of the definition of treason," as professor Karis noted,74 has faciliated this process of criminalizing the actions of government opponents. Any action, however peacefully conducted, can be construed as treasonable provided the State can demonstrate the requisite hostile intent in the accused. Typically they have attempted to do this through alledging the existence of a conspiracy between the accused and the banned African National Congress. with the indictment for treason of sixteen leading members of the united Demo cratic Front, none of whom are members of the ANC,75 the South African government has moved to further choke off the few channels remaining to the disenfranchised majority to bring about change peacefully.

73 For example, Mr. Justice Van Dyk in S.v.Hogan (Finan cial Mail, October 29, 1982); Mr. Acting Justice Myburgh in S.v.Niehaus & Lourens (Rand Daily Mail, Nov. 29, 1983); and Chief Justice Rumpff in S.v.Mange, 1980(4) S.A., 613 (A.D.), at 619. 74 In "The South African Treason Trial", p.234 75 In contrast with the admissions made in S.v.Hogan and S.v.Niehaus & Lourens, two other cases where no acts of violence had been alleged (Survey of Race Relations, 1983, pp.560-56l) •

51 Part II: The United Democratic Front Treason Trial

Section 1: The Main Count - Treason In September 1985 the trial for treason of sixteen leading members of the UDF and affiliated organizations will begin in the Supreme Court (Natal Provincial Division) in. pietermaritizburg. Arguments on the motion filed by the defense to quash the indictment will be heard on August 5th. The accused are facing a main charge 'of treason, the crux of which concerns an alleged conspiracy between them and a number of banned organizations. In the preamble to the indictment, the State claimed that the defendants and the organizations which they represent76 had acted to further the aims of a "Revolutionary Alliance" formed between the banned African National Congress (ANC) and South African Communist Party (SACP), together with the South African Congress of Trade Unions (SACTU) .77 The State made a number of assertions

76 The United Democratic Front (UDF) and 4 of its affiliated organizations: the South At r ican All i ed Worker s I Union (SAAWU), the Natal Indian Congress (NIC), the Transvaal Indian Congress (TIC), and the Release Mandela Committee (RMC). See Appendix B for profiles of these organizations. 77The ANC was declared an unlawful organization by virtue of Proclamation R. 119 of 8 April 1960, read with section 22 of the General Law Further Amendment Act, Act No. 93 of 1963, and with sections 1 and 73 of the Internal Security Act (1982). The SACP was declared an unlawful organization in terms of section 2 of the Internal Security Act (1950), read with Proclamation R. 305 of 13 November 1964, with Proclama tion R. 38 of 4 February 1966, and sections 1 and 73 of the Internal Security Act (1982). SACTU was never explicitly banned, though has been regarded by the Nationalist Party 52 concerning these latter organizations. The ANC, according to the indictment, regarded itself as being "engaged in a revolu tionary struggle for the armed seizure of power in the Republic of south Africa." TO accomplish this object the ANC "aims and endeavors to unlawfully overthrow the lawfully establ ished Government of the Republ ic of south Afr ica" by violent and/or any other unlawful means. The SACP, similarly, "aims and endeavors to unlaWfully overthrow the lawfully established Government" by violent and/or other unlawful means. Finally SACTU aims "to organize workers in the Republic, whether employed or unemployed, to playa militant role in a revolution in the Republic, to bring about a revolutionary change in the economic, social and political system in the Republic." The State alleged that these three organizations had conspired with one another and had joined in a "revolutionary alliance" in order to further the aims of overthrowing the Government by violent and/or other unlawful means. The final result of this whole campaign would be the armed seizure of Government power by the Revolutionary Alliance led by the ANC. 78 The State further alleged that the Freedom Charter, since its adoption by the ANC and other organizations in 1955,79 was government as the trade union wing of the ANC. Since 1964 it has been forced to operate underground and in exile. 78preamble in the Indictment, paras 1.1 - 4.1.4. 79see Appendix C for a copy of this document.

53 regarded by the Revolutionary Alliance as its political program and policy document, the principles of which could only be implemented in the Republic through a violent revolution. Nevertheless, the state alleged, the Alliance also aimed at encouraging "non-violent political forms of struggle with the overall object of creating a climate favorable to the Revolutionary Alliance and, therefore, for the revolution, in order to bring about a revolutionary change in the economic, social and political system in the Republic." These non-violent tactics allegedly included:

( i) non-collaboration by workers, strikes, boycotts and demonstrations;

(i i) the mass mobilization and politicization of all the people; (ii i) the propagation for the unconditional release of all the revolutionary leaders and/or of all the political prisoners in jails inside the Republ ic;

(iv) the return of leaders in exile;

( v) the popularization of leaders of the Revolu tionary Alliance;

(v i) the popularization of the Freedom Charter; and (vii) the popularization of the so-called peoples' organizations. 80 The first category of the alleged tactics and SACTU were focused upon in the preamble. SACTU, with the alleged object of overthrowing the Government by unlawful means, was endeavoring:

80preamble to the Indictment, paras 4.2 - 4.5.1. 54 ( i) to create a trade union consciousness amongst the workers, to raise that conscious ness to the level of political and class consciousness, with tne ultimate aim of creating a revolutionary consciousness;

(i i) to organize unemployed workers in the Republic in an Unemployed Workers Union in order to strengthen the Trade Union Movement by preventing the unemployed from taking over the jobs of striking workers, thereby creating a political instrument to promote the unity of the working class in order to cripple, prejudice or interrupt industries or undertakings generally in the Republic; and (i i i) to organize all trade unions into Industrial Unions in order to facilitate the co-ordina tion of nationwide strike- and boycott-actions within the same industry, in order to cripple prejudice or interrupt industries and undertakings generally in the Republ ic. 81 Following this review of the alleged aims of and methods employed by the ANC, SACP and SACTU, the state then moved to the substance of its charge of treason against the defendants. It stated that: (1) the Revolutionary Alliance has used and is using the National Executive Committee of the UDF and/or other leaders of the UDF to carry out its tactical program (specifically points (ii) - (vii) listed above); (2) the South African Allied Workers' Union (SAAWU) had implemented and propagated the constitution and Declaration of Principles of SACTU, and sought to further the aims and objectives of SACTU; (3) the Natal Indian Congress (NIC) and Transvaal Indian Congress (TIC), as former affiliates

81~, paras. 4.6 - 4.6.1. This language was drafted to parallel that of section 54 of the Internal Security Act (1982). 55 of the South African Indian Congress (SAIC) which, together with the ANC and other organizations had formed the Congress Alliance and were co-signatories with them of the Freedom Charter, were committed to the objectives of the Congress Alliance as laid down in the Freedom Charter. Through their identification with the Congress Alliance which shared the same violent objectives of the Revolutionary Alliance, the NIC and TIC were committed to the tactical program of the latter (specifically points (ii) - (vii) above);82 and, finally, (4) the Release Mandela Committee (RMC), in calling for the unconditional release of all political prisoners, the end of the banning "'andde'tention -systems, the return of all exi~es, and the hold~ng of a National Convention for the creation of a "so-called true, non-racial, democratic.society," has identified and associated itself with the Revolutionary Alliance, in particular with the ANC. By popularizing the symbols of the Alliance and its program (the Freedom Charter), the RMC.has aimed to create a favorable climate for the Alliance and so further its aims and objects. 83

82 The Congress Alliance involved the ANC, the SAIC, the Coloured People's Congress, the Congress of Democrats (an organization of democratic whites) and, after 1955, SACTU, under the leadership of the ANC. In June, 1955, 3,000 delegates from these organizations gathered at Kliptown, outside Johannesburg, and adopted the Freedom Charter as expressing the basic demands of the people of South Africa [Davies et aI, The struggle for South Africa, vol.2, p. 286]. In para 7.1 of the Preamble to the Indictment reference is made to "the so-called Dadoo-Xuma-Naicker Pact in 1946 which laid a foundation for unity in action" between the signatories (ANC, NIC and TIC). This, according to the Indictment, became known as the "Congress Movement." Actually the pact was signed in 1947 and involved the ANC and the SAIC. Dr. Yusuf Dadoo was a leading member of the SAIC and recently, until his death in 1983, was the chairman of the South African Communist Party. Throughout the Indictment the prosecution attempts to make much of the alleged connections between Dadoo and the current leadership of the NIC and TIC. 83preamble to the Indictment, paras. 5.1 - 8.4.

56 The state alleges that through their membership and official positions in the above organizations, each of the accused had accordingly identified themselves with the aims and objects of the Revolutionary Alliance. 84 Each of the accused, are alleged to have,by actions and/or omissions, conspired with the Revolutionary Alliance, with its members and/or supporters, with the other accused, with a number of specified individuals,85 with speakers, organizers of and

84 It is interesting to note that no reference is made to the position of any of the accused in the UDF. Ramgobin, Sewpershad, Naidoo, Gumede and David are linked in the indictment to the NIC; Jassat, Saloojee and Mohamed to the TIC; Mokoena, Nkondo, Gumede and Sisulu to the RMC; and Gqweta, Njikalana, Kikine and Ngcobo to SAAWU. There is also no reference to accused no. 10, Frank Chikane. It may be that the State has chosen to play down the UDF dimension of this trial -- President P.W. Botha, for instance, claimed in a letter to Senator Kennedy on 27 February, 1985, that "the fact that those who are charged fill some leadership roles in the UDF is coincidental." Nevertheless, the UDF has been singled out for systematic attack as an "ANC Front" by the Minister of Law and Order, Louis Le Grange, since 1983 and most inten sively so in the past six months. So much so that Mr. Justice Milne sent a telegram to the government in late April warning them not to anticipate the issue about which he must form a judgement in the trial itself. He also issued a similar warning to the press with respect to a possible violation of the sub judice rule (reported in the Johannesburg Star May 27, 1985) • 85 Oscar Mpeta, Terror Lekota, Billy Nair, Dorothy Nyembe and Stephen Tshweta. Mpeta, a 75-year-old organizer for the Food and Canning Workers' Union (one of the founder unions of SACTU) and Patron of the UDF, recently lost an appeal against a five-year sentence for offenses under the Terrorism Act. A plea for clemency to the State President has been made on his behalf. Lekota, the national publicity secretary of the UDF, was detained under section 29 of the Internal Security Act (1982) on April 24, 1985. On June 11 he was indicted for treason along with 21 others. The trial will probably be held in the Pretoria Supreme Court starting in September. Nair was formerly a member of the National Executive of SACTU and served a 20-year sentence on Robben Island. He was one of the 57 participants in various meetings referred to in the schedules of the Indictment, with persons unknown to the state, and with certain witnesses for the state. The intention of this conspiracy was to further the aims of the Revolutionary Alliance. In collaboration with others and/or individually, the accused allegedly had committed certain acts, during the period 1980 - 1985, in furtherance of these aims. The state claims that as citizens of the Republic of South Africa, a sovereign state to whom they owe allegiance, the accused acted "unlawfully and with hostile intent against the State to overthrow or to coerce or to endanger the Government of the Republic." The State maintains .that these actions constitute the crime of treason. 86 The overt acts on which the state is relying to infer the existence of a treasonable conspiracy between the accused six men who took refuge in the British Consulate in Durban but was not arrested when leaving it on December 12, 1984. Tshwete, chairman of the Border branch of the UDF, was banished to the Ciskei in November 1984. He was deprived of his South African citizenship, declared an alien and barred from travelling outside of the Ciskei without a visa. His recent appeal against this order in the Grahamstown Supreme Court was successful. He had previously served a 12 year sentence on Robben Island and a 3 year banning order following his release in 1979. Nyembe, a former president of the Natal ANC Women's League, was released from prison in 1984 after serving a fifteen-year sentence. 86 Preamble to the Indictment, paras. 9.1 - 10. Although the so-called "Revolutionary Alliance" is central to the State's conception of the treasonable conspiracy, the State has admitted that it "does not know when, where and how the Revolutionary Alliance was formed" and "does not know exactly when, where and how each accused joined the conspiracy" (Further Particulars in Response to the Request for Further Particulars by the Accused, 9 May 1985, vol 1, pp. 12,14). 58 and the alleged ANC, SACP and SACTU alliance, are listed in over 500 pages of schedules attached to the main part of the indictment. The lists consist of various public meetings attended and/or addressed by the accused and the details of what they are alleged to have said at these meetings. 87 The state also relies on statements made by others, and songs and slogans shouted at these meetings, for which the accused are apparently vicariously responsible. These lists also contain details of publications which the accused are alleged to have produced. There are no allegations of specific acts of violence, nor of membership in the ANC, nor of clandestine meetings between the accused and alleged members of the ANC.

Section 2: The Alternate Charges (A) Terrorism Under the Internal Security Act of 1982 The first alternate charge is terrorism under the Internal Security Act of 1982. This statute was enacted in

87 The listed meetings included: a memorial service in hornor of the former Nobel Prize winner, Chief Albert Luthuli (July 1983); a meeting in June 1982 celebrating the anniver sary of the signing of the Freedom Charter; the August 1983 rally launching the UDF as a national organization; and the February 1985 meeting held in honor of Bishop Desmond Tutu. The following is typical both of the speeches attributed to the accused: "• Mandela has now become the new symbol of hope for a better South Africa." (Ramgobin)

II • we shall not rest until this Government release our leaders and have a conference with them so that this country is ruled by the government that will be elected by the people •••• II (Sisulu)

59 1982 to consolidate the mass of security legislation that existed before that time. Although many highly criticized aspects of the previous security laws remain in the new Act (e.g., indefinite incommunicado detention without charge or trial), there are some improvements, particularly with regard to the offense of terrorism. Terrorism is defined in the statute as the commission, attempt or threat of an act of violence. 88 The act itself need not be violent as long as the act is performed or attempted with the aim of "promoting or contributing towards" an act or threat of violence. 89 A conspiracy to perform such acts or inciting or encouraging others to do so is also considered terrori~.90 In order to fit the definition, the act must be done with the intention to: A) overthrow or endanger the State authority in the Republ ic; B) achieve, bring about or promote any constitu tional, political, industrial, social or economic aim or change in the Republic; C) induce the Government of the Republic to do or to abstain from doing any act or to adopt or to abandon a particUlar standpoint; or D) put in fear or demoralize the general public, a particUlar population group or the inhabitants of a particUlar area in the Republic; or to induce

88Internal Security Act, No. 74 of 1982 § 54(1). 89 Ibid. 90 Ibid •

60 the said public or such population group or inhabitants to do or abstain from doing any act. 91 The prosecution's task of proving these broadly defined intentions is facilitated by presumptions established in the Internal Security Act. If the prosecution can prove that any of the acts alleged, resulted in, or was likely to have resulted in the consequences listed in A- D, then the act can be presumed to have been committed with the intention to do so.92 The 1982 Act establishes a number of other presumptions which facilitate gaining a conviction. Any documents found in the possession of the accused or produced for any organization of which she/he is a member can be used as prima facie proof of the contents within. 93 Additionally, if one has attended meetings, distributed publications or promoted the purposes of any organization, that person is presumed to be a member or active supporter. 94 These presumptions are all rebuttable by proof to the contrary constituting the "prepon derance of probabilities. ,,95 A conviction for terrorism

91 Ibid. 92 Ibid. § 69(5) •

93 Ibid. § 69(4). 94 Ibid. § 69(1) • 95 This is taken from The Report of the Commission of Inquiry into Security Legislation (Rabie Commission Report) §14.4.8.2, p. 203.

61 carries with it the "penalties provided for by law for the offence of treason," which makes it a capital offense. 96 The acts alleged in the current trial of UDP leaders are all non-violent. Therefore, in order to convict the defendants of terrorism the prosecution will have to link their non-violent acts to some act or threat of violence. The State would have to prove either that these acts were performed with the aim of "bringing about" or "contributing towards" violent acts or threats of violence, or that the acts incited or encouraged others to commit violent acts or threats. If the State does not succeed in proving that the defendants have committed terrorism, th~re is still a chance that they could be convicted of subversion or sabotage, lesser offenses included within terrorism. 97 These offenses are easier to prove, as the acts involved do not necessarily have to be linked to violence. To be convicted of subversion, one must, with the same intent as described for terrorism, commit any act which produces a number of broadly defined results. 98

96Internal Security Act [1982] § 54(1).

97 Ibid . § 54(6). The section provides that if the evidence produced in a Terrorism trial is not sufficient to convict of that offense, but if sufficient to convict of Sabotage or Subversion, then the accused may be found guilty of these offenses.

98 Ibid . § 54(2). The results named are: a) causes or promotes general dislocation at any place in the Republic, or attempts to do SOi

62 b) cripples, prejudices or interrupts at anY place in the Republic any industry or undertaking, or industries or undertakings generally, or the production, supply or distribution of commodities or foodstuffs, or attempts to do SOi c) interrupts, impedes or endangers at any place in the Republic the manufacture, storage, generation, distribution, rendering or supply of fuel, petroleum products, energy, light, power or water or of sanitary, medical, health, educational, police, fire-fighting, ambulance, postal or telecommunication services or radio or television transmitting, broadcasting or receiving services or any other public service, or attempts to do SOi d) endangers, damages, destroys, renders useless or unserviceable or puts out of action at any place in the Republic any installation for the rendering or supply of any service referred to in paragraph (c), any prohibited place or any public building, or attempts to do SOi e) prevents or hampers, or deters any person from assisting in, the maintenace of law and order at any place in the Republic, or attempts to do SOi f) impedes or endangers at any place in the Republic the free movement of any traffic on land, at sea or in the air, or attempts to do SOi g) causes, encourages or foments feelings of hostility between different population groups or parts of population groups of the Repub lic, or attempts to do SOi h) destroys, pollutes or contaminates any water supply which is intended for public use in -the Republic, or attempts to do SOi i) in the Republic or elsewhere performs any act or attempts, consents or takes any steps to perform any act which results in or could have resulted in or promotes or could have 63 To be convicted of sabotage, the critical element is that the accused can be shown to have committed or attempted to commit any act with an intent which falls within the statutory definitions. 99 The nature of the act itself is immaterial,

promoted the commission of any of the acts or the bringing about of any of the results contemplated in paragraphs (a) to (h), inclusive; j) conspires with any other person to commit, bring about or perform any of the acts or results contemplated in paragraphs (a) to (-h), inc}usi·ve, or any-act contemplated in paragraph (i), or to aid in the commission, bringing about or performance thereof; or k) incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about or perform such act or result • • 99IQiQ. § 54(3) The intentions defined are: a) endanger the safety, health or interests of the public at any place in the Republic; b) destroy, pollute or contaminate any water supply in the Republic which is intended for pUblic use; c) interrupt, impede or endanger at any place in the Republic the manufacture, storage, generation, distribution, rendering or supply of fuel, petroleum products, energy, light power or water, or of sanitary, medical, health, educational, police, fire-fighting, ambulance, postal or telecommunication services or radio or television transmitting, broadcasting or receiving services or any other public service; d) endanger, damage, destroy, render useless or unserviceable or put out of action at any place in the Republic any installation for the rendering or supply of any service referred to in paragraph (c), any prohibited place or any public building; e) cripple, prejudice or interrupt at any place in the Republic any industry or undertaking or industries generally or the production, supply or distribution 64 the crime is determined solely by the mens rea. The pre viously mentioned statutory presumptions apply to these offenses as well. The maximum prison sentence for subversion is 25 yearslOO and for sabotage is 20 years. lOl

(B) Terrorism Actiyities Under the Terrorism Act of 1967 The second alternate charge is brought under the Terrorism Act No. 83 of 1967. This act was repealed by the Internal Security Act of 1982, yet the government has chosen to use this older statute against seven of the sixteen accused with respect to activities alleged to have taken place between 1980 and July 1982, just prior to the enactment of the newer Internal Security Act. Four of those charged under the Terrorism Act are all leaders of the South African Allied Workers' Union (SAAWU) .102 The other three are all leaders of the Release Mandela Committee. l03

of commodities or foodstuffs; or f) impede or endanger at any place in the Republic the free movement of any traffic on land, at sea or in the air.

100IQiQ. § 54(2). A 25 year sentence can only be imposed if the Act charged involved violence. Otherwise the maximum sentence is 20 years. lOlIbid. 102These four are: Thozamile Gqweta, Sisa Njikelana, Samuel Bhekuyise Kikine, and Isaac Ngcobo. 103curtis Nkondo, Archie Gumede and Paul David.

65 The Terrorism Act was controversial and widely criticized even by South African legal scholars. l04 Certain provisions make it extremely easy to get a conviction for even minor non-violent acts. A conviction under the Terrorism Act carries with it a minimum five year sentence and the possi bility of a death sentence. 105 Under the statutory definition, an offense has occurred when a person commits, attempts or conspires to commit any act

104~ A. S. Mathews Law and Ord,er .and,-L,iberty in South Africa, Berkeley, University of California Press 1972 and John Dugard, Human Rights and the South African Legal Order, Princeton, Princeton University Press 1978, pp. 262-264. See also The Rabie Commission Report supra 94. The Rabie Commis sion, a commission appointed by the South African State President in 1979 to study the security legislation and recommend reforms was also critical of aspects of the Terror ism Act. Their report was criticized as not going far enough in their critique and recommendations but, the Commission admitted that there was "considerable justification" for criticism of the Terrorism Act. The Rabie Commission concluded that the Terrorism Act was particularly "unsatis factory" in that there existed the possibility that a person might be gUilty of the offense of participation in terroristic activities without having used or even threatened or intended violence •••• " The Commission criticized the presumption provisions and in the Rabie Commission draft bill (which subsequently became the Internal Security Act of 1982) the presumption section was restricted. The Commission also recommended that the minimum sentence requirement be dropped, stating that sentence discretion is a proper function of the Court. The Act was described as arbitrary by the United Nations Security Council (Security Council Resolution 245, 1968) and even the Association of the Bar of the City of New York described it as offending "basic concepts of justice, due process and the rule of law accepted by civilized nations" (Resolution of 20 December 1967).

10STerrorism Act No. 83 of 1967 § 2(1).

66 with intent to endanger the maintenance of law. 106 Once the requisite intent "to endanger the maintenance of law and order" is proven, any act whatsoever constitutes terrorism and exposes the actor to potentially stiff penalties. Thus, there is no requirement that the act be otherwise unlawful or violent, only that it be done with the requisite intent. Proof of that requisite intent is facilitated by the provisions of section 2(2) of the Terrorism Act which states that any act proven will be presumed to have been committed with the intent to endanger the maintenance of law and order if the commission of such act had or was likely to have had any of the broad results named. 107 This presumption is

l06Ibid •

l07lQiQ. § 2(2) The results named are: a) to hamper or to deter any person from assisting in the maintenance of law and order; b) to promote, by intimidation, the achievement of any object; c) to cause or promote general dislocation, disturbance or disorder; d) to cripple or prejudice any industry or undertaking or industries or undertakings generally or the production or distribution of commoditie~ or foodstuffs at any place; e) to cause, encourage or further an insurrection or forcible resistance to the Government or the Administration of the territory; f) to further or encourage the achievement of any political aim, including the bringing about of any social or economic change, by violence or forcible means or by the intervention of or in accordance with the direction or under the guidance of or in 67 rebuttable only if the defendant can prove "beyond a reason able doubt" that she/he did not intend any of the named results. lOa It is to be noted that it is the intent to cause the consequences that must be rebutted, not the intent to endanger the maintenance of law and order. Thus, it is irrebuttably presumed that the intent to bring about anY of the very broadly defined results is equal to the intent to endanger the maintenance of law and order. Because the list of consequences could be intended by one committing seemingly

co-cooperation with or with the assistance of any foreign government or any foreign or international body or institution; g) to cause serious bodily injury to or endanger the safety of any person; h) to cause substantial financial loss to any person or the state; i) to cause, encourage or further feelings of hostility between the White and other inhabitants of the Republic; j) to damage, destroy, endanger, interrupt, render useless or unserviceable or put out of action the supply or distribution at any place of light, power, fuel, foodstuffs or water, or of sanitary, medical, fire extinguishing, postal, telephone or telegraph services or installations, or radio transmitting, broadcasting or receiving services or installations; k) to obstruct or endanger the free movement of any traffic on land, at sea or in the air; 1) to embarrass the administration of the affairs of the State. l08Ibid•

68 innocent, non-violent acts, one could be sentenced to death for such non-violent acts.

(C) Furtherance of Objects of an Unlawful Organization The third alternate charge is "furtherance of the objects of an unlawful organization" under section 13 of the Internal Security Act of 1982. This provision of the Act states that no person shall "advocate, advise, defend or encourage the achievement of any of the objects of the unlawful organization or objects similar to the objects of such organization, or perform any other act of whatever nature which is calculated to further the achievement of any such object. "109 An "unlawful organization" is one tha t has been so declared by the Minister of Law and Order because it allegedly promotes "communi sm" or "engages in activ i tie s which endange r the security of the State or the maintenance of law and order. ,,110 It can be presumed from the allegations in the indict ment that the unlawful organizations to which this charge refers are the African National Congress (ANC) and the South African Communist Party (SACP). These organizations are repeatedly mentioned in the indictment and form a part of the so-called "revolutionary alliance" that the government claims exists. They have been officially declared unlawful

109Internal Security Act [1982] § 13(1) (a) (v).

ll0Ibid • § 4.

69 organizations,lll thus "furthering their aims" is a crime under § 13 (1) (A) (V) of the Internal Securi ty Act. It is to be noted that not only is encouraging or defending the objectives of these organizations illegal, but also encouraging or defending objects similar to the objects of those organizations is equally illegal. The use of the phrase "similar to" broadens the definition of the crime significantly. In order to be convicted the accused need not have any direct link to such unlawful organizations. A conviction is punishable by up to ten years imprisonment.

(D) Furtherance of the Objects of Communism Only six of the sixteen accused have been charged with "furtherance of the objects of communism" under the Internal Security Act of 1982.112 The Act makes it illegal to advocate, advise, defend or encourage the achievement of any of the "objects of communism" or perform any act "calculated to further the achievement thereof. ,,113 The official definitions of "communism" in the Internal Security Act includes any doctrine, ideology or scheme which

lllsee supra note 77. 112The six charged with this offense are: Mewa Ramgobin, George Sewpersadh, M. J. Naidoo, Essop Jassat, Paul David, Cassim Saloojee.

113Internal Security Act [1982] § 55.

70 (a) is based on the tenants of recognized communist theorists, or "aims at the establishment of any form of socialism or collective ownership;" (b) aims at establishing a one party "despotic form of government" by the polarization of classes; (c) aims at bringing about change in the Republic in cooperation with or under the guidance of a foreign government or international institution whose purpose is to bring about a government in the Republic as described in (a) or (b) .114 To gain a conviction, the State must establish that the named defendants either advocated the achievement of the aims listed above, or performed acts calculated to do so. Upon conviction the accused can be imprisoned for up to 10 years. 115

(E) Furtherance of the Objects of Communism and/or the ANC The fifth alternate charge, "furtherance of the objects of communism and/or the ANC," applies to only nine of the sixteen defendants. 116 Again, the State is using an older statute which has been repealed by the Internal Security Act of 1982, that is, the Internal Security Act of 1950.117 The illegal activities alleged under this count were committed just prior to the enactment of the newer statute. The main differences between the older and newer statutes are the

114Ibid • § 1.

l15Ibid • § 55. l16The nine charged with this offense are: Mewa Ramgobin, George Sewpersadh, M. J. Naidoo, Essop Jasset, Paul David, Thozamile Gqweta, Sisa Njikelana, Sam Kikine, Isaac Ngcobo. 117Internal Security Act No. 44 of 1950. 71 definition of communism and :the inclusion in the older Act of specific provisions regarding the ANC. 118 The definition of the offense itself is basically the same as was discussed in the preceding section. The definition of communism in the older Act is broader than in the 1982 Internal Security Act. It includes as communist any doctrine which: "aims at bringing about any political, industrial, social or economic change within the Republic by the promotion of disturbance or disorder, by unlawful a.cts or omissions or by the threat of such acts or omissions or by means which include the promotion of disturbance or disorder, or such or omissions or threat. ,,119 Thus, "communism" includes any doctrine which seeks to bring about any change through the threat of "disorder" or "unlawful" means. The ideological basis for the doctrine is irrelevant under the statutory definition. The Unlawful Organization Act of 1960 expanded the sections of the older Internal Security Act [1950] that referred to the "furtherance of the objects of communism. ,,120 That Act made those sections applicable not only to "communism" but al so to "unlawful organizations." Since the ANC was declared an unlawful organization in 1960, the relevant sections were amended to refer to the furtherance of the objects of the ANC. All of this was consolidated in the

ll8see Unlawful Organization Act No. 34 of 1960.

ll9Interna1 Security Act [ 1950] § 1.

120un1awfu1 Organizations Act No. 34 of 1960 § 2(d).

72 Unlawful Organization sections of the Internal Security Act of 1982.121 Finally, the older Act contains a mandatory minimum sentence of one year. 122 The maximum sentence, as in the newer Act, is ten years.

CONCLUSION Since 1979 the South African government has resorted frequently to the use of the common-law charge of treason against anti-apartheid activists. Used initially in trials where the defendants were accused of sabotage or other acts of violence, the scope of this offense was expanded with the 1982 conviction for treason of Barbara Hogan. In that trial non-violent activities were construed as potentially treason able acts, the element of 'hostile intent' inferred from the accused's alleged connections with the banned African National Congress. The current treason trial of leaders of the United Demo cratic Front marks a new stage in what the State regards as treason. The trial arose out of events surrounding the government's imposition of the new constitution, which was overwhelmingly rejected by the majority of South Africa's population during the 1984 elections. The tactics employed by the United Democratic Front in its campaign against the

l2lSee discussion of the third alternate charge infra. l22Internal Security Act [1950], §11.

73 constitution were peaceful. In the indictment against the UDF leaders the state is attempting to infer the existence of a treasonable conspiracy from non-violent activities, mainly utterances of the accused which in other countries would be protected by norms of free speech. Should the state succeed in securing a conviction in this trial, the result may well lead to "renewed despair in the utility of legal political activities" to bring about fundamental change in the apartheid system. 123

123Raymond Suttner, "The Criminalization of Anti-Apartheid Activities in South Africa," paper presented to the Seminar on the Legal Aspects of Apartheid, co-sponsored by the Lawyers' Committee for Civil Rights Under Law and the Individual Rights and Responsibilities Section and the Standing Committee on World Order Under Law of the American Bar Association, Washington, D.C., July 6-7, 1985, p. 36.

74 :;'

"'", ....

".- APPt;l'lLJ.l.AA~A~------:------

THE UNITED DEMOCRATIC FRONT TREASON TRIAL DEFENDANTS

1. Albertina Sisulu - aged 67; one of the UDP national presi dents! has been subjected to restriction orders from 1964-~1, and was under house arrest from 1969-79; her husband, Walter, is serving a life sentence following his conviction in 1963 for contravening the country's security laws. 2. Archie Gurnede - aged 70; one of the UDP national presidents and a leading member of the Natal Indian Congress (NIC)*; a lawyer; was charged with treason and acquitted along with 156 others in 1956-60; was detained without trial twice in the 1960s. 3. The Bey. Prank Chikane - aged 34; UDP vice-president (Transvaal branch); General Secretary of the Institute for Contextual Theology, an ecumenical organization in Johannes burg; has been detained previously three times without t ri ale 4. Prof. Ismail Mohamed - aged 54; executive member of the UDF (Transvaal); executive member of the Transvaal Indian Congress (TIC)*; professor of mathematics at the University of Witwatersrand (Johannesburg) and graduate of the Univer sity of London; was detained without trial in 1977 and 1980. • 5. Cassim Saloojee - treasurer of the UDF; vice-president of the TIC. *. 6. Dr. EssoQ Jassat - aged 53; patron of the UDP; president of x the TIC ; leading member of various medical associations in South Africa. 7. M. J. Naidoo - aged 54; vice-president of the NIC *; a lawyer; was restricted under a banning order in 1982-83. 8. George Sewpershad - aged 49; president of the NIC*; a lawyer; has been restricted under banning orders; has been on trial four times between 1973 and 1983 for breach of security laws, and was acquitted on three occasions with charges being dropped on the fourth. 9. Mewa Bamoobin - aged 52; national treasurer of the UDF and a senior member of the Natal Indian Congress (NIC)*; a businessman; was restricted under a succession of banning orders between 1965 and 1983, as was his wife Ela, grand daughter of the late Mahatma Ghandi.

*an organization affiliated to the UDF ;; 10. Aubr§y Mokoena - aged 37; publicity secretary of the Release Mandela Committee (RMC)* and leading member of the UDF; a trained teacher and marketing director of a construction company; has been placed previously under a banning order. 11. Curtis Nkondo - aged 57; vice-president of the UDF (Trans vaal) and chairman of the RMC*; a former chairman of the Sowetan Teachers' Action Committee; detained without trial in 1980; was restricted under a three-year banning order. 12. Paul David - aged 45; a leading member of the RMC (Natal)*; executive member of the NIC*; a lawyer; was detained without trial in 1980. 13. Thozamile Gaweta - aged 30; president of the South African Allied Workers' Union (SAAWU)*; has been detained without trial at least seven times between 1979 and 1983; required hospitalization' as a result of torture while in detention in 1982. 14. Sam Kikine - aged 36; general secretary-of SAAWU*; was detained without trial in 1981-82. 15. Sisa Njikelana' - aged 29; vice-president of SAAWU*; has been detained at least seven times without trial between 1979 and 1983.

16~ Isaac Nacobo - aged 38; branch treasurer of SAAWU*; has been detained without trial previously.

*an organization affiliated to the UDF APPENDIX B

ORGANIZATIONAL PROFILE

United Democratic Front (UDF): the UDF is a coalition of over 600 women's, student's, worker, youth, community and political organizations across South Africa. It was launched as a national organization in August 1983 to coordinate opposition to the new constitution introduced by the rUling white minority government. The proposed new constitution simply entrenched apartheid. It excludes the participation of the 73 percent black (African) majority in the central body politic and extends only limited participa tion to the country's Indian and Coloured (mixed-race) population. A continued white monopolization of power is guaranteed through the ethnically separate, tricameral parliamentary structure and the nature of the new executive presidency. The results of the elections, which were held in August 1984, indicated an overwhelming rejection of the new constitution. Only 18 percent of the eligible Indian and Coloured voters went to the polls. In June 1984 the UDF was awarded the prestigious 'Let Live' Peace Award Prize by the Swedish Government, in recognition of its fight against the injustices of apartheid and its commitment to democracy.

Organizations affiliated to the UDF and named in the Indictment (1) Transvaal Indian Congress (TIC) Natal Indian Congress (NIC): The NIC, which was formed by the Mahatma Gandhi in 1894, developed the tactic of passive resistance in campaigns against discriminatory legislation affecting persons of Indian origin in South Africa. That tactic was later used in the independence struggle in India, and the civil rights movement in the United States. In 1920 the NIC merged with the Congresses of the Transvaal and the Cape to form the South African Indian Congress (SAIC). The SAIC participated, along with other organizations, in the civil disobedience campaigns of the 1950s against the apartheid policies of the then newly elected Nationalist Party government. In the early 1960s many of the SAIC leaders were banned, jailed or forced into exile. In 1971 a group led by Mewa Ramgobin, currently one of the UDF leaders on trial for treason, revived the NIC. The TIC was revived in 1983. Both organizations actively campaigned against the new constitutional proposals and the elections in 1984. (2) South African Allied Workers' Union (SAAWU): This general workers' union grew rapidly after its establishment in the eastern Cape city of East London in 1980. It has taken a strong non-racial line. Apart from organizing workers around issues of workplace conditions and recognition agreements with employers, SAAWU has campaigned for a national minimum wage and the implementation of codes of conduct by foreign companies in South AFrica. SAAWU has called for the abolition of the pass laws, the migratory labor system and an end to the homelands policy. Its leaders and members have been constantly arrested and detained by the South African and Ciskeian (homeland) security police. Despite this it has a membership of 100,000. (3) The Release Mandela Committee (RMC): The RMC, which grew out of the 1980 Release Mandela campaign, has chapters in about a dozen major urban centers across South Africa. The RMC has campaigned for the release of Nelson Mandela, the imprisoned leader of the African National Congress (ANC), and to highlight the central contribution the country's political prisoners have made in the past and can make to a future South Africa.