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ADDITIONAL REPORTS OF THE

ON APARTHEID

• GENERAL ASSEMBLV

OFFICiAL RECORDS: TWENT\(-NINTH SESSION

SUPPLEMENT No. 22A (A/9622/Add.1)

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UNITED NATIONS 22A

1, ¡1 ,I ~,,:

I1 I ADDITIONAL REPORTS OFTHE SPECIAL COMMITrEE ON APARTHEID

• GENERAl. ASSEMBLY

OFFICIAL RECORDS: TWENTY..NINTH SESSION

SUPPLEMENT No. 22A (A/9622/Add.1)

UNITED NATIONS New York, 1975 . -_JtlItIII--[iII__I!IIII!II!M'l!W__i!i__"el!~~1'~f~'::~;~_~~".__j¡lII""'''ill._.il_ftiílill§~\j

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NOTE

Syrnbols of United Natíons documents are composed of capital letters combined wíth figures. Mentíon of such a symbol indicates a reference to a United Nations documento

The present volume contains the four additional reports submitted to the General Assembly, at its request, by the SpeciaI Committee on Apartheid. They were previously issued in mimeographed form under the symbols A/9780, A/9781, A/9803 and A/9804 and Corr.l ,

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CUNTENTS Page . PART ONE. REPORT ON VIOLATIONS OF THE CHARTER OF THE J"" UNITED NATIONS AND RESOLUTIONS OF THE GENERAL ASSEMBLY AND THE SECURITY COUNCIL BY THE SOUTH AFRICAN REGlME ••••••••••••• • •• • • •• • PART TWO. REPORT ON ARBITRARY LAWS AND REGULATIONS ENACTED AND APPLIED BY THE SOUTH AFRICAN REGlME TO REPRESS THE LEGITlMATE STRUGGLE FOR FREEDOM •••••••••• e•••••••••• ¡, • •• 22"" PART THREE. REPORT ON ASSISTANCE PROVIDED BY GOVERNMENTS AND NON-GOVERNMENTAL ORGANIZATIONS TO THE OPPRESSED PEOPLE OF SOUTH AFRICA AND THEIR LIBERATION MOVEMENTS ••••••••••••••••••• •• 7i~ PART FOUR. REPORT ON ACTIONS AGAINST APARTHEID TAKEN BY SPECIALIZED AGENCIES AND OTHER INTERGOVERNMENTAL ORGANIZATIONS •••• • • • • • • • • • • • 87

-iii- PART O~TE

Report on violations of the Charter of the United Nations and resolutions of the General Assembly and the Sec~.\rity Couneil by the South African régime*

CONTEN'rs Paragraphs Page

l' LETTER OF TRANSMITTAL . •• • • ••• ••• • • • • • • •• • • • •• • v F '. 1 r l. INTRODUCTION •• • • • • • • • • • • • •• • • ••• 1 4 1 1:> II. VIOLATIONS OF THE CHARTER •• •• • • • • • • • • • • 5 - 26 1 '\.- ¡ ~-~" . J. II!. VIOLATIONS OF SECURITY COUNCIL RESOLUTIONS ON APARTHEID .•••,.••..•.••• • •• • • 27 - 58 5 \ . F IV. VIOLATIONS OF GENERAL ASSEMBLY RESOLUTIONS '.·.· ON APARTHEID «••••••••••"•••• • • •• 59 - 120 11 1, .

l~ A. Introduction ••• 5 •••••••••••••• 59 - 60 11 i l' . B. Treatment of people of Indian and Indo-Pakistan 1; origin in South Africa ••••••••••• o • 61 - 87 11 ,;. C. Question of race eonf1ict in South Africa •.•• 88 108 15 l' , \..'. D. P01icies of apartheid of the Government of the ¡.' ! Republic of South Africa •••••••••• • • 109 - 120 19

* Previously issued under the symb01 A/9780

-iv- LETTER OF TRANSMITTAL

27 Bep'tember 1974

Sir,

I have the honour to send you herewith a report entitled "Assistance '. provided by Governments and non-governmental organizations to the oppressed peop1e of South Africa and their 1iberations movements", adopted unanimously by the Special Committee on Apartheid on 11 October 1974.

This report is submitted to the General Assemb1y in accordance with the request contained in resolution 3151 D (XXVIII) adopted by the General Assembly on 14 December 1973.

Accept, Sir, the assurances of my highest consideration.

(Signed) Edwin Ogebe OGBU Chairman of the Special Comrndttee on Apartheid

His Exce11ency Mr. Kurt Waldheim Secretary-General of the United Nations New York

-v-

-".'-. ';;, l. INTRODUCTION l. Ever since the establishment of the United Nations, the successive South African Governments have repeatedly and flagrantly violated the provisions of the United Nations Charter, notably those concerning human rights and non-discrimination. They have also ignored and defied numerous resolutions of the Security Council and the General Assembly calling for an end to racial discrimination and apartheid, for the liberation OI all persone imprisoned or restricted for their opposition to apartheid, and for a peaceful solution based on the full application of human rights and fundamental freedoms to the inhabitants of the country as a whole.

2. The Security Council and the General Assembly have repeatedly reminded the South African Government that its policies and actions were in violation of the Charter and its obligations as a Member of the United Nations. They have also recognized that these policies and actions have created a situation which constitutes a grave danger to international peace and security. They have adopted a series of measures against South Africa to secure an end to apartheid. The General Assembly has also given a strong warning to the South African régime by rejecting the credentials of its delegation at recent sessions.

3. Moreover, in recent years, the white minority South African Government has, in violation of the principIes of the Charter and the :..'esolutions of the General Assembly and the Security Council, continued illegally to occupy the Territory of Namibia, for which the United Nations has assumed direct responsibility. Moreover, the régime has subjected the people of that Territory to apartheid and brutal repression. It has, in defiance of the United Nations, sent its forces into Southern Rhodesia and assisted the illegal racist minority régime in that Territory against which the Security Council hás adopted sanctions under Chapter VII of the Charter.

4. The present report outlines many violations of the prov~s~ons of the United Nations Charter by the white minority South African Government, as well as those of the numerous appeals of the Security Council and the General Assembly, during the quarter century of United Nations consideration of apartheid in South Africa.

II. VIOLATIONS OF THE CHARTER

5. Racial discrimination pervades the constitution, laws and regulations of South Africa. The successive Governments of South Africa have attempted to aggravate and entrench such discrimination, instead of putting an end to it as required by the United Nations Charter, despite repeated reminders by the principal organs of the United Nations.

6. The principIe of non-discrimination forms a fundamental part of the United Nations Charter and, as noted by the United Nations Commission on tlle Racial Situation in the Union of South Africa in 1955, is embodied in the very spirit of the Charter.

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7'~ This principIe is embodied in the Preamble 1/ of the United. Nations Charter reaffirming "fai.th in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women ••• I~ •

8. Chapter I, Article 1, of the Charter, states that one of the pr-Lnc í.pak purposes of the United Ne.tions is "to achieve international co-operation in ••• promoting and encouraging respect for hunlan rights and for fundamental freedoms íor all without distinction as to race, sex, language or religion!l~

9. Article 13 suaties that "the General Assembly shall initiate studies and make recommendations for the purpose of .•• assisting in the realization oí human rights and fundamental freedoms tor all without distinction as to race, sex, language, or religion".

10. Article 55 declar~s that "the United Nations shall promote .". universal .~ I respect for, and observance of, human rights a~d fundamental freedoms for all wi trml~t distinction as to rece , sex, language, or religion".

11. 80uth Africa has also contravened the solemn pledge in Pxtiele 56 of the Charter that Hall members pledge themselves te take joint and sepa.rate aetion in co-operation with the Organization for the aehievement oí" the purposes set forth in 11 Article 55 • Article 2, paragraph 4, provides that "all members Elhall refrain in their international relations fram the threat or use of force against the territorial integrity' ••• oí any State".

12. South Afriea has repeatedly threatened the territorial integrity of independent African StatBs on the ground that they had, assisted opponents of apartheid, though. such assistance has been provided in response to appeals by United Nations organs* It sent its security forces into Southern Rhedesia in 1967 in def'iance oí the administering Power (the United. Kingdom of Great Britain and Northern Ireland.), as well as of the United Nations. It has continued illegally to cccupy the Territory of Namibia after the termination of its mandate by the General Assembly in 1966 and threatened to resist by force any attempts to end. its illegal administration.

13. South Africa is also in violation oí its obligation under Article 2, par-agraph 5, which states that "all Members .•• shall refrain from giving assistance te any state against whieh the United Nations is taking preventive or

"4:./ It is iro?lic that Field ~arshal Smuts, then head of the Government of South Africa, had himself pressed for tihe inclusion of this important elause in the Charter. DurIng ··jha debates at Lhe United Nations Conference at San Francisco in 1945, he stated: .' .

"I would suggest that the Charter should contain at its very outset and in its preamble, a deelaration of human rights and of the connnon faith which has sustained the Allied peoples in their bitter and prolonged struggle for the vindication of t.hose rights ando that fa:~th. This war ••• has been a war of ideologies, of conflicting philosophies of life and conflicting faiths ••• We have fought for justiee and deeency and for the fundamental freedoms and rights of man') which a.re basic to all human advancement and progress and peac~." (See Dnited Nations Conference on Inte~national Organization, "101. I" p. 425). " . ,.- - ,-

-2- enforcement actíon. South Africa has maintained po1itical~ economic, military, and other relations with the i11egal racist minority régime in Southern Rhod~sia in contravention of the decisi9ns oí the Security Counci1, under Chapter VII of the Charter, imposing sanctions against that régime. As indicated ear1ier, the white m110rity South African Government has also sent security forces to aid. the Smith régime in its military actions against the black African majority struggling for f'reedom ,

14. And fina11y, as wi11 be shown in chapter IlIon vio1ations of Security Council resolutions, the South African régime is in clear an~ apen vio1ation of the binding obligation on Member States, provided under Article 25, "to accept and carry out the decisions of the Security Council in accordance with the present Charter".

,~ f 15. The General Assemb1y and the Security Council have repe~tedly warned the white minority South African Government that its policies and actions were inconsistent with the obligations of a Member State under the United Nations Charter.

16. In resolution 719 (VIII) of 11 November 1953, on the "treatment of'people 01" Indian origin in the Unien oí' South Africa", the General Assembl:r noted the failure of the South African Government to implement previous reso1utions on this matter, and its proposa1s to enact further discriminatory 1egislation, and cons í.dered that +ne actions of the South African Government "are not in keeping with its obliga ~vns and responsibilities under the Charter of the United Nations".

17• I.~ resolution 1016 (XI) of 30 January 1957, the Assemb1y depl.or-ed the fact that the South African Government "has not yet observed its obligat:l.ons under the Charter and has pressed forward with discriminatory measures which wou1d make the future observance of those obligations more difficu1t". It affirmed that perseverance in such discriminatory po1icies was inconsistent with the Charter; and cal1ed upon the South African Government to reconsider its position and revise its po1icies in the 1ight of its obligations and responsibilities under the Charter.

18. In resolution 1598 (XV) of 13 Apri1 1961, the General Assemb1y deplored the continued and total disregard by the South African Government of repeated requests and demands of the United Nations to reconsider or revise its racial po1icies or to observe its obligations under the Charter. It affirmed that "the racial policies being pursued by the Government of the Union of South Africa are a f1agrant violation of the Charter of the United Nations and the Universal Declaration of Human Rights and are inconsistent with the obligations oí a Member 8tate". -. .. 19. In resolution 1663 (XVI) of 28 November 1961, the Assembly strong1y deplored the continued and total disregard by the South African Government of its ob1igations under the Charter• .' . , i 20. In resolution 2054 A (XX) oí 15 December 1965, the Assembly expressed grave ,1 concern oVer the situation created by the implementation of the policies of aEartheid by the 80uth African Government "in violation of its ob1igations under the Charter of the United Nations and in defiance of the resolutions of the Security Counci1 and the General Assembly".

21. In reso1ution 2202 A (XXI) of 16 December 1966, the General Assemb1y condemned, "the po1icies of apartheid practised by the South African Government as a crime against humanity 11 •

-3- 22. In reso1ution 2547 B (XXIV) of 15 December 1969, the General Assembly condemned "the racist Government oí South Africa for its perpetuation and further intensification of the inhuman po.Lí.cy of apartheid. in complete and flagrant - - . vio1ation of the Charter of the United Nations and the Universa.l Deelaration of Human Rights and for its continuing ai'front and insult to the human conscience".

23. In resolution 2671 F (XXV') of 8 December 1970, the General Assembly expressed grave concern over "tihe aggrava.tion oí the situation .ín South Africa and in n southern Africa as a whole, because of the inhuman and aggressive policies of f apartheia pursued by the Government of South Africa in defiance of United Nations t resolutions, in violation of the Universal Declaration of Human Rights, and in , , VI contravention of its ob.Lí.gatrí.ons under the Charter of tbe United Nations". It U declared that "the policies of apartheid of the Government of South Afriea are a e negation of the Charter of the United Nations ffild constitute a crime against . , humanity" • G 24. p..t the same session, in resolution 261~6 (X'.lV) of 30 November 1970, the General e Assemb1y expressed alarm that South Afriea "blatant1y continues to pursue its t policy of racial discrimination and apartheid in flagrant violation of the purposes e and principIes of the Charter, the Uníversal Declaration of Human Hights and t re1evant United Nations resolutiollS"e It declared that "any State whose offícial r: po1icy or practice is based on racial discrimination, such as aparth~~~, c. contravenes the purposes and principIes of the Charter or the United Nations and e should therefore have no place in the United Nations". r I 25. In resolution 2647 (xxv) of 30 November 1970, the Assembly solemnly reiterated s Bits condemnation of all forms 01" racial discrimination wherever they may occur, 1 and particularly of apartheid, as a flagrant contradiction of the spirit and 'Ghe e letter of the Charter of the United Nations and the Universal Declaration of r Human Rights". It appea1ed "to the Governments of countries where forros of z-ací a.L € discrimin~tion stil1 persist and to the Governments which officially apply such t policies as apartheid to take wi.thout delay all the 1egislative, educational and s social measures necessary to end them and to ensure respect for human rights in accordance with the Charter". F 26. In reso1ution 2923 E (XXVII) of 15 November 1972, the Assembly condemned "the racist Government of South Africa for continuing and intensif,ying the imp1ementation of its ir.human po1icy of apartheid, and subjecting the opponents of r: apartheid to ruthles3 repression, in violation of its obligati.ons under the Charter C. I of the United Nations, thereby cz-eatIng a grave threat to the peace 11 • - , S

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I ~ _~ '.1 •. .._._..,.." ,_.. l...... __._... _.._....., III. VIOLATIONS OF SECURITY COUNCIL RESOLUTIONS ON APARTHEID

27. Since the Sharpevil1e massacre of 1960, the Security Counci1 has adopted a number of reso1utions dealing with the grave situation in South Africa, resu1ting from the po1icies of ~partheid. In these reso1utions, the Counci1 has ca11ed on the South African Goverr~ent to cease its discriminatory and repressive measures, i I which, it declared, are contrary to the provisions of the Charter and of the Universal Dec1aration of Human Rights, and i.n violation of that. country's obligations as a Member of the United Nations. . , 28. The whíte minority South African Government has either ignored the reso1utions of the Security Council er responded with the claim that the Counci1 lacked competence to discuss the matter. Only on one occasion, in 1960, did it respond by inviting the Secretary-General to visit South Africa. The visit and the consultations of the Secretary-General díd not bring about any agreement on means to ful.1.'i1 the purposes oí' tihe Security Council resolution.

29. Meanwhile, &s shown in the annua1 reports of the Specia1 Committee, it has continued in d.efiance of the relevant provisions of the Security Counci1 resolutions to enforc~ the po1icies of auartheid with ever greater ruthlessness. Defying the repeated requests of the Counci1 to refrain from execution of persons sentenced to death for acts resu1ting from their opposition to apartheid, and to 1iberate persons imprisoned, interned or subjected to restrictions for their opposition to apartheid, it has executed scores of persons and impriscned or restricted many hundreds of others for their opposition to apartheid. It has enacted stil1 further repressive 1egis1ation in an attempt to suppress opposition to those po1icies, and spurnecl the appeals of tq,e Security Council for a peaceful solution in accordance with the principIes of the Charter.

Resolution 134 (1960)

30. The Security Counci1 first considered the question of aEartheid in the aftermath of the shooting 01' peaceful African demonstrators at Sharpevi1le on 21 March 1960. On 25 March of that year, representatives of 29 Member States 2/ requested an urgent meeting of the Security Council to consider "the situation­ - ., arising out of the large-scale kil1ings of unarmed and peaceful demonstrators against racial discrimination and segregation in the Unian of South Africa". 3/ They considered that the situation had grave potentialities for internationa1

... fIi friction and was ene which endangered international peace and security.

~/ The delegations W0~e: Afghanistan, Burma, Cambodia, Ceylon, Ethiopia, Federation of Malaya) Ghana, Guinea, India, Indonesia, Iran, Iraq, Japan, Jordan, Laos, Lebanon, Liberia, Libya, Morecco, Nepal, Pakistan, Philippines, Saudi Arabia, Sudan, Thai1and, Tunisia, Turkey, United Arab Republic and Yemen. 1/ Official Records of the Security Council, Fifteenth Year, Supp1ement for January, Februa¡~ and March 1960, dc~ument S/4279 and Add.1.

-5-

t ¡ I \ _____ 1_~. ._. ".. __ ,,__ ._._~ ._.__ _ _.._. _.'.. __ _ r.,.t"~ ( tI. , 31. The representative of South Africa participated in the discussion in the \" Security Council, but claimed that consideration of the matter violated Article 2, paragraph 7, of the Charter. 32. In reso1ution 134 (1960) of 1 April 1960, the Security Council recognized that the situation in South Africa had led to international friction and, if continued, might endanger international peace and security. It called upon the South Aírican Government "to initiate measures aimed at bringing about racial harmony based on equality ~ •• and to abandon its policies of apartheid and racial discrimination". It also requested the Secretary-General, in consultation with

the South African Government, fito make such arrangements as would adequately help 1 " in upholding the purposes and principIes of the Charter and to report to the Security Council".

33. On 19 April, in pursuance oí the above-mentioned resolution, the Secretary­ General informed the Security Council that he had agreed to a suggestion put forward by the South African Government that preliminary consultations should take place in London and that his visit to South Africa should take place after the Judicial Commission investigating the Sharpeville incident had completed its inquiry. ~ It had b~en agreed that the consent oí the South African Government to discuss the resolution would not require prior recognition by that Government oí the authority of the United Nations. Accordingly the Secretary-General met with the South African Minister for External Affairs in London on 13 and 14 May 1960 for preliminary talks.

34. Subsequently, at the invitation of the South African Government, the Secretary-General visited South Africa between 6 and 12 January 1961 and met with the Prime Minister on six occasions.

35. In his report to the Security Council dated 23 January 1961, 5/ the Secretary­ General stated that "so far no mutually acceptable arrangement has-been f'ound"; The report also stated that the South African Government had decided to invite him to visit the Republic on some future appropriate time. No íurther visit took place, however.

Resolution 181 (1963)

36. The Security Council again took up the matter oí racial conflict in South Africa resulting from the policies oí apartheid in 1963 at the request oí 32 African States. By a letter oí 11 July 1963, these Aírican States requested an early meeting oí the Security Council to consider "th~ explosive situation" in the

.., . 4/ The Judicial Commission subsequently exonerated the police of any wrongdoing in their handling oí the matter. See, however, The Sharpevill~ J~ident and its International Significance by the Rt. Rev. Ambrose Reeves, United Nations (ST/PSCA/SER.A/5). 2/ Oííicial Records oí the Security Council, Sixteenth Year, Supplement íor J~nuar.y, February and March 1961, document s/4635, para. 9.

-6- Republic of South Africa resu1ting from the Government's p01icies of apartheid and its systematic refusa1 to comp1y with the United Nations resolutions on the question. §j 37. 1be Security Counei1 invited South Africa to participate in the discussion, but the Minister for Externa1 Affairs of South Afriea informed the Council on 31 July that his Government had decided not to partieipate in the Counei1's discussions of matters, whieh it eonsidered to be sole1y within the domestie jurisd.ietion of a Member State.

1 JO: 38. In res01ution 181 (1963), adopted on 7 August, the Seeurity Couneil expressed its regret at the failure of the 80uth Afriean Government to aecept its invitation to de1egate a representative to appear before it. It reiterated its eall to the South Afriean Government to abandon its polieies of apartheid and discrimination, and called upon the Government "te liberate all persons imprisoned, interned or H subjected to other restrietions for having opposed the poliey of apartheid • i 39. On 11 October 1963, the Seeretary-General reported to the Couneil that the 1: South African Government, in response to his request for information on the LI implementation of Seeurity Council resolution 181 (1963), had reiterated its position that it did not recognize the right of the United Nations to discuss the matter, as it felJ. within the domestie jurisdiction of a Member 8tate in terms of Article 2, paragraph 7~ of the Charter. 7/

Res01ution 182 (1963) 40. The Seeurity Counei1 again eonsidered the matter of South Afriea's racial polieies in November and Deeember 1963. In res01ution 182 (1963), unanimous1y adopted on 4 Deeember 1963, the Counei1 urgently requested the South Afriean Government to cease forthwith its continued imposition of diseriminatory and repressive measures; eondemned its non-compliánce with appeals eontained in the earlier reso1utions of the General Assembly and the Seeurity Counei1; and again ealled upon it to 1iberate al1 persons imprisoned, interned or subjeeted to other restrictions for having opposed the policy of apartheid.

41. In paragraph 6, the Seeurity Couneil requested the Secretary-General to establish a small group of reeognized experts to examine methods of resolving the present situation in South Afriea, through full, peaceful and order1y applieation of human rights and fundamental freedoms to all inhabitants of the Territory as a

.. 9: whole, regard1ess of race, colour or creed, and to eonsider what part the United Nations might play in the achievement of that ende In paragraph 7, it invited the South Afriean Government to avail itself of the assistance of this group in order .., . to bring about sueh peaceful and orderly transformation•

6/ Ibid., Eighteenth Year, Supplement for July, August and September 1963, document 8/5348. 7/ Ibid., Supp1ement for ,October, November and December 1963, doeument S/5438 and Add.1-6.

-'7- 1, 42. On 20 January 1964, the Secretary-Genera1 informed the South African Government of the appointment of a group of five experts 8/ and requested it to 1"i '. provide facilities for tlle Group to visit South Africa in-the discharge of its 1: responsibi1ities under the resolution of the Security Counci1. ~/

43. In a rep1y dated 5 February 1964, the South African Government characterized the reso1ution of 4 December 1963 as an "unpara11e1ed attempt at de1iberate interferenceil in the internal affairs of South Africa. The 1etter went on to state that the Government l1is not prepared to receive the Group of Experts" and t.hat. the main intent of the reso1ution was t.he "transformation" of the po1icies app1ied in South Africa. It c1aimed that the Security Counci1 reso1ution had been ",'" tab1ed with lVthe unconcea1ed aggressive int.ent oí undermining the sovereign rights, inc1uding the inherent right of se1f-defence, of a sovereign independent founder f Member of the United Nations". Against this background~ it c1aimed, the visit of 1/ the Group wou1d be a de1iberate attempt at interference in the interna1 affairs of ti . the Repub1ic. Therefore, it aaí d , any forro of co-operation with the Group was '":( "out of the question". 10/ \" ...•• \1 44. Thus, in effect, the South African Government rejected the reso1ution. Reso1ution 190 (1964)

45. In a 1etter dated 27 Apri1 1964, 58 Member States requested the Security Council to resume consideration of the serious situation in South Africa in the light of the report by the Secretary-General, dated 20 April, on the implementation of the previous reso1ution, the report of the Group of Experts 11/ and the new deve10pments in South Africa, particularly the imposition of the death penalty on a number of African polítical leaders and the trials of a number of others under 1aws providing for the death penalty.

46. These matters were considered by the Security Counci1 from 8 to 18 June of that year.

47. On 9 June, the Counci1 adopted reso1ution 190 (1964), iD which it urged the South African Government to renounce the execution of persons sentenced to death for acts resulting froro their opposition to the po1icy of apartheid; to end f'orthwith the "Rivonia tria1" 12/ of Mr. Nelson Mandela and other leaders then in

81 The Group was composed of Mrs. Alva Myrdal (Sweden), Sir Ed~ard Asafu-Adjaye (Ghana), Mr. Josip Djerdja (Yugoslavia), Sir Hugh Foot .. " (United Kingdom of Great Britain and Northern Ire1and) and Mr. Dey Ould Sidi Baba (Morocco) • ., ., 2/ Official Records of the Security Counci1, Nineteenth Year, Supp1ement fo~ April, May and June 1964, document S/5658 and Add.1-3. 10/ See ibid., sect. III. 11/ Ibid., annex. 12/ In 1963, 10 prominent 1eaders of the South African 1iberation movement werecharged in Pretoria under the "Sabotage Act" and the Suppression of Communism Act for acts arising from their leadership of/or association with the underground struggle against apartheid. Their trial became wide1y known as the "Rivonia trial" after the name oí the farm at which most of them had been arrested.

-8- progress; and te grant an amnesty to all persons already imprisoned, interned or subjected te other restrictions fer having opposed the policy of apartheid, and particularly te the defendants in the Rivonia trial.

48. In paragraph 3 of the resolution, the Council invited the Secretary-General "to follow closely the implementation of the resolution and to report thereon to the Security Council at the earliest possible date".

49. In carrying out the mandate entrusted to him, the Secretary-General addressed a communication to the Permanent Representative of South Africa on 9 June 1964,' 1 00" requesting him to communicate the Security Council resolution urgently to his Government and to inform the Secretary-General at the earliest possible date oí the action taken by it in accordance with the terms of the resolution.

50. In a reply dated 13 July 1964 to the Secretary-General, the Permanent Representative of South Africa stated that his Government regarded the Security Council resolution as constituting intervention by the United Nations in the judicial process of a Member State. He denied that the defendants in the Rivonia trial had been prosecuted "for having opposed the policy of apar-bhe'íd" and claimed that there was "no person, (possibly regarded by some members of the Security Council as falling within the category of 'political prisoners')" then under sentence of death in South Africa, who had not been convicted of participating in, organizing, or complicity in the killing of another persono 13/

51. Meanwhile, on 12 June 1964, eight of the accused in the Rivonia trial were sentenced. to life imprisonment.

Resolution 191 (1964)

52. On 18 June 1964, the Security Council adopted resolution 191 (1964), which, inter alia, endorsed and subscribed to the m~in conclusion of the Group of Experts that "all the people of South Africa should be brought into consultation and should thus be enabled to decide the future of their country at the national 1eV'el". It requested the Secretary-General to consider what assistance the United Nations might offer to facilitate such consultations.

53. It also invited the South African Government to accept the main conclusion of the Group of Experts, to co-operate with the Secretary-General and to submit its views to him with respect to such consultations by 30 November 1964.

t¡ 'ff' 54. In this same resolution, the Council also urgently reiterated its appea1 to the South African Government lito liberate all persons imprisoned, interned or .. ... subjected to other restrictions for having opposed the policies of apartheid". Specifically, in paragraph 4, the Council urgently appealed to the South African Government:

"(a) To renounce the execution of any persons sentenced to death for their opposition to the policy of apartheid;

13/ Official Records of the Security Council~ Nineteenth Year, Supplement for July-:-Augus~ and September 1964, document S/5817.

-9- ¡ ¡. !y ¡,: "(b) To grant immediate amnesty to all persons detained or on trial, as ¡',t C' . well as clemency to all persons sentenced tor their opposition to the I /. ¡ . Government's racial policies; r:¡ • >1:; ~-'i I "(c) To abolish the practice oí imprisonment without charges, without l;f- access to counsel or without the right oí prompt trial." {. ,\. ¡!: 55. In a letter transmitted by the Permanent Representative on 16 November 1964, l' l' the South African Foreign Minister stated that:

"It is difficult for the South African Government to conceive of a more far-reaching example of attempted intervention in matters falling within the domestic j~risdiction of a sovereign Member of the Uuited Nations than is represented by the terms of the resolution in question. What is in etfect sought is that a Member State should abdicate its sovereignty in favour of the United Nations." 14/ , I \, 56. He did not respond to the specific requests in the resolution. r ' h¡ \' 1, Resolution 311 (1972) 1, ' ¡. 57. Final1y, in reso1ution 311 (1972) of 4 February 1972, the Security Counci1, t> at its l639th meeting he1d in Addis Ababa, deplored the persistent refusa1 of the I t . j; South African Government to implement its resolutions and urgent1y called on it to re1ease all those persons who were uimprisoned, interned, or subjected to ¡. other restrictions as a resu1t oí the policies oí apartheid:'. ,;, 58. The South African Gover~ent has not responded to this reso1ution. l.·r..•.•. j: 1: Ut.\

.. ~

1}jj Ibid., Supp1ement_ for October, November and December 1964, documerrt s/6053, para. 5.

-10-

I .. ~...... I ....--~:=.·. IV. VIOLATIONS OF GENERAL ASSEMBLY RESOLUTIONS ON APARTHEID

A. Introduction

59. The racial p01icies of the Government of South Africa have been under discussion in the General Assemb1y, in one form or another, since the second part of the first session in 1946. The matter was then raised by the Government of India in the form of a comp1aint that the South African Government had enccted discriminatory 1egis1ation against South Africans of Indian origin in violation of

'.. agreements between the two Governments. 60. In 1952, the wider question of ~partheid (racial separation) was also p1aced on the Assemb1y's agenda at the request of 13 delegations 15/ under the title: "Question of race conflict in South Africa resulting from the policies of apartheid of the Governmerrt of the Union o:' South Africa". The two r'eLatred questions continued to be discussed as separate agenda items until 1962, when they were combined v.nder the title: "The po1icies of apartheid of the Government of the Repub1ic of South Africa".

B. Treatment of peop1e of Indian and Indo-Pakistan origin in South Africa

61. As noted above, the tre~tment of peop1e of Indian or1g1n in the Unian of South Africa was first considered by the General Assembly during its first session in 1946, in the form of a complaint to the Assembly by the Government of India concerning the treatment of Indians in the Union. The application submitted by the Government of India concerned a number of racial1y-discriminatory ~easures enacted against the people of Indian origin, particularly the proposed passage of the Asiatic Land Tenure Act ("Pegging Act n), 16/ which restricted their rights to own Land,

62. The 80uth African Government proposed to the Assembly t:b~t the International Court of Justice be asked for an advisory opinion on whet~er the matter was essentia11y one within the domestic jurisdiction of the Union Government. The Assemb1y rejected this proposa1. .. t 63. Instead, the Assemb1y, in reso1ution 44 (I) of 8 December 1946, took note of the application submitted by the Government of India and requested the Governments ... ;¡ •• of India and the Union of South Africa to report to it at its next session on the measures taken to bring the treatment of Indians in South Africa in conformity with the internationa1 obligations under the agreements conc1uded between the two Governments and the re1evant provisions of the Chal~er. _.--- 15/ The de1egations were: Afghanistan, Burma, Egypt, India, Indonesia, Iran, Iraq,Lebanon, Pakistan, Phi1ippines, Saudi Arabia, Syria and Yemen , ~/ Act No. 53 oí 1949.

-11- 64. The reports submitted by the Governments of India and South Africa to the Assembly at its second session indic~ted that there had been no progress. In its report dated 15 September 1947, the South African Government claimed that the distinctions which were being drawn in South Africa on the basis of race were intended for the development of the races concerned and were fully in accordance vnth the provisions of the Charter (A/387).

65. By resolution 265 (III) of 14 May 1949, the General Assembly invited the Governments of India, Pakistan 17/ and the Union of South Africa "to enter into discussion at a round·~ab1e conterence, taking into consideration tbe purposes and principIes of the Charter of the United Nations and the Universal Dec1aration of Human Rights".

¡i 66. Preliminary talks were he1d by delegates of the tihree countries in Cape Town 1'. in February 1950, and it was agreed to hold a round-table conrerence, The leader of the South African delegation asserted that these discussions were not being he1d on the basis of United Nations reso1utions, but solely as a result of personal contacts estab1ished between the Prime Ministers of India and South Africa in London,

67. Meanwhi1e, the South African Government enacted the Asiatic Land Tennre (Amendment) Act 181 which for the first time placed restrictions on "Asiatics" with respect to pub1ic trade, and announced its intention to introduce legislation (the Group Areas Bi11) 19/ to provide for the division of all land in the Union for the exclusive occupation 01" control or both by the different racial groups and prohibited the fresh acquisition of owne rshdp by "disqualified persons",

68. The Government of India, in en aide~mémoire dated 5 April 1950 to the Department of Externa!. Affairs in Cape Town, requested the Union Gover~ent to with.lJ.old the extension of the Land Tenure· Act to the Cape Province and to refrain from introducing tbe Group Areas Act in Par]iament. It stated that these measures would add to the disabilities of Indians, matters which were on the agenda proposed by the round-tab1e conference. 20/ The Union Government turned down this request on 20 April. 21/ -

69. Af~er the passage of the Group Areas Act, the Government of India informed the South African Government that if the round-table conference were to be he1d, it "Tould be "one-sided". It ~ therefore, felt constrained to reaffirm its ~ contention that no useful purpose would be served by its participation in the \.'...•.. l" f . conrerence, At the request of the Governrnent of India, the matter was IncLuded in ~ ; ., the agenda of the next session of the General Assembly.

ti 9· 17/ After its admission to the United Nations on 30 September 1947, the Goverrument of Pakistan associated itse1f with the complaint origina11y submitted by the Government of India. 1§! Act No. 53 of 1949. ±21 Subsequently enacted as Act No. 41 of 1950. g21 See A/1357, appendix xv. -21/ _.-Ibid., appendix XVI.

-12- •••

70. In resolution 395 (V) or 2 December 1950..1. the General Assembly stated that a policy of '" racial segregation t (apartheia.) IWF1'§../ necessarily based on doctrines of racial discrimination". Irhe resolution reiterated the recommendation that a round-table conference be held•. It further recommended that, in the event of failure of the Governments to hold a conference or reach agreement, a commission of three members be set up to assist the parties in car!ying through appropriate negotiations.

71. The South Africen Government refused to ac~ept General Assembly resolution 395 (V) as a basis for a round-table conference. In a letter dated 7 March 1951 to the Secretary-General, the Deputy Permanent Representative of South Africa stated that the resolution was "unacceptable and ••• the matter concerned is outside the competence of the United Nations". The letter added that "the Union Government are further unable to accept that part of the resolution relating to the establishment of a three-member commission". 22/ It reiterated the Union Government's willingness to participate in a round:table conference but claimed that the obstacles to the convening of the conference did not lie with the Union.

72. In General Assembly resolution 395 (V), as well as in Assembly resolutions 511 (VI) and 615 (VII), and 719 (VIII), the General Assembly also called upon the Government of South Africa to refrain from implementing or enforcing the provisions of the Group Areas Act. Nevertheless, the South African Government proceeded to ,'1 promulgate proclamations under the Act and to order their enforcement. 1

73. In resolution 511 (VI) of 12 January 1952, the General Assembly reaffir.med the recommendation of resolution 395 (V) that a three-member commission be established and further requested the Secretary-General, in the event of failure to establish such a commission, to lend his assistance to the Goverr~ents concerned and, if necessary, to appoint an individual who would render any additional assistance deemed advisable.

74. By a letter dated 22 February 1952 addresséd to the Secretary-General, the Uníon Government indicated that it was not able to accept the terms of the resolution on the grounds that it constituted interference in a matter which was -J essentially within the Union's domestic jurisdiction. It expressed readiness to participate in a round-table conference on the basis of the formula agreed to at Cape Town in February 1950.

75. In resolution 615 (VII) of 5 December 1952, the General Assemb1y established the United Nations Good Offices Commission consisting of three members appointed

by the Pres í denb of the General Assemb1y. 23/

76. The Committee was to arrange to assist in negotiations between the and j1 .' Governments of the Union of South Africa the Governments of India and Pakistan "in order that a satisfactory solution of the question in accordance with the

m See A/1787. 23/ The President of the General Assemb1y, at the 41lth p1enary meeting, on 21 December 1952, announced that he had appointed Cuba, Syria and Yugoslavia to serve on the Commission.

-13- ) -\-, , ~ ~ '·m-~~~\;;;,,~~·'~""r~IJ·-~ ~.~~\~K_- ..,-.- _. -,.,.-, " .., .. - .-- 1 i I1i ,j Purposes ar... J. Prin:iT)les of the Charter and the UniversaJ. Declaration of Human ¡; 8 ;; Ri ghta may be achí eved", " t , S 77" The Comm.ission reported to the General Assembly at its eighth session, that, N "in view oí' the response of the Government of the Uníon of South Africa!) it has been unable to carry out its task to arrange and assist in negotiations between 8 the Governments concerned" (A/2473). f e ~ '78 0 The South African Government thus refused to malee use of' the Good Offices , A Commis~ion or to utilize any of the alternative procedures for the settlement of the problem, as recommended by the four previous resolutions of the General B Asse~bly. On the other hand, it continued to implement the provisions of the Gro~p Areas Act in contravention of spec~fic appeals by the General Assembly, and 1 even proceeded with further 1egislation designed to prejudice the rights of tE people of lndian origin in the Union. -241 r 79. In resolution 816 (IX) of 4 November 1954, the General Assembly noted the report of the United Nations Good Offices Commission 25/ and suggested that the Governments of India, Pakistan and South Africa shouldseek a solution to the problem by direct negotiations. It suggested, moreover, that the parties concerned should designate a Government, agency or person to f.'acili'tate contacts between them and assist them in settling the dispute and that, if agreement on the suggestions had not been reached within six months, the Secretary....Gener-al, should designate a person for the above purposes a

80. The Secretary-Genera1 submitted a report to the General Assembly at its tenth session on the attempts to reach an agreement between the parties pursuant to paragraph 5 oí General Assembly resolution 816 (IX). 26/ The report stated that the negotiations envisaged in the res01ution were not pursued.

81. The South African Government withdrew its delegation from the tenth session of the General Assemb1y, on the grounds that the item relating to its racial p01icies had been placed on the agenda over ItS objection. When the item was again included in t.he agenda of the eleventh session of the General Assemb1y, the South African ("<' .~.=."ation again withdrew in protest and the South African Minister for External AI s: airs announced that his Government would in future maintain only token representation at the meetings of the General Assembly and at United Nations Headquarters.

82. Despite the absence of 'the South Aí'ricen delegation, the General Assemb1y considered the item of South Africa' s treatment of people of Indian origin ando, un . • 14 December 1955, it adopted resolution 919 (X), in which it once again urged the parties to pursue negotiations and invited them to report, as appropriate, either joint1y or separately, to the Assembly at its next session. . ..

241 See, for exampf,e ~ the Immigration Regulation Amen.' '<:3 of 1953.

25/ 9fficial Record:s of the General Assembly , Nin~9 .,_:/1' ':'11 document A/2723. g2! .!bid., T?:lth Session, An~exes, document A!3001.

-1,4- ·~~r··~:I:.'.--~t~"'llli·in"4P'5'.· .'.,...... - .'. . , ~'filil!\i.~:!/!if¡,~?\íih'!!~~·"~::~;~~·fi.,'"'0~.~__Jl1J_••!~._IlI.lIW_•• ~,~, ml8lIIl1 _

1I ¡' ¡¡ 83. The Governments of India and Pakistan duly submitted reports requested under that reso1ution and reiterated their readiness to pursue negotiations with the South African Government in accordance with the expressed desire of the United Nations. There was, however, nd response froro the South African Government.

84. The Assemb1y, therefore~ in reso1ution 1015 (XI) of 30 January 1957, noted this fact "with regret" and appealed once again to the South African Government to co-operate. It reiterated its invitation to the parties to report to the General Assemb1y either jointly 01' separatelYe

85. These appeals were repeated in General Assembly reso1utions 1179 (XII) of 26 November 1957, 1302 (XIII) of 10 December 1958, 1597 (XV) of 13 April 1961 and 1662 (XVI) of 28 November 1961. In its resolution 1302 (XIII), the Assembly made a si~nificant move towards conci1iation by inserting in its appeal to enter into negotiations the following c1ause: , I ¡ "••• with the express declaration that such negotiations would not in , , any way prejudice their own position /the Governments of India 01'. PakistaB!- ¡ . 01' the position taken by the Government of the Unian of South Africa regarding \' .

\~. 1, their respective juridical stands in the dispute". r 1- i (~ 1'< 86. Pursuant to these appeals, the Governments of India and Pakistan, on a number ¡ '. of occasions, communicated to the South African Government their readiness to enter ¡; into negotiations, but agadn there was no response. Nor did the South Afri.can b ! Government submit reports to the General Assembly in accordance with the relevant p clauses of the above-menticned resolutions, as did the Goverrur.ents of India and Pakistan.

87. In separate letters dated 17 August 1962, the Governments of India and Pakistan stated that the South African Government had not given any ina.ication that it was prepared to comply with the appeals of the... United Nations. They requested that the question be included on the agenda of the seventeenth session oí' the General Assembly as part (b) of the item entitled: "The policies of apartheid;. of the Government of the Repub1ic of South Africa".

c. Question of race conflict in South Africa

88. An item entitled "Question of race conf1ict in South Africa resulting from the policies of aparthei~ of the Government of the Union of South Africa~t was included -] · in the agenda of the seventh session of the General Assembly, at the request of 13 delegations. E-~/ They declared that the race conflict result:i.ng from South I Africa's policy of apartheid was creating an explosive situation that was a threat . \ .. to international peace and that the policy was a flagrant violation of the basic principIes of human rights and fundamental freedoms enshrined in the Charter of the United Nations.

27/ A/2l83. The delegations were: Afghanistan, Burma , Egypt, India, Indonesia, Iran, Iraq, Leuanon, Pakistan, Philippines, Saudi Arabia, Syria and Yemen.

-15- 89. They drew ,t1ttention to the Campaign of Defiance of Unjust Laws, Lamched on 26 June by the African National Congress, the South African Indian Congress and other organization, in which aYer 8,000 persons were imprisoned tor contravening selected discriminatory laws and regluations, in order to draw attention to their plight. The South Africen Government had countered by harsh and repressive measures and the passage of still more arbitrary legislation to 011tlaw passive resistance.

90. The South African delegation attempted to challenge the competence of the Assembly to discuss the matter and, to that end, it introduced a motion which would have had the Assembly declare that, in view of the provision of Article 2, paragraph 7, oí the Charter, it had no competence to discuss the item. The motion was rejected by the Assembly. ¡ I o 91. After considering the itero, the Assembly adopten resolution 616 A (VII) of I 5 December 1952, which established a three-member Commission "to study the ra.cial situation in the Union of South Africa in the light of the Purposes and PrincipIes (Jf the Charter, with due regard to the provision of Article 2, paragraph 7, as well as the provisions of Article 1, paragraphs 2 and 3, Article 13, paragraph 1 b, Article 55 ~ and Article 56 of the Charter, and the resolutions of the United Nations on racial persecution and discrimination, and to report its conclusions to the General Assemb1y at its eighth aessí.on",

92. In paragraph 2 of that reso1ution, the Assembly invited the Union Government to extend its full co-operation to the Commission.

93. The Commission stated in its report to the General Assembly at its next session that, despite every precaution ta~en by members of the Commission to ensure that the General Assemb1y's wishes regarding the co-operation of the Union Government were not frustrated, the results were negati.ve , 28/ After unsuccess rul, informal representations made through the Permanent Representative of the Union Government to the United Nations, the Commission had decided to approach the Government directly, whereupon it received a cabled reply from the South African Secretary of Foreigh Affairs dated 26 June, which read, in part, as follows:

n~.e Since the Union Government ha.ve consistently regarded. question of Union's racial po1icy as domestic matter they regard reso1ution 616 (VII) as unconstitutional and cannot therefore recognize the Commission established thereunder." 29/

94~ In resolutions 719 (VIII) of 11 November 1953 and 820 (IX) of 14 December 1954, the General Assembly noted the Government's refusal to co-operate with the Commission "with regret".

95. A further attempt to obtain the co-operation of the South African Government failed when the Chairman of the Commission, Ambassador Herman Sant~ Cruz of Chile, was denied a personal visa to enable him to visit South Africa, despite his

r.. ¡ 281 Officia1 Records of the General A~~mbly, Eighth Session, S~p~lement No. l6(Ai2505 and'Add.l), paras .. 39-45. 29/.. Ibid., para. ,, _ 43. i l, ~ -16-

i 1", <'. " 1.." stated intention to gather impressions, but not to hold hearings or to make any officia~ or public inquiriese A communication from the Charge d'Affairs of South Africa at Santia.go pointed out the Union Governraerrt ! s view that:

,r/His7 application /could not7, in the nature of thi.ngs, be divorced fl"om /his7menfuership or-a Commission whose terms of reference specifically lincluded7 investigation into a matter which ¡;Tas/of exclusively domestic concern to the Union of South Africa.. n 30/ .-- I I , 96. The communication went on to sa.y that it was felt that acceaedon to his I request would im.ply a tacit abrogation of Article 2, par'agraph 7" of the Charter.

9711 In resolutions 721 (VIII):t 820 (IX) and 917 (X), adopted in 1953, 1954, and 1955, respectively, the General Assembly expressed ita regret that the South

African Government had refused to co.....operate with the Commí ss í on , a:nd invited that Government to reconsider its position in the ligbt of the principIes of the Charter and to take into consideration t he suggestions of the Commission for a peaceful settlement of the problem.

98. The South African Government, however, refused to co-operatie with the Commission and rejected its reports as biased. 31/ As on earlier occasions~ its representatives continued to argue that the matter was one which fe1l within the exclusive jurisdiction of the State and that the United Nations was 'barred under Artic1e 2, paragraph 7, of the Charter from considering the question.

99~ In resolution 820 (IX) of 14 December 1954, the General Assembly invited the South African Government "to reconsider its position. in the light oí the high principIes expressed in the United Nations Charter, taking into account the p.Ledge of all Member States to respect human rights and fundamental freedoms without distinction as to race; and further taking into account the valuab1e experience of other multi-racial societies as set forth in chapter VII oí the Commission' s reportu.

100.. The Assembly also invited the South African Government "to take into consideration tbe suggestions of the Commission for a peaceful solution to the racial problem, namely, those detai1ed in paragraphs 370 and 383 of its .. a report tt l) ,32/

101. In resolution 91'7 (X) oí 6 December 1955, the General Assemb1y reca.lled ita declaration, as expressed in section E of resolution 377 A (V) of 3 November 1950,

~/ Ibid., para. 45. 31/ The Commission was discontinued on 6 December 1955, when a propasa! to contiñüe its work failed to receive the necessary two-thirds majority vote in the G~.neral Assembly. 32/ Off'icial Records of the General Assembly" Hinth Seasion. Suppl~~ment No • .2­ (A/27I9L,

1, l.·.· -17- ~ ., ~ ! \ "j' ~... ,r'< ,.

that "a genuine and 1asting peace depends al.so upon the observance of all the pril1ciples and purposes established in the Charter of the United Nations, upon the implementation of the resolutions of the}eneral Assembly and the principal organs of the United Nations intended to achieve the maintenance of international peace and security and especially upon respect for and observance oí' human rights und fundamental freedoms for all".

102. In the same resolution, the Assembly reiterated its former resolutions 103 (I) ¡, l oí 19 November 1946 and 616 B (VII) of 5 December 1952, in which it had dec1ared, tI 1', ! inter a¡ia~ "that it is in the higher interests of humanity to put an immediate ': .' , 1 , \ end to religious and so-called racial persecution and discrimination, and that 1 governmental policies 'which are designed to perpetuate or- increase discrimination are inconsistent with the pledges of the Members under Article 56 of the Charter". , , 103. In resolution 1016 (XI) oí' 30 January 1957, the General Assemb1y called upon the South African Government "to reconsider its position and revise its policies in the 1ight of its ob1igations and responsibilities under the Cbarter and in tbe 1ight of the principIes subs~ribed to and the progress achieved in otber contempor-ary multi-racial societies".

104 .. Further, it invited the Government "to co-oper-at,e in a constructive approach to this question, more parbí.cul.er'Ly by its presence in the United Nations", ')3/ and requested the Secretary-General to communicate with the South Africen Government to carry forward the purposes of the present resolution.

105. In the absence of a response from the South African Government, the General Assembly, in resolution 1178 (XII) of 26 November 1957, appealed to it "in the interests of the common observance by Member States of the high purposes and principle~ enshrined in the Charter of the United Nations, to which the.Government of the Union of South Africa has also subscribed end is as much committed as any other Member, to revise its policy in the light of those purposes and principIes and of world opinion and to inform the Secretary-General of its response".

106. Again, in resoluticn 1248 (XIII) of 30 October 1958, the Assembly expressed its "regret and concern" that the 80uth Africen Government did not respond to its Ir appeals to reconsider governmental policies "which impair the right of all racial li 1; groups to enjoy the same rights and fundamental freedoms". ! r 107. In its resolution 1598 (rv) of 13 April 1961, the Assembly reminded the South African Government of the requirement of Article 2, paragraph 2, of the Charter ! ~ that all Members shall fulfil in good faith the obligations assumed by them under I 1 the Chart.er and called upon it once again to bring its policies and conduct into conformity with its obligations under the Charter. 1

4( 11 . 108. In its resolution 1663 (XVI) of 28 November 1961, after the Sharpeville I massacre, the General Assembly dep10red the South African Government's failure to comply with its repeated requests and demands. It strongly criticized that Government's continued end total disregard of its obligations under the Charter

3V As noted earlier, the South Africen Government withdrew its delegation from the eleventh session of the General Assemb1y and maintained only token representation at the United Nations.

-18- ¡; r. 1,' I ¡f' in its "determined aggravation oí racial issues by ever-increasing discriminatory laws and measures and their ruthless enforcement accompanied by vio1ence and [. bloodshed". ¡ 1 l ~ D. Policies of apartheid of the Government of the Rep~blic of South Africa

109. During the seventeenth session of the General Assembly, the two above­ mentioned items were considered together under the tit1e "The po1icies of apartheid of the Government of the Republic of South Africa". The sponsors 34/ of the item , . stated that, despite the adoption of General Assembly reso1ution 1663 (XVI), no change in the po1icies and actions of that Government had been achieved. Those l' policies, they said, had been continued with increasing ruth1essness and disregard r{" , , for both world opinion and of successive United Nations resolutions. 35/ 110. Since 1962, the General Assembly has repeatedly deplored and condemned the South African Government for its refusal to comply with the resolutions of the Security Council and the General Assembly; its continued implementati?n of aparth~ and intensification of racial oppression; its resort to increasingly ruthless measures to suppress opposition to apartheid, instead of 1iberating opponents of apartheid from imprisonment and other restrictions; and thereby aggravating the situation in South Africa and in southern Africa as a whole. It devoted its attention mainly to a series of measures for international action towards the elimination of apartheid, rather than to further appeals t o the South African Governmerrt ,

111. The South African Government, however, remained as intransigent as ever.

112. For that reason, by resolution 1761 (XVII) of 6 November 1962, the General Assembly established a Special Committee (now known as the Special Committee on Apartheid) to keep the racial policies of the South African Governmerrt under constant review and requested all Member States to help it to accomplish its task. l 1\ 1/ 113. On 2 April 1963 the Chairman of the Special Commit1.iee wrote te the South I 51 1,1 African Mi.nister for Foreign Affairs, informing him that the Committee had begun ji its work and added the fol1owing: 11 11 I! "Being anxious to fulfil the task assigned to it under tlhe above-mentioned 11q resolution to the best of its ability and with the utmost objectivity and tI effectiveness, the Special Connnittee has asked me to invite the Government of the Republic of South Africa to lend its co-operation and assistance to the Committee in the accomplishment of this task. To that end, the Special Committee would be glad to know, as soon as possi'ble, the forro and manner in which this co-operation and assistance might be proví ded" (A/AC.115!L.5). ---_.'- 34/ Afghanistan, Burma, Egypt, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, Philippines, Saudi Arabia, Syria and Yemen. 35/ In 1962, the Republic of Soutb Africa enacted a new law, entitled "The General Law Amendment Acb ", which became known as the "Sabotage Act ", This Act further added to existing bitterness and tension between the various racial groups in South Africa.

-19-

1\

-J-~~-" =:-~-~::;:2:::::~~. ,_":";-- ~ ..~.. ~. -.-==-=--~= ;_":::'''=:-::':'.;:G.c:':::::::::¡:::_ii!.:::,_=:=~::: :::,:':c..__:::=:.. ~" m._.. ".._~ ,_ . ._ _ "." "'",, . 114. By a letter dated 15 April 1963 addressed to the Secretary-General, the Permanent Representative of the Republic of South Africa conveyed a message from the Minister for Foreign Affairs requesting that the Chairman oí' the Committee be informed that the South Africen Government regarded the adoption of General Assembly resolution 1761 (XVII), inc1uding the establishment of the Special Committee, as contrary to the provisions of the United Nations Charter and that it was accordingly unable to lend its co-operation and assistance to the Committee in the accomplishment of its task.

115. In October 1963, Mr. Nelson Mandela and 10 other leaders of the people we!"e charged under the repressive so-called security laws of South Africa, particularly the "Sabotage Act" of 1963. 36/ This tria!, known as the "Rivonia trial", led to the adoption by the General Assembly of r~solution 1881 (XVIII) by a vote of 106 in favour, with only South Africa voting against. In that resolution, the f General Assembly condemned the South African Government for its failure to comply í' with the resolutions of the General Assembly and the Security Council, and called /;' for an end to the repression of persons opposing apartheid. The Assembly requested \,',:,',;rl the South Africen Government to abandon the arbitrary trial in progress end \<::¡ "forthwith to grant unconditional release to all political prisoners and to all persons imprisoned, interned or subjected to other restrictions for having opposed the policy of apartheid". The Assembly also took note of the reports of the r Special Committee on the Policies of Apartheid 37/ which stressed the fact that \' "the harsh repressive measures instituted by theGovernment of South Africa !í frustrate the possibilities for peaceful settlement, increase hostility among the ! 1, racial groups and precipitate violent conflict". i; ! 116. Again, in resolution 2671 F (XXV) of 8 December 1970, the General Assembly 1: ¡' called upon the South African Government "to end all repressive measures against African patriots and other opponents of apartheid and to liberate all persons [ imprisoned, interned or subjected to other restrictions for their opposition to ¡ apartheid"• 117. In reso1ution 2923 E (XXVII) of 15 November 1972, the General Assemb1y demanded that the South African Government "repeal all repressive laws, regulations and proclamations used te persecute persons opposed to the po1icies of apartheid ¡\, < and immediately re1ease all those imprisoned, detained or restricted for their opposition to aparthE;id".

118. Finally, in reso1ution 3055 (XXVIII) of 26 October 1973, the Assembly again called upon the South African Government to grant "forth1vith" unconditional release to all persons restricted for their opposition to ~artheid~

119. In a letter dated 12 June 1974 addressed to the Secretary-Genera1, the South African Foreign Minister responded as fo110ws:

"This reselution was adopted in connexí.on with an. item whí ch touches upon South Africa t s domestic affairs. It I s , therefore, contrary to the

~/ Act No. 76 of 1963, sect~ 21. 37/ Q.fficia1 Records of the General Assembly, ]!:ishteenth Session, Ann~,~~, addendum to agenda item 30, documents A/5497 and Add~l.

-20- proV1Slons of Article 2, paragraph 7 of the United Nations Charter, which prohibits the Organization from intervening 'in matters which are essentially within the domestic jurisdiction of any State'.

"The resolution is in any event based on a total misconception and I wish to place on record that no one has ever been imprisoned, interned or otherwise restricted for his opposition to my Government's policies. There are, in other words, no political prisoners in South Africa, as the title of the resolution suggests ;" '.

120. Thus, South Africa has remained intransigent despite the nUllierous resolutions

.i of the General Assembly recognizing that the situation in South Africa is a matter I of grave international concern, and the strong warnings administered by the Assembly in its rejection of the creditionals of the South African délegation I ' since 1970.

•

-21- PART TWO Report on arbitrary laws and regulations enacted and appli.ed by the South African r~gime to reEress the legitimate struggle for ! f'reedom*

CONTENTS I 1 \'. Parasraphs Page ¡. ., I " t '1 r LETTER OF TRANSMITTAL • • • •• •• • • • •• • • • · ... .. • • • 24 r¡~ , ¡: REPORT OF THE SPECIAL COMMITTEE ON APARTHEID •••••• CI • 25 r' 1 - 9 t , L Annex r· ANNEX Page \ . REPRESSION OF THE LEGITI~~TE STRUGGLE FOR FREEDOM IN SOUTH AFRICA · • •• 27 \' l. INTRODUGrION • • • • • •• • r 8 • • • • • • •• • • • • 1 - 5 28 \. 11. CLASSIFICATION OF LAWS AND REGULATIONS ••• •• • • • • 6 - 249 30 A. Laws and regulations restricting the franchise and political action. •• • • • • • • • • ••• • • 8 - 63 30 l. Promotion of Bantu Self-Government Act • • • • 11 - 12 31

¡: 2. Separate Representation of Voters Act. • •• • 13 - 16 31 32 3. Electoral Consolidation Act. • • " • • • • • • 17 - 18 4. Prohibition of Political Interference Act. • • 19 - 20 3~ 5. Suppression of Communism Act • • •• ••• •• 21 51 33 6. Unlawful Organizations Act • • • • ••• • • • 52 57 40 7. Affected OrGanizations Act • • • • • • • • • • 58 - 63 41 .. B. Laws and regulations restricting speech, press and petition. • • • •• • • • • • • • • • • • • • • 64 - 97 42 l. Suppression of Communism Act • • • ••• • • • 66 - 70 42 "

2. Riotous Assemblies Act • o • • • • • •• • • • 71 - 74 43 3. "BOSSI! Act • •• •• • • • •• • • • • • • • • 75 - 76 44 4. Newspaper and Imprint Registration Act • • • • 77 - 79 44 5. Publications and Entertainment Act ••• ••• 80 - 84 45

* Previously issued under the symbol A/9781.

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. ~I' .' .. 0' CONTENTS (continued) Paragraphs Page

6. Custoros and Excise Act • • ••• • • • • • • • • • 85 - 86 45

7. Official Secrets Act > • •••••• • • • • • • • 87 - 92 46

8. Defence Act. • • ••• • •• • • •••• 93 97 47 ~¡ • • • • • - , ! i' C. Laws and regulations restricting strikes, demonstrations I and meetings • • • •• ••• •• • • • ••• • • • •• 98 - 134 47 I 1 ¡ l. Industrial Conciliation Act. • • • • • • •• • • • 100 48 r 2. Bantu Labour (Settlement of Disputes) Act. • • •• 101 - 103 48 '1 I Suppression of Communism Act 108 {1 3. • • • • • ••• • • • 1')4 - 49 1 \r, 4. General Law Further Amendment Act. 112 \' • •• • • • • • 109 - 50 ¡: .! 5. Gatherings and Demonstrations Act~ • • • • • • • • ll~ - 117 50 1.l. 6. Riotous Assemblies Act 118 134 51 r ••• • •• • • •• • ••• - l 1 L D. Laws and regulations restricting passive resistance and non... compLí.ance . • • • • • • •• •• • • • • •• • • 135 - 144 :5 r [ Criminal law Arrendment A~t • • .. • • • • 137 144 , • • •• • • • - ::>5 l f E. Laws and regulations restricting the use of force • • 145 ~ 207 56 !~ h l. Suppression of Communism Act • • • • • •••• • • 147 - 154 57 t, 1, I 2. "180-Day Law" (Criminal Procedure) Act · • • · • • 155 - 164 58 I 3. General Law .Amendment Act. • • • • • • • • • • •• 165 166 60 4. "Sabotage Act" (General Law .Amendment Act) ••• • 167 - 175 60 5. Terrorism Act. •• • • • • •• • • • • • ••• • • 176 - 199 62 6. Pub1ic Safety Act. • •• • • • • • • • • •• • • • 200 - 207 66 F. Laws and regulations restricting the activities of Africans outside the "white g.rea" •• • •••••• •• 208 .. 249 68

l. Bantu Administration Act • ••• a • ••••• • • 210 - 220 68

2. Proclamation 400 of 1960 •• • • • •• •• • •• • 221 - 241 70 3. Regulations for the Administration of the District of Ovamboland, Proclamation No. R. 17 of 1972. • • 242 - 249 73

III. SUMMARY ••••••••• . ~ ...... •• 250 - 253 74

-23- LETTER OF TRANSMITTAL

27 September 1974 Sir,

• o • I have the honour to send you hei-ewíth a report entitled "Arbitrary , , laws and regulations enacted and applied by the South African régime to repress the legitimate struggle for freedom", adopted unanimous1y by the Special Committee on Apartheid on 27 September 1974.

This report is submitted to the General Assembly in accordance with the request contained in resolut~on 3151 D (XXVIII) adopted by the General Assembly on 14 December 1973.

Accept, Sir, ~he assurances of my highest consideration.

. . (Signed) Edwin Ogebe OGBU Chairn:e.n of the Special Committee on Apa!theid

!r \. t His Excellency Mr. Kurt Waldheim Secretary-General of the United Nations New York

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.¡,j REPORT OF THE SPECIAL COMMITTEE ON APARTHEID

l. The Special Committee has repeatedly drawn attention to the fact that the Government of South Africa has instituted even more ruthless measures in an effort 1 to suppress all opposition to apartheid, and has adamantly refused the efforts of I the United Nations for peaceful change. It has the"eby closed all avenues for peaceful change and increased the danger of wide conflict with incalculable J ~onsequences to peace and security in South Africa and beyond. I

2. The Government of South Africa has enacted an armoury of racial laws and regulations, which, jurists have noted, often parallel those of Nazi Germany. It has also enacted a large number of arbitrary and repressive laws aimed at suppressing not only black political movements struggling for freedom, but even white organizations and individuals who have worked to bring about racial equality in South Africa.

3. The blacks have no vote in the all-white Parliament; even the very 1imited franchise they enjoyed in 1946 has been abolished. African political organizations have been banned. Protests against apartheid, strikes and even non-vio1ent passive resistance have been prohibited and pena1ties of the severest character have been prescribed for ccntravention of apartheid 1aws. ~igid censorship has been instituted; the statements and writings of black po1itica1 leaders and black writers are proscribed, as are those of their white counterparts who have dared to espouse the cause of racial equality.

4. Ministers and officials of the Government of South Africa have been granted powers to impose arbitrary and stringent restrictions on any persons they suspect of opposition to apartheid and racismo Even disrespect for unpopular African chiefs has been made a crime which is punishab1e by severe penalty.

5. Repressive 1aws are used vengefu1ly against the genuine leaders of the b1ack peop1e and their supporters, white and b1ack alike. The Special Branch, South Africa's omnipresent security police, has frequent1y resorted to brutal torture, to intimidate and extract information to incriminate opponents of aparthei~.

6. As a result, the freedom movement has had to resort to underground activity " and has fe1t obliged to abandon its long adherence to non-violence. 7. In a number of resolutions - most recently in resolution 3151 G (XXVIII) of .. 14 December 1973 - the General Assemb1y, by overwhe1ming majority, has reaffirmed the legitimate strugg1e of the oppressed peop1e of South Africa and has reiterated their right to use all available means to bring about the total eradication of apartheid.

8. In resolution 3151 D (XXVIII) oí 14 December 1973, the General Assembly requested the Special Committee on Apartheid to submit a special report to it on "arbitrary laws and regulations enacted and applied by the South African régime to repress the legitimate struggle for freedom". Pursuant to that request the Special Committee asked the Secretariat to prepare a study giving a summary of the main

-25- repressive enactments. The study was prepared by a consultant, Mrs4 Elizabeth S. Landis! Vice-President of the American Committee on Africa, and author of numerous articles 011 SOuti4 Africa, including Repressive Legislation cf the Republic of South Africa" published by the United Nations (ST/PSCA1SER.,A}7): y 9. The study, which is transmitted herewith, shows clearly that the South African régime has created a legal framework in which expressions of grievances or protest, and even more so a peaceful struggle, to end apartheid and to foster racial equality in accordance with the principIes of the Charter, are extremely difficul:t~ The South African Government thereby bears a grave responsibility for the present grave situation in the country, which constitutes a serious menance to , I intf'rnational peace and security.

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1/ United Nations pubLi.ce.t.Lon , Sa,les No.: E.69.II.K.8.

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, r, ¡ )

¡. ANNEX I"

~epresBion of the legitimate struggle for freedom i~_South Africa

r • 1 f. I 1.,

• e 1 1 j [ • ¡ ,¡, ¡ \

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",.\:, -.<."'--. -_._-"' .._...- .•......

l. INTRODUCTION

l. In 1949 the African National Congress defined its goal as "freedom from White d domination and the attainment of poLí.t í cr ~ independence .•.". 1/ The hí.story of modern South Africa is the history of the struggle of Africans, Coloured peoplc and Asians - more than 80 per cent of the popu1ation - to achieve that freedom and independence; and of the repression of their struggle by the domí nant whí t e minority.

2. White domination or the indigenous people of South Africa began soon after ~ . settlement of the Cape, with the ousting of the Bushmen from that area and the , subjugation or the local Nama , It was continued through the nineteerrth century by military conquest. By the time of Union, all the Africans had been lIpaci f i ed" . Despoiled of most of their lands and their cattle and, ul.tí.mat.e.Ly , of their freedom, they were penned inside native reserves, to be summonecl forth a.s needed to provide cheap labour for the white bosses of che country.

3. Despite the maltreatment and humilitation they were forced to endure, the i Africans tried every known non-violent means of winning better treatment: reasoned ¡ appeals, petitions, and speeches in the early years; later on, demon~trations, . !. 1;', i strikes, passive resistanc:, and non-coIllpliance with unjust laws. But the increasing militancy' and effectiveness of African struggle after the Second World War simply led only to increasing repression by the new Nationalist government; the Nationalists had come 1'0 power in 1948 by playing on white fears exacerbated by the briefly effective, but quickly broken, strike of African miners in 1946.

l~. Once in office the Nationalists outlawed, as fast as it W8':; tried, each ne,,' forro of action taken by the Africans to protest their deteriorating situation. írhey also banned all protest movements ~ parties, and pubf.í.catí.ons , black and white. At the same time, the Government introduced new leg 3lation, which increased racial inequality and injustice in the country. 2/

5. Denied the right to protest peaceably, the Africans finally turned to sabotage of public property in order to f'ocus international attention on t heí r situation. But thet tactic was broken by the Government, which used it as an ,. ~ : 1 1 • ¡ 'l' t 1/ Programme of Action, dated at Bloomfontein~ 17 December 1949 (mimeographed, r,. unsigned, llilpub1ished), cited in Feit, South Africa: ~he Dynamics of the African .. I National Congress (Oxford University Press), p. 3, t'oot-snot.e l. \ \ ¡., 2/ Including, inter alia, Group Area Act, Act No. 41 of J.950, superseded by ¡ \' Act No. 77 of 1957; Reservation of' Separate Arcenities Act, No. 49 of 1953; rl· ). Natives (Prohibition of lnterdicts) Act, No. 64 of 1956; Bantu Education Act, No. 47 of 1953.

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, ,._-...--~ ...... ---...-.,.."-_ ..• _'-.-- excuse for still more repressive legislation. Ultimately the African political organizaticns reached the conclusion that they could no longer rely on non-violent me&lS alone in their struggle to bring freedom to the blacks of South Africa, and t.hey began preparations for guerrilla warfare. In 1972 their position was upheld by the United Nations General Assembly, which reaffirmed "the legitimacy oi' the struggle of the oppressed people of South Africa to eradicate aEartheid and racial discrimination by all available means •••". 3/

) t 1 ¡,

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3/ Resolution 2923 E (XXVII),_ para. 10; sce also resolutions 2908 (XXVII), para. 6; 3151 G (XXVIII), para. 2; and 3163 (XXVIII), para. 5.

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;-. ,..a., ._ .'.t~ II. CLASSIFICATION OF LAWS AND REGULATIONS

6. The laws and regulations enaeted and ap~lied to repress the legitimate struggle for freedom in South Africa have, on the whole, tended to be more or less speeifieally directed towards particular kinds of aetion taken or threatened by blacks ~I or their supporters. Thus the laws and regulations may be considered from the South A:Lriean viewpoint as "closing the loop-holes" through which the

dispossessed and rightless majority might lawfully advanee to positions of actual • 1 or potential power.

k~alysed 7. in this manner, one may distinguish laws and regulations by the kinds • \'1 of aetion they are designed to counteract or penalize, namely the following: . h. Laws and regulations restrieting the fra!ehise and political aetion;

B. Laws and regulations restrieting speech, pub:"'.L.eation and petition;

C. Laws and regulations restricting strikes, demonstrations and meetings;

D. Laws and regulati ons restrieting passive resistanee and non-eomplianee with law;

Laws and regulations suppressing the use of force to bring about change;

Fn Laws and regulations restrieting aetivities of Afrieans outside the "white area".

This system of elassifieation is followed below. ¡. l ~ ! A. Laws and regulations restrieting the franchise and politieal aetion

8. Blaeks have always outnumbered whites in South Afriea. Consequently it was elear from the beginning that any system of universal suffrac;e would enab".e b'Lacks , if substantially ~ited, to dominate an eleeted government. But most whites were unwilling to concede that blacks were competent to govern themselves, let alone their white masters. Henee colonial laws eompletely exeluded non-whites from'the • ballot in t:r 1, Orange Free State and the Transvaal and permitted a raer-e handful oí non-white males to vote in Natal~ The more liberal Cape granted the franchise to l the small number of non-white men who eould meet property qualifieations. 51 In ~' ¡ 1909 the South Africa Act perpetuated these pre-existing colonial restrictions. 6/ t, I j, \ !Jj The term "blacks" includes Africans, Coloured people and Asians. ! 1. ¡,L· 5/ Handbook on Raee Relations in South-Afriea (Hellman, ed., 1949), 1, pp. 27, 34 and 37. j j) 6/ 9 Edw. VII, chapo 9, seet. 35 (2). Sect. 44 (e) provided that only whites 1 were eligible to sit in Parliament.

-30- ), 9. However, as Africans became literate ~ Christian -and economí.caj.Ly ii:ltegrated ­ l' . íl thus undermining the rationalization for their disenfranchisement - their political ¡ ( situation worsened. In the last four decades election laws have been amended to 1, eliminate the limited opportunities of blacks to better their situation through i the ballot box.

10. In 1930, the small non-white vote was diluted by enfranchising white (but not non-white) women. 71 In the following year all male whites were made eligible for the vote without property qualifications. 8/ Later, the voting age for whites was lowered to 18. 9/ These measures were only the beginning, however, in the

• t campaign to bar all non-whites from participation in political decisions. • i ? '

• fI l. Promotian of Bantu Self-Government Act (No., 46 of 1959)

!'1:' 11. In 1936 Parliament enacted legislation to bar the small number of .t enfranchised Africans from voting as part of the general electorate. 10/ To make '" this palatable, the Representation of Natives Act placed them on a special voters' r I ro11, v¡hie.l]. entitled them to e1ect three white representatives to the Hous e of í. ' Assemb1y. In addition, Africans through the then Union - most of whom had never voted - were permitted to elect four whites to represent them in the Senate. 11í

12. Thirteen years 1ater the Act was repealed by the Promotion of Bantu Self­ Government Act: Africans lost the right to elect seven whites to Par1iament without regaining their earlier (~f 1imited) general franchise. Thus Africans lost all electoral inf1uence on Bovernment po1icy.

2. Separate Representation of Voters Act (No. 46 of1951)

13. Africans in the Cape had never qua1ified as voters in sufficie..í. t numbers to change the outcome of any Parliamentary race. However, Cape Coloured peop1e were concentrated in such a way that their voice, if undivided, cou1d substantial1y influence e1ections in as many as 25 constituencies. 12/ Their voting record suggested, moreover, that they were opposed to the Nationalists.

.~

7/ Act No. 18 of 1930 • • 8/ Act No. 41 of 1931. 9/ Act No. 46 of 1946, sect. 3, amended by Act No. 30 of 1958, sect. l. 10/ Representation of Natives Act No. 12 of 1936. In 1936 registered voters in the Cape inc1uded 382,103 whites, 21,596 Co1oured peop1e, 1,401 Asians and 10,628 Africans. May, The South Africa Constituti2!!., p. 93. 11/ Act No. 12 of 1936, sects. 11 (1), 15 (1). 12/ McWhinney, Race Relations and the Courts in the Union of South Africa, 32 Can. B. Rev., p. 54, nn. 29, 30 (1954) (referring to 32 J. Parlo Comm. 601 (1951)).

-31- 14. The new Nationalist Government, which had not won a majority of the votes cast in 1948 although it captured a majority of se~ts in Parliament, wanted to

I improve its propsects for subsequent elections. To do so, it decided to remove " ' the Coloured people froro the common voters' rolili~ thus enhancing its chanees in up to 25 distriets; in exchange, it would place the removed Coloureds on a speeial voters' roll, giving them the right to elect four white members to the Rouse of As s embly• 13/

15. The Government did not, however, have enough votes in Parliament to follow the spécial procedure laíd down in the Constitution for altering non-white voting rights. 14/ So it "enacted" the Separate Representation of Voters Aet by the , ~ reg~lar legislative procedure - and thereby precipitated a eonstitutional crisis. The crisis began in 1951 when the Appella~e Division held the Act invalide 15/ It ended in 1956 after the Nationalists had packed the Senate with enough ¡ . ! ¡, pro-Government members to produce the majority needed. 16/ Then the special ¡ constitutional procedure could be followed to validate the Act. 17/ ! 16. Ten years later, the Government amended the Act to abolish the seats of the speeial l'epresentatives. 18/ Thus it fina11y eliminated Coloured electoral influence on South African legislation.

3. Electoral Consolidation Act (No. 46 of 1946)

17. For the N~tionalists, it was not sufficient to end the formal representation of blacks in Parliament. They also wanted to rid Parliament of the handful of milit~nt white members who supported black aspirations. To that end they used sections 5 (1) bis and 5 bis of the Suppression of Communism Act and they broke the Liberal Party by banning its members.

18. In addition to purging Parliament, the Government also wanted to purify the white electorate of black sympathizers. To help bring this about indirectly, Parliament amended the Electoral Consolidation Act by adding a new ground for disqualifying voters: It provided, in effect, that every person eonvicted of a violation of a "banní.ng or-der" issued under the Suppression or Communism Act should be permanently disqualified. 19/ Since only opponents of offieial race policy are placed under banning orders, and since they' are prosecuted fer even the most petty, technical violations, of those orders, this amendment could be 1, ¡ .. I 13/ The Governor-General was also to nominate one white Senator to repreBp.rrt • Coloured people in the Cape. j 14/ Such a ehange could be accomplished only by a two-thirds vote of both ,! Rouses of Parliament voting together. 15/ Harris v. Minister oí the Interior, 1952 (2) S.A. 428 (A.D.); and Minister of the-Interior, 1952 (4) S.A. 769 (A.D.). 16/ Senate Act, No. 53 of 1955. 17/ Act No. 46 of 1951, validated by South Africa Act Amendment Act, No. 9 oí 1956,-Seet. 1; Collins v. Minister of the Interior, 1957 (1) S.A. 522 (A.D.). 18/ Separate Representation of Voters Amendment Act, No. 34 of 1966. 19/ Sect. 6 (1), substituted by Aet No. 99 of 1969, sect. 2.

,,. ! I -32- I I l~ 1, ¡l' expected to gradually whittle away the vocal opposition in the electorate. The saro.e l' f< ¡ amendment exempted from the disqualification for treason all National Party members l, gaoled tor pro-Nazi activity during the Second World War: the disqualification was i',~; ft made inapplicable to persons convicted befare 1950. 1,' ¡ i 4. Prohibition oí Political Interference Act (No. 51 of 1968)

19. With the abolition of any representation of non-whites in Parliament, the GoV'crnment set up alternative advisory or allegedly quasi-legislative bodies in which Africans, Coloured people and Asians were to be representedr To create an , ~ "acceptable" f'acade , it allowen. some members of these bodies to be elected. However, it soon realized that non-white opponents of Government policies were winning elections. It therefore concluded. that the success of these candidates was due to their collaboration with white opposition parties and to the help given them by whites who were not in power. The Prohibition of Political Interference j' Act was therefore introduced for the purpose of isolating and crippling non-white I opponents of the Government. r· 20. Section 2 (~) of the Act prohibits members of different "population groups" from being members of the same political party. Section 2 (b) in effect prohibits any white from being an agent or a member of an election committee of a non-white political party. Section 2 (~) prohibits any person from addressing a meeting for the purpose of assisting any political party or candidate if a majority of the audience is of another population group.

5. Suppression of Communism Act (No. 44 of 1950)

21. This Act (read with its complement, the Unlawful Organizationl:3 Act) is, perhaps, the most important of the whole stock of repressive legislation. It is aimed at a wide range of opponents ("statutorl communists") and of conduct ("furthering the achievement of any of the objects of communism"). It is used to muzzle individual opponents of apartheid and to destroy all effective political organizations which seek freedom for the blacks of South Africa.

Communist Party banned

22. The Act starts out by declaring the South African Communist Party to be an unlawful organization. 20/ It also authorizes the State President to nec1are other • communistic organizations unlawful, 21/ and it provides fer the investigation of suspect organizations. 22/ Although-Section 17 provides th~t the State President shall not declare an organization to be un1awful unless the Minister of Justice '" has considered a report on the organization by a three-man committee, including a ¡ senior magistrate, the Appellate Division has ruled that the organization in question has no right to make representations on its own behalf te the committee or the Minister. 23/

20/ Sect. 2 (1). ~I Sect. 2 (2). The Congress of Democrats and the South African Defence and Aid Fund were declared unlawfu1 under this provisien. 22/ Sect. 7 (1) (a). 23/ South African Defence and Aid Fund v. Minister of Justice, 1967 (1) SA31 «». -33- ,) í F ¡ \; , . -:~~~~,~¡¡;~~...E:]',~~..¡'&:1!!1::i::';i':l:~;:"2S;;:;',i2':;""1!í'~~~fil:¡¡m~~e:i:¡b4~:s1:~::.r':'~i::::·~;~'.!i'2~t::~!tif&::;'\'i\fJ~~~~'1!M'''!!~::¿'SW!ii~;~~~.

23. Seetion 3 (1) (a) makes it unlawful for any person to be a member of an unlawful organizatioñ; to possess or display anything (a badge~ a photo of members, etc.) eonnected with such, .an organization; to contribute to it; or to take part in any aetivity "in which it was or cou1d have been engaged" on the date it was ;.¡1 outlawed. Contravention of this section is punishable by imprisonment for 1i '", 1 to 10 years. 24/ The eourts have interpreted the seetion a.s ereating a who1e \ - í,l series of separate offences whieh may arise out of a single aet. 25/ Thus a person may be eonvicted, for examp1e, of allowing his house to be used for a meeting of an ,.,,-­ ¡. > un1awful organization and for a1lowing his house to be used for soliciting of membership in the organization (at the same meeting). 26/ Under this interpretation opponents of the régime may be harassed by repeated prosecutions. Whether convicted 01" aequitted the first time, many have been tried again for a "different" offence based on the identical aet. 27/ • Lifted persons

24. A1l past and present members and "active supporters" of every unlawful ("banned") organization must be 1isted"by the dfficial liquidator who takes over its property. 28/

25. Sections 5 and 5 ter 29/ authorize the Minister of Justiee to penalize "listed person" without any trial ür appeal to any eourt. He may prohibit them f'rom becoming members of a1l or specified (lawful) organizations or from making ol:' reeeiving eontributions for them or from participating in or assisting their aetivities. 30/ Under this provision the Minister has prohibited al1 1isted persons from be10nging to any organization that prepares, prints or publishes any pub1ieation. 31/ Government Notice 2130 of 1962 32/ forbids 1isted persons froro ¡,; joining sorne three dozen speeified organizations, as well as a1l other p organizations whose purposes inelude promoting any of the aims of the specified t, organizations. The notiee also forbids them to join or partieipate in the I r aetivities of any organization "which in any manner propagates, def'ends , attacks, ¡: eriticizes or dis~usses any forro of State or any principle or poliey of the i

24/ Seet. 11 (e). 25/ S. v. Seremane, 1964 (2) U.A. 512 (T); S. v. Xoswa, 1964 (2) S.A. 459 (c); S.v. Mbele, 1964 (4) S.A. 401 (N). 26/ See the case of Dr. M. Pather, diseussed in 1965 Survey of Race Re1atIOns in South Afriea, p. 69. • 27/ For actual cases, see Rand Dai1y Mail, Johannesburg, 22 Ju1y 1965. 28/ Seets. 4 (10) ~ "8~ 3 (1) (b). .. 29/ Added by Aet No. 76 of 1962, seet. 4; substituted by Aet No. 24 of 1967,31. 30/ This prohibition may be imposed, extended, or otherwise altered by notice in the Gazette, without personal notiee to those affecte~. Secta 5 ter. 31/ 1963 Annua1 Survey of South African Law, p. 54. 32/ Government Gazette No. 154, 28 Deeember 1962.

-34- Government of a State, or whieh in any manner undermines the authority of the Government of a State" - i.e., a11 eivic organizations from a neighborhood betterment assoeiation to a philosophiea1 club. 33/

26. 8eetion 5 (1) (e) a1so empowers the Minister to prohibit 1isted persons from attending any or a11 gatherings (see seet. c.6 below).

27. Seetions 5 (1) bis 34/ and 5 bis 35/ make it un1awfu1 for any 1isted person to run for pub1ic offiee-0r-,-if e1eeted, to be seated. These striet provisions grew out of the Government~s strugg1e to rid PaI'1iament of a mi1itant opponent of

apartheid e1ected by At'r í can voters. vJhen expe11ed under the Aet as origina11y drafted, he was enthusiastica11y re-e1ected by his Western Cape eonstituency unti1 his continued eandidaey was made a criminal offence. 36/

• 28. Section 5 quat, 37/ whieh has been bitterly attaeked by mueh of the Beneh and Bar, provides that no listed person may be admitted to any braneh of the legal profession; and that any advocate, attorney, notary or eonveyaneer who is 1isted sha11 be automatiea11y disbarred.

Cornmunism; "advoeating communism"

29. The term "communism" is very broadly defined in seetion 1 (ii) to inc1ude any form of Marxian soeia1ism, inc1uding "in particular" any doctrine or seheme whieh aims at:

(a) Estab1ishing despotie government based on the dietatorship of the proletariat;

(b) Bringing about po1itieal, industrial, social oI' eeonomie ehánge through disorder, un1awfu1 aets or threats;

(e) BI'inging about ehange in South Afriea 'with or under the guidanee of a foreign G~vernment oI' foreign or international institution; or

(d) Eneouraging racial hostility te aehieve any objeet in (a) or (bt.

30. Whenever an organization is deelared unlawfu1 ("banned"), under this Act or the Unlawfu1 Organizations Act, its objeets are added to the list of "objeets of eommunism" in seetion 1 (ii). 38/ Advoeating or aeting to aehieve any of those objeets is an offenee punishab1e by 1 to 10 years' imprisonment under seetion 11 fb) • or (a), respeetive1y. The eourts have interpreted seetion 1 (ii) so as to enable the Government to perseeute militants under seetion 11 (a) or (b).

33/ House of Assemb1y Debates (HansaI'd), 3 February 1967, eo1s. 613-14; la FebruaI'Y 1967, col. 1032. 34/ Added by Act No. 50 of 1951, sect. 4 (b) and amended by Aet No. 15 of 1954,-Seet. 3 (e). 35/ Added by Aet No. 15 of 1954, seet. 4. 36/ Seet. 11 (f) bis, added by Aet No. 15 of 1954, seet. 8 (a). 37/ Added by Act No. 24 of 1967, sect. 2. 38/ Un1awful Organizations Aet, No. 34 of 1960, seet. 2 (d), amended by Aet No. 3~of 1963, sect. 15. -35- 31. In R. v. Sisulu 39/ the defendant was accused of advocating an object of r~ communism as defined in section 1 (ii) (b), namely, (a change t o) a non-racial ¡: society, to be achieved by the il1egal refusal to carry passes. The defence was [' ¡ ,~ ~ based on the assumption that the definition had two separate parts: the main provision, covering Marxian socia1ism, and the four types of doctrine or scheme, set out in subitems (a) to (d). The relevant subitem, (b) .. as well as (d) - has ~:I>; no obvious or necessary- rel~tionship- to Marxiansocialism,--and therefore the i :, defence argued that the prosecution had to connect Sisulu's activity with Marxian ;.¡~ socialism in some ,{ay. 'I'he court, however, accepted the prosecution' s contention that each subitém constituted an independent form of communism, regardless of its

['.I.:.!.I relationship - or 1ack of relationship - to Marxian socialismo Indeed the probability that such a relationship would be difficu1t to show in most cases was cited as one reason for not adopting the construction urged by the appellant.

!1.··1"• ~ 32. The court also ruled that (b ) covered any unlawful act aimed at producing any , change even though no violence occurred or was intended. (The defence had argued i:J' that the intended change could be accomplished by simple, lawful amendment of the !i1.::1\ protested 1aws.) t"~1 'I~ 33. Judge Greenberg recognized explicitly that the court's reading could make many J.•. '.l;.'.r~ Lj kinds of activity without the slightest communist tinge punishable as furthering communism. Indeed, he himself referred to such hypothetical activities as a

Ij;.··••• procession in violation of municipal by-laws by the National Council of Women to ¡ , urge Par1iament to change laws relating to guardianship of children, or a farmers' l' protest against fencing laws by contravention of them. ¡, i o:' IJ'1:', 1;, 34. In S. v. Arenstein 40/ the Appellate Division held that the Act prohibited \;" ¡ Ii encouragement of interim, or ancillary, objects of communism, not merely of the ultimate objectives. Once the prosecution showed that the accused's acts fell under (~), (b), (~) or (d), all that was left to show was that his intention was to further the ultimate achievement of communism.

i Statutory communists: "banning"

35. A "communist" is defined in section 1 (iii) as any person deemed 41/ to be a communist by the State Presidenta

36. A pez-son may be so deemed on the ground that he: is or was at any time and at any place a communist or that he advocates, advises, defends or encourages, or at any time in the past advocated, etic ,, any of the objects of communism or any act .. calculated t.o further any such object. (In legal shorthand, this is referred t'o as "advocating communism".) This definition is supplemented, for practical purposes, by the defi.nition of a person who may be "banned" - namely, any list~d person or anyone else who, the Minister of Justice believes, advocates communism or is likely to advocate it or engages in activities which further or may further the achievement of any object of communism. 42/ ---

39/ 1953 (3) S.A. 276 (A.D.). 40/ 1967 (3) S.A. 366 (A.D.). 41/ "Deemí ng" creates an irrebuttable presumption. 42/ Secta la (1) (a).

-36- 37. Sections 10-10 quin provide that many types of administrative restrictions may be imposed on statutory communists by "banning order".

38. Section 10 (1) (a) 43/ empowers the Minister of Justice to restrict a "communist" to a particular area'- normally the town or magisterial district where he lives or:) in the case of "house arrest", to his home 44/ - or to prohibit him from being in certain areas or types of places; 45/ to prohibit him frero communicating with all or specified persons - normally other banned persons 46/ ­ and from receiving visitors; and to prohibit him from doing other specified acts ­ working at certain kinds of jobs, 471 joining a trade unien, teaching, 48/ joining certain organizations, 49/ etc. 507- --

39. Section 10 quat 51/ authorizes the Minister te requi:f'.c: a banned person to report to a police station at stated intervals (e.g., weekly, at a certain hour).

40. Sections 5 and 5 ter (discussed above in para. 25) and 9 (diseussed below in paras. 105 and 107) empower the Minister to ban a statutory communist or listed person from becoming a member of or participrult in various organizations (including public bodies) or from attending "gatherings" (even social gatherings of as few as three persons)g

41. Sections 5 (1) bis and 5 bis preven't all banned persons, as well as listed persons, from standing for or taking elected public office. And section 5 quat automatically disbars .all banned, as well as all listed, lawyers.

43/ 'Substituted by Act No. 76 of 1962, sect...8 (aL, .. 44/ For decisions involving house arrest, see Minister of Justice v. Hodgson, 1963-r4) S.A. 535 (T); Bunting v. Minister of Justice, 1963 (4) S.A. 531 (e). See a1so the facts cited in the case of Willd:e Mbólomgo end Others. ats. The State, a mimeographed pamphlet issued by the South African Defence and Aid Fund (April1965). 45/ See banniug order quoted in Mathews~ Law, Order and Liberty in Soutll Africa (Juta-1971), p. 89. 46/ In S. v. Arenstein, 1964 (1) S.A. 361 (A.D.) the court took notice of the problems involved because Mr. Arenstein and his 1aw partner were both banned persons and could not communicate wit.h each other. In the C81se of the Buntings, .. the Minister of Justice made an exception so that husband aTId wife, both banned, could speak to eaeh other. Bunting v. Minister of Justice, 1963 (4) S.A. 531 (e).

47/ See S. v. Qumbeld, 1966 (4) S.A~ 356 (A.D.); So v. Qumbela, 19C7 (4) S.A.577 (A.D.). 48/ All banned persons are not forbidden to teach or to continue teaching. Africa Digest, vol. 12 (February 1965), p. 108.

49/ SfH'; be1ow, paras. 104 et seq, 50/ Helen Joseph was forbidden to be in any building containing a trade union office. She had to give up her Job as a resulto Africa Digest, ' vol. 13 (June 1966), p. 135. 51/ Added by Act No. 76 of 1962, sect¡·9.

-37- 42. fhe terms of the sections authorizing banning are so broad and the specifications of forbidden and required acts are frequently so detailed that it is not unusual ro r b _.lning orders directed to a single individual to run seven or eight foolscap pages, typed single-spaced. 52/

h3. A banried (or listea.) person is given no trial before being labeled a communist and has no right to appeal to a court for review of the Minister's oraer against him. 53/ Nor can an order be attacked collaterally. Thus in a prosecution for contravention of a banning order, the court will be limited to the question whether the accused contravened the order; it will not look behind the ban to determine its validity or fairness. In one case the court held that a banned person may not use his exit permit/to leave South Africa if his banning orders restrict him from entering the area where a port of. departure is located. -54/ . .. 44. 'I'he number of persons subject to banning orders has varied considerably :trom time to time. During long periods in the 1960s the number varied between 500 and 1,000. Currently there appear to be about 200 persons under restrictions. 55/ Names of newly banned. persons appear regularly in the Government Gazette; but bans do expire (they normally run for two or five years) and they are frequently not renewed.

45. Althoug banned persons are a11 "deemed" communists, there is irrefutable evidence that many of them are not, and never were, cornmunists, as that term is understood in the rest of the world. Sorne of them ívere, inJeed, vigorous anti-communists. This has even been admitted by Government spokesmen. 56/

46. Banning is~ in fact, a poI~tical tool used to destroy all effective opposition to the Government f s racial policy. It was used to break the non-whi te trade unions soon after the Act bec~le law. 57/ In the mid-1960s it was used against the leader and all the orgwizers of the minuscule Liberal Party (a strongly anti-comm~~ist organization) so that it could not contest the 1966 election. 58/ After the African National Congress (ANC) and the Pan Africanist Congress (PAC) had been declared un1awful under the Unlawful Organizations Act, their former

52/ See S. v. Qumbele, cited in foot-note 47. 53/ R. v. Ngelewa, 1954 (1) S.A. 123 (A.D.), allowing persons te make representations, was overruled by amendment of s octi.on 10 (1) (a). Subsection 10 (1) (e) bis, added by Act No. 1~ /.~ 1954, sect. 7, does authorize • a banned person to asl- t.he Minister for the reasons for his ac'tí.on ; but the Minister may hjde beb .. nd a claim of "detrimen~ to public policy" jn replying with :::L merely ritualistic restatement of the law. See Kloppenberg v , Millister of Justice, 1964 (4) S.A. 31 (N). 54/ Sobukwe v. Minister of Justice~ 1972 (1) S.A. 693 (A.D.). 55/ United Nations figures compiled from offical t:l.nd press sources. 561 Rouse of Assemb1y Debates (Hansaa-d) , J l~ O'2"tober 1966, col. 1+263; 22 February 197~, col. 1584. 57/ Car:er, The Politics of Inequality (rev. ed. London 1962), pp. '71-73; Walker, Hist<.'''Y ofSOuthern Africa (3rd ed., London , Longmans Green 1957), pp, 819-821; South African rñstit'lte of Race Relations, Action'l Reaction and Counteract.ion. (Johannesburg 1963), pp , 11~-16. 58/ House of Assembly De"bates (Hansard), 3 June 1965, col. 7C55; Africa Digest, vol. l~April 1966), p. 110. --- ·~38,-

1 • lf"._" -...... - members were harassed and persecuted by bannings and repeated trials under the criminal provisions of the Suppression of Communism Act. 59/

47. Current victims of banning and other repr~ssive measures are the new leaders of the opposition: the churches - particularly the Anglican and Lutheran mission churches in Namibia and preachers of the social gospel in South Africa; black and white student organizations, the South African Students Organization (SASO) and the National Union of South African Students (NUSAS); and the reviving black trade unions.

48. In addition to its primary use, to prevent effective opposition, banning has also been employed to punish, without trial, persons the Government believes to have committed political offences. Thus persons acquitted oí charges under various . " "internal sec:urity" laws have been banned as they left the court; 60/ and persons who have served their sentp.nces for political offences have been banned after completing their gaol terms. 61/ The most well-known victim was Robert Sobukwe, the leader of the Pan Africanist Congress, for whom Parliament enacted a special provision, section 10 (1) (a) bis 62/ (now Lapaed), TL~~t provision empowered the Minister of Justice to detain a political offender in prison after hé had completed his term if the Minister believed that the prisoner was likely to "advocate communism" •

49. Banned persons are also frequently harassed by officials determined to catch them in sorne minor infraction of their orders, as reporting late to a police station or talking to another banned pBrson. Mrs. Winnie Mandela has been repeatedly subject to such tactics. Violation of banning orders normally arises from inadvertence or from ignorance of the law or of the latest notices in the Gazette - oí which every banned person, even an illiterate located in an inaccessible horneland area, is presumed to h~ve knowledge. The penalty for violation of a banning order is 1 to 10 years' imprisonment, not all of which may be remitted. • 50. As indicated ab~ve in parBgraph 18, every white person convicted of violating a banning order is automatically and permanently disqualified from voting even if the violation was inadvertent or highly technical.

51. Section 12 creates a number of presumptions which work against a person deemed to be a communist or accused of contravening the Act.

22/ See Rand Daily Mail, Johannesburg, 22 July 1965. 60/ E.g., Winnie Mandela and her 21 co-defendants in the 1969 Terrorism Act case.

61/ E.g., Robert Sobukwe, who was served with banning and house arrest order ¡ '.¡ after his release from gaol for a political offence. :¡l ¡ 62/ Added by Act No. 37 of 1963, sect. 4 (a). '¡ ,) "1 "'·,:;i ~ ,I .i :/ 1'tI \ .¡ -39·~ i ~¡

I • N._- -...... _. 6. Unlawful Qrganizations Act (No. 3~, of 1960)

52. This legislation was en&cted to supplement the Suppression of Communism Act. The two should be read tog~; el'.

53. Section 1 (1) empowered the Stat¿ President to declare the Arrican National Congress and the Pan Africanist Congress unlawfu1, an action technically diffieult under the Suppression of Commcní sm Act. 63/ The State President out1awed ("banned") both within 21~ hours , 64/ -

54. Subsection (2) empowers the State President to declare any other organization unlawful if he finds it carries on, or proposes to carry on, any ANC ol' PAC activities.

..•.f " !~ 55. Seetion 1 (3) (a) is designed to reach any association whieh might try .' replace organizations specifieally banned under this Act or the Suppressicn oí' Communism Act. It authorizes the State President to declare, by proelamation in the Government Gazette~ that any aJsoeiation - whatever its name - is or was in fact ANC, PAC, the Communist Party, or any other banned organization. 65/ In any criminal proceeding,- e.g., for soliciting funds for such association - the association named in the proelamation is conclusively presumed to have existed at al1 times specified in the proclamation and to have been at all such times ANC, PAC or other banned organizations. Subsection 1 (3) provides that the validity of all pl'oclamations issued by the State President undel' section 1 must be accepted by all courts ,

56. Seetion 1 (3) (b) goes aftel' orgffilizations one step further removed from ANC~ PAC and other banned organizations. It provides that in a criminal proeeeding an aet proved to have been eommitted by an a.ssoeiation corresponding in name or description to any assoeiation deelared under section 1 (3) (a) to be ANC, PAC, or any other banned organization is eonclusively presumed to ha.ve been eommitted by the banned organization. Section 1 (3) (e) provides similarly that in a criminal proseeution a !.~~rson proved to have been an offieel' oz- member of an association eorl'esponding to an organization deelared under section l' (3) (a) to be a banned organization is deemed to be an offieer or member of the banned organization.

57. Seetion 2 makes most provisions of the Suppression of Communism Aet apply mutatis mutandis to organizations dee1ared unlawful under seetion l. Thus any aet whieh is unlawfu1 under seetion 3 (1) (a) of the Suppression of Communism Aet if taken witil respeet to an organization banned under that Aet - e.g., possessing an ol'ganization badge - is unlawful with respeet to ANC or PAC. It is also unlawful in respeet to any organization deelared under section 1 (3) to be ANC or PAC. Any reference in the Suppression of Communism Aet to the objeets of eommunism is construed as a reference also to the objeets of ANC, PAC, or any

63/ House of Assembly Debates (Hansard), 28 Mareh 1960, col. 4204. 64/ Proclamation Noo 119, Government Gazette Extraordinary, No. 6414, 8 Apri1 1960. 65/ The reason for enaeting this seetion is set out in House of Assembly Debates (Hansard), 26 April 1963, col. 4840.

-40- If1: othe'r organizations banned under this Act - or to objects similar to the objects of L any such organization. 66/ ,

7. Affected Organizations Act (No. 31 oí 1974)

58. In addition to purging formal politica1 organizations and individuals connected with them~ the South African Government has enacted legis1ation to destroy organizations which are formally apolitical or nonpolitical but which have been driven by their particu1ar!~oncern to criticize conditions or urge changes in po1icy.

59. Tbe purpose of the Affected Organizations Act, according to Government spokesmen , is to prevent Soutb Aj'rican organizations from engaging in • extrapar1iamentary polítical activities in co-operation with foreign org&~izations; and to prevent foreign organizations and persons from using South African organizations for anti~South African purposes. It grows out of an inquiry into the affairs of NUSAS, the South African Institute of Race Relations, the Christian Institute oí Southern Africa, and the University Christian Movement which was begun in 1972 by a Par1iaroentary se1ect committee C'the Sch1ebusch Commission"). However, the Commission's reports had not been comp1eted when the Act was made 1aw. 671

60. Section 2 (1) empowers tbe State President, without prior notice, to declare an organization "affected" if he finds it engaging in "po1itics .•• with the aid of or in ••• consu1tation with or under the inf1uence of an organization or person abroad •••". "Po1itics" is nowhere defined, thus leaving it to the Government to decide arbitrari1y which organizations wi1l be, as one member of Par1iament put it, "afflicted". 68/ It is assumed that the subjects of the Sch1ebusch Commission inquiry wi11 be designated. So may the reviving b1ack trade unions, which have been promisei assistance by trade unions abroad. Once used effective1y, the 1aw may be app.l.L ed ever more wide1y. ,69/ • 61. Subsections (2) and (3) prohibit soliciting, rece1v1ng or bringing to the Repub1ic money froro abroad for any affected organization and forbid the dispensing by such an organization of any money it received from abroad at any time ­ apparent1y even before it WBS dec1ared affectedQ The obvious purpose of these subsections is to cripp1e suspect organizations by cutting off their outside support, 70/ but the Progressive Party Member pointed out that such a dec1aration wou1d probab1y cause domestic contributors to stop their support too. 71/

66/ Secta 2 (d), amended by Act No. 37 of 1963, secta 15, overru~ing s. v.Jiokwe, 1962 (3) S.A. 71 (T). 67/ Rouse of Assemb1y Debates (Hansard), 22 February 1974, co1s. 1614-20. 68/ Ibid., 25 Februa~J 1974, cols. 1859,1861. 69/ Mrs. Suzman suggested that it might app1y, e.g., to organizations whose members receive grants from Ussa1ep (United States-South Africa Lead.er Exchange Programme), which had been labe1ed subversive by the Minister of Defence. Rouse of Assemb1y Debate~ (Hansard), 25 February 1974, col. 1860. 70/ -ª-ouse of Assembly Debates (Hansard), 2~ February 1974, col. 1634. '71/ Ibid., 25 February 1974, col. 1859.

-41- .. ¡ ., ! .¡ j ,) \ 62. Section 3 provides for a Registrar of Affected Organizations to audit the receipts and expenditures of affected organizations. He may prevent anyone from disposing of funds received or dealt with in contravention of the Act or apply for a court order confiscating them.

63. Section 6 provides for the appointment of an "authorized officer" to look into the affairs of any organization which the Minister of Justice suspects of being subject to designation under section 2 (1). It gr~nts broad powers to the officer to carry out his investigation, and section 7 penalizes obstruction. ane opponent of the Act considers section 6 a "sleeper", alleging that any organization critical of the Government can be subjected to a McCarthyist smear in the guise of an "inve~tigationlf. 72/

.. B. Laws arrd re~ulations restricting speech, press and petiti~

64. The laws discussed in the previous section which prevent blacks and their active supporters from participating in the South African political system necessarily inhibit free expression of ideas in the process. However, certain laws or portions of laws ~elate so specifically to speech and press, even when the political process is not involved, that they are treated separately in this section.

65. All the laws discussed here tend, whatever their guise or rationale, to prevent opponents of government policy - most of whOIn are completely excluded from Parliamentary politics - from expressing their opinions, from seeking or presenting data to back them and from attempting to persuade otbers of tbeir points of view. Thus they serve to repress a crucial aspect of the legitimate struggle for freedom.

, l. Suppression of Communism Act (No. 44 of 1950) 1 i l r, 66. The portions of this Act, which are directe~ primarily against pollJical action by opponent$ of tbe régime have been discussed above. The analysis in tbis II section of the mechanics and effects of banning (as well a.s of certain other provisions of the Act) will demonstrate how the Act is used to repress speech and ~ press direct1y. 67. Thus, as indicated above, virtua11y al1 banning orders forbid the banned ~ person to communicate with any other banned (or listed) person 73/or any person •¡ ~ { whose name "corresponds substantial1y" with that of a banned persono 14/ A1l •

'1" "1 :1 "'1 72/ Ibid., cols. 1861-63. 1 i 73/ Whetber banned under the Suppression of Communism Act or under the Riotous Assemb1ies Act, secta 2 (4) (b). See below, para. 121. 74/ The ban on communication with otber banned per-sons is made a virtual nightmare by two factors: (i) each banned person must compile his om1 list - from Government Gazettes or otherwise - of persons with whom he is forbidden to

cornmunicate, and an innocent mistake wi11 not protect bim against prosecuc í on or punishment; (ii) in a criminal prosecution for vio1ation of such an order, secta 12 (3) (a) (added by Act No. 24 of 1961, section 3) F"+'s the burden on bho accused of proving his Lnnocence beyond a reascmab1e doubf if the prosecutor shows that he communicated with any person whose name "corresponds substantially" to that of a banned persono -1+2- banned persons are also prohibited from belonging to any organization which has any connexion with publishing; 75/ and they are forbidden to teach. 76/

68. In addition., sections 10 quin 77/ and 11 (g) bis, 78/ read together, make it a crime, punishable by 1 to 10 years'--imprisonment, to publish or reproduce any speech or writing of any person who has ever (i) been forbidden to attend a meeting , under section 5 or 9 or (ii) been listed in the Government Gazette, in accordance i·\ with section 10 quin, as a present or past resident of South Africa who is .··¡•...... I advocating communism anywhere. It appears that these provisions are aimed I:r, ' primarily at expatriate South Africans who were not banned when they left the ,.,..\ ¡. \ country and whose writings or speeches might cause South Africans to question their l'. Government's pelicies or support liberation. 79/ ti' , , .. 69. Section 6 empowers the State President, without prior notice to publication, )., to prohibit its (continued) printing or dissemination if he is satisfied the i publication: (i) conveys information er views calculated te further achievement of any objects of communism, (ii) is published or disseminated by or propagates the views of an unlawful organization or (iii) replaces a publication a~ready banned under the section. Section.6 ended the life of New Age, Advance, Africa South, and u host of other small publications.

70. Section 6 bis, which requires a deposit to be posted by newspapers for their "good behavior"-;is discussed below in paragraph 78.

I )- 2. Riotous Assemblies Act (No. 17 of 1956) ¡ .:

71. The prOV1S10ns of this Act discussed in this section have clase affinities with provisions of the Suppression of Communism Act.

72. Section 3 (1) empowers the State President, by notice in the Government Gazette and local newspapers, to prohibit th3 publicátion or dissemination of any ,­ "documentary information" which he believes "likely to cause hostility" between blacks and whites. Subsections (2) and (3) allow the editor of a banned publication two weeks to apply to the Supreme Court to set aside the ban. To succeed, the editor must show that the information in question is "not of such a natrure that the natural and probable result of its publication or other dissemination will be to engender feelings of hostility" bet.ween blacks and whites. The difficulty of proving such an abstract negative might well make it possible for the Government to use this provision to suppress data showing income, educational, political or • other disadvantages of blacks in comparison with whites •

75/ 1963 Annual Survey of South African La~, p. 54. 76/ See foot-note 45 aboye. 77/ Added by Act No. 97 of 1965, secta 4. 78/ Substituted by Act No. 97 of 1965, secta 5 (b). 79/ E.g., Todd Matshikiza, Ezekiel Mphahlele, Lewis Nkosi, Robert Resha, Michael Scott, Ronald Segal, Oliver Tambo. But a banning arder was served on one person after his death, presumably to prevent publication of any of his staternzuts after his death. See.1963 Annual Survey oí Gouth African Law, p. 55.

-43- 73. Subsections (5) to (8) authorize the Minister of Justice to prohibit a person from being in a specified area for a specified period if he is satisfied that the person is promoting hostility between blacks &1d whites.

74. Subsections (4) and (7) of rewritten section 2 80/ of the Act contain provisions similar to those of sections 10 quin and 11 (g) bis of the Suppression of Communism Act. Subsection (7) makes it an offence to reproduce or disseminate any speech or writing made by a person prohibited by ministerial order from attending a gathering.

3. "BOSS" Act (Gl.=neral Law Atllendment Act~ No. 101 of 1969~ section 29, substituted by Act No. 102 of 1972,. sectión---25) 7';. This "Act" empowers the Mí.ní st.er' concerned with the subject-matter in question te prevent any person from testif,ying or producing documer~s ar other evidence in a court or before any government body. He may do so by pr~ducing his affidavit that he has personally considered the subject to be testified about or the document or evidence and that in his opinion disclosure would Ifprejudicially affect the security of the State". Apparently, the court must accept the affidavit without looking behind it.

76. This law can be used to prevent a plaintiff from proving his case - e.g., a 1\ claim for damages against the police for assault - or a defendant from asserting I ~ his defence. 81/ t 1 4. Newspaper and Imprint Registration Act (No. 63 of 1971)

77. This Act is intended to put pressure on publishers end printers not to lend their services to opponents of the régime.

78. Section 2 requires every publisher in the Repub1ic to register his paper with the Minister of the Interior. Section 6 bis 82/ of the Suppression of Communism Act supp1ements this section by providing that no epplication for registration of a newspaper sha11 be effective unti1 21 days after fi1ed and unless the proprietor deposits a suro determined by the Minister but not exceeding R20,000 ($28,000). The deposit stands as a guarantee that the paper wil1 not be conducted in such a way as to cause it to be suppressed under sectien 6 of the Suppression of Communism Act.

• 80/ Sect. 2 substitu~ed by Act No. 30 of 1974, sect. 2. 81/ Mathews, Law, Order ar.d Liberty in South Africa (Juta 1971), p. 260; . House of Assemb1y Debates (Hansard), 11 June 1969, co1s. 7800-03, 7807-11, 7814, 7817-19, 7824-25; 12 June 1969, cols. 7861-64; 17 June 1969, cols. 8223-24. 82/ Substituted by Act No. 2 of 1972, sect. 2.

, '); ;¡ ,\ ,j -44- 1 "

J,1 ,j I I :\ J J 7'9. The Act a1so requires that information concerning the pub1isher be pub1ished in each issue 83/ and that the chief editor be a resident of either the Repub1ic or the Territory. 84/ Section ,9 requires a printer to print his name on everything he prints. The provision suggests that the printer may be held 1iable for the contents of any~hing he prints and tends to put pressure on him to act as an unofficial censor.

5. Pub1ications and Enterta~nment Act (No. 26 of 1963)

80. This is the basic censorship statute of South Africa. It attempts to protect South Africans from immora1, indecent, irreligious and politically unacceptable ideas.

81. Section 5 (1) prohibits printing, producing, displaying or disseminating any undesirable publication or object. 85/ Section 5 (2) deems a publication or object undesirable if any part of it, inter alia, harms relations between the races; prejudices state saíety, welfare, peace or order; or disc10ses prohibited matter relating to judicial proceedings.

82. The Act crúates a Publications Control Board. The Board is empowered to ;í examine publications and objects to determine whether they are undesirable and to ¡l approve the importation oí pub1ications and objects subject to censorship. 86/ ¡

I ,j 83. The Act prohibits showing films not approved by the Board. Reasons for ¡ disapproving a film include, inter alia, that it prejudices state safety; promotes .¡ communism; harms relations between different racial groups; or ofíensively depicts ., "J¡ ¡.! "intermingling of white and non-white persons". 87/ The Board may prohibit any \ t f .t public entertainment if it is "contrary to the public interest". 88/ I\ f :r 84. Section 13A 89/ grants broad powers of entry, search and seizure in connexion I '1 ¡ with the production, display or dissemination of undesirable pub1ications and I I ~ ~ objects. Contravention oí provisions of the Act constitutes a penal ofíence. 901 ,. . i

; .....1 '1 s ! ¡ 6. C~stoms and Excise Act (No. 91 of 1964) ... . -- I 1.;1 '~ "~ I¡ 85. Section 113 (1) of this Act he1ps keep suspect po1itical ideas (as wel1 as ~\ ..¡ Rep~blic. ¡ pornographic or irreligious materia1s) out oí the .j ¡ • J¡ 11 j ,.1 '· : . · · ·..:.··1 83/ Sect. 7. '1 1. 1 , 1i t.,~

84/ Sect. 8. I" .' 1 i ¡ 1 85/ It also prohibits disp1aying or selling any inexpensive paperback unless '.) . ¡ the Board has granted a permit for its importation. l 1 86/ Sects. 2, 3, 8 (1), (2). '1 1¡ 87/ Sects. 9 and 10. ¡ 88/ Sect. 12, amended in part by Act No. 32 of 1971, sect. 6 (a). I F¡ 89/ Added by Act No. 32 of 1971, sect. 7. ¡ I 90/ sect. 5 (6),8 (4),9,15 (1). i i

-45- .¡ ¡ ; •¡ \ 86. The section prohibits importation of "objectionable" goods except under permit issued by the Publications Control Board. Normally customs officials refer any publication or object considered questionable to the Board, whose decision is final. 91/

7. Official Secrets Act (N2. 16 of 1956)

\ 87. This Act appears to have been originally designed to protect the country 1 against foreign espionage. A number of its provisions are specifically addressed to

:1,~ this problem. 88. The régime seems, howe'ver, to consider its domestic critics as dangerous as its foreign enemies - if nCG in collusion with them. Consequently, a second purpose has been added to the Act: to protect South Africa's secret police from any interference in their attempts to suppress domestic dissidence. To do this, the Act drastically restricts speech and press, heavily penalizing any revelations about the actions or methods of the Bureau of State Secur'ity ("BOSS").

89. Section 2 defines espionage very broadly. In addition, the 1aw specifically penalizes a number of acts which are commonly recognized as constituting the crime: breach of trust resulting in disclosure of plans, codes, etc.; receiving p1ans, codes, etc., believing them to have been communicated illega11y; falsifying

;,', statements; forging documents, etc. '¡ :1 90. The provisions restricting speech and press were added in 1969 after the establishment of BOSS. Section 3 (2) 92/ penalizes the publication or communication, :·1 .< in a manner or for a purpose prejudicial to the safety or interest of the Republic, of information relating to, inter alia, the police, any subject being investigated by the Bureau of State Security, or "the relationship subsisting between any person and the said Bureau". Under a literal reading of this subsection it may be unlawful for a former detainee to issue a complaint in a civil action for damages for mistreatment while being interrogated by Bureau figents. Anyon r - journalists are particularly vulnerable - may unwittingly corrt'ravene the Act by revealing information about a matter which, unknown to him, BOSS is investigating. 93/

91. The Act creates a number of presumptions which place the burden on an accused to prove his innocence in a criminal prosecution. Thus section 8 (1), which wou1d apply in a tria1 for contravention of section 3 (2), provides that if "from the circumstances of the case or the conduct of the accused, it appears that his purpose was .•. prejudicial to the safety or interests" of the Republic, he has to prove "tihe contrary".

92. The State may prosecute a defendant any place within the Republic, and the trial may be closed if the court finds it "in the in'cerests of the safety" of South Africa. 94/ , l i ¡ '1 211 Subsection (3). I 92/ Substituted by Act No. 101 of 1969, sect .. la. I 93/ HoU:s;9 of Assf:\r"bly Dec.:9:.t_~!3. (E1.nsard), 11 June 1969, co1s. 7798-99, 7812-13. \ ~.14 / soct.. »,

, -46- 1,

, d'1 ~ I .: I 1 '\ ~ I ,1 '! " ¡ ) , 1 , I __ ___o,._.1 _ .• •:\ t 8. Defence Act (No. 44 of 1957 93. While most of this Act deals with routine organizational matters affecting the South. Afric:.n rnilitary, one section near the end restricts free speech and press.

94. Section 118 (1) 95/ prohibits disclosure or publication of (i) any inforrnation about the composition, rnovements or disposition of South African military forces or (ii) any "staternent, comment or rumour" about any South African military person or about any activity of the South African or any foreign mi1itary forces which is co calculated to "prejudice or embarrass" South Africa's foreign relations or to alarm or depress the publico Subsection (3) makes any proprietor, printer, publisher or i l Jt r editor of any kind of pub1ication in 'which such forbidden information is published :¡s guilty of an offence~ thus turning all such persons into unofficial censors. ~s Subsections (2) and (4) prohibit publication or disclosure of secret or confidentia1 ,~ information re1ating to South African defence. :t '.' ... ;~ le 95. Section 118 (5) provides that in a pros€cution fer unlawful disclesure it shall I ,r be presumed, unless the defendant proves the contrary, that any information re1ating I .! to South African defence is secret and confidential. J 96. Some of the implications of this section can be gauged by a statement of the new Minister of Justice, Police and Prisons, Mr. J. T. Kruger, on 6 May 1974. Re 1 ! said that under new proposed legislation, which would extend Defence Act '1 ¡. anti-disclosure provisions to cover po1ice eperations, South African newspapers 1 would not be able to repeat further allegations of border atrocities involving South African policernen. 961 (Re was referring to a clairn made in the Rhodesian Rouse of n, Assernbly and reported in the South African press that two South African policernen on border duty had cut the throat of an African baby.)

97. Section 119 of the Act, which prohibits photographs, sketches, models, plans, I 1 notes, etc. of any area defined by the Minister of Defence also has the possibility ¡ of being used to b1ack out non-military inform~tion which the Government wishes to withho1d. ¡ " 1 c. Laws and !egulations restricting strikes, demonstrations and rneetings

98. Strikes, demonstrations and rneetings, even when completely non-vio1ent, offer Africans a means of demonstrating their solidarity and sense of purpose to whites. .. (Strikes, of course, if successfu1, a1so threaten white economic superiority.) They give a feeling of unity and mutual support to the participants and exert psychological pressures on apathetic or frightened blacks and whites te join in the struggle for freedom. 971 Consequently, they are barred by numerous laws and repressed as expeditiously as political considerations - both international and domestic - permito ::¡ '( I . 1; "1 I I i 951 Substituted by Act No. 85 of 1969, section 57 (a). · · ~ .·. ¡ ,j I ¡-, ~:l 961 Rand Dai1y Mail, 7 May 1974. i .) Ij '•.···.!·::( 971 "/A/ll the pious talk we hear about peaceful change via the ba1lot box is I fj. so much cant if people are not a1lowed the right of free assemb1y. Because it is at i 1,,, meetings, at free assemblies, that peop1e can be persuaded to change their opinions I l'I , and to give their votes to opposition parties, and are thereby ab1e to change the t" ' government of the day. That is the way it has been in democratic countries since J. time immemorial •.•". Statement by Mrs. Helen Suzman, House of Assembly Debates I I (Ransard), 22 February 1974, col. 1540. ~, .j j i -47- Í' , ~¡ ~i 1 ~_ ~ •.I .•.•. .i Ancient labour laws

99. Provincial Masters and Servants Laws and outdated South African laws are still on the books and applied fram time to time to make it a criminal offence for a (black) worker to breach his employment contract or to absent himself from his place of work without permission.

l. Industrial Conciliation Act (No. 28 of 1956)

100. This is the fundamental labour relations law for the white population of South Africa. It defines "employee" as "any person (other than a Bantu) employed ••• ", 98/ thus denying Africans all rights granted "employees" by the Act. These rights include the right to forill officially recognized trade unions and to strike (except as indicated immed~ately below). ;\

2. Bantu Labour (Settlement of Disputes) Act (No. 48 of 1953)

101. Until 1973, this Act made it illegal for an African to strike, the penalty being a fine of R600 ($840), three years in prison~ or both. In that year, in response to a series of strikes by blacks in Durban and elsewhere, section 18 was rewritten: to -permí t s'trikes - but. only···under such severely restrictive"'ccñditions'-as to make strikes virtually impossible. 991

102. New section J8 (1) prahibits instigating or inciting strikes or participation in a strike

as long as a contract or binding award remains in effect or

for ayear after any other order regulating the subject of the dispute was made binding on the employees or

if the employees work for a local government or a supplier of public services or utilities or

if the subject-matter in dispute has been referred to the Wage Board for recommendation or

if less than 30 days have passed since the dispute wasreferred to a.works committee for resolution or, if there is no works committee, to the area Bantu Labour Officer.

103. The penalty for striking without meeting the requirements of the new section 18 el) is the same as for striking in contravention of the former subse~tion. The decision whether to prosecute is, however, highly political. The Government may in i • <; a particular case decide to ignore the offence or to pu~is~ ringleaders by banning . '.1 ....'.. them or "endorsing them out 11 of the urban area, 1001 I (i Íi':'J~"¡í ~'\ 981 Section 1 (xi). ,\ 99/ Substituted by Bantu ~abour Relations Regul~tion Amendment Act, No. 70 of . , 1973, section 9. 1001 I.e., withdrawing permission to remain in the urban area, thus forcing them, under criminal sanctions, to return to a homeland. -48-

J " 3. Suppression of Communism Act (No. 44 of 1950)

104. Tbis protean 1egis1ation,a1so restricts the right oí assemb1y both by probibiting tbe convening of meetings and by prohibiting attendance at "gatherings" by yet another kind of banning order.

105. Section 9 (3) 101/ of tbe Act empowers the Minister of Justice to probibit a specific gatbering, a11 gatherings, or any c1ass of gatherings if he deems it necessary to combat tbe achievement of any of the objects of communism. Under this provision gatberings have been banned in tbe Grand Parade Area of Cape Town 102/ and in tbe City Hall area of Johannesburg 103/ - areas where protest marches and demonstrations were traditionally he1d.

106. Section 11 (g) 104/ makes it an offence to convene, give notice of, or preside at a banned meeting. Section 12 (2) 105/ creates a presumption that a defendant in a prosecution under section 11 (gr-is deemed to have convened the gathering if he persona11y or through an agent pub1ished or distributed a notice of the gathering or prepared for the assemb1y.

107. Section 9 (1) 106/ empowers the Minister to prohibit any person from attending a specific gathering or al1 or a specified c1ass of gatherings if he is satisfied that the person engages in activities ca1cu1ated to further any of the objects of communí sm, Anyone who contravenes such an order ("ban") is subject to 1 to 10 years' imprisonment.

108. Witb some amendment of the 1aw and more careful draftipg of banning orders, it now appears that courts interpret aban on lfat t en6 i,ng" a gathering as prohibiting the presence of tbe banned person in the immediate vicinity. 107/ Social as we11 as po1itical or business gatherings are norma11y covered in banning orders; 108/ and the courts have stated that as few as three persons constitute a ga~hering except when tbey are members of the same fami1y 1ivi~g under the same roof. 109/

101/ Added by Act No. 76 of 1962, section 7 (b). 102/ Government Notice 1221, Government Gazette No. 876) 14 August 1964. 103/ Government Notice 1587, Government Gazette No. 632, 18 October 1963. 104/ Amended by Act No. 76 of 1962, section 10 (1) (c ). 105/ Amended by Act No. 50 of 1951$ section 8 (b). 106/ Substituted by Act No. 76 of 1963, section 7 (a). 107/ E.g., staying i.n a car near the building where a meeting was held: R. v. Lan, 1956 (2) S.A. 246 (A.D.). 108/ S. v. Njongwe, 1972 (2) S.A. 903 (E•C.D. ) • 109/ S. v. Naicker, 1967 (4) S.A. 214 (N).

I 1_'1

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4. General Law Further Amendment Act (No. 92 of 1970, ~ection 15) 109. Section 15 (1) of the Act requires that perBons who have received a permit from a local authority to hold a procession must also obtain permission fram the district magistrate. Subsection (2) provides that the magistrate shall withhold approval "only if he has reason to believe that the holding or organizing of the procession may endanger the maintenance of law and order".

110. This section was introduced to prevent a recurrence of a situation in Johannesburg in which Witwatersrand students who had received approval from the local authority for a procession were nevertheless prohibited from proceeding by ... a magistrate under the Riotous Assemblies Act, allegedly because he feared for law end order. 110/ . r1" 1¡ 111. The Progressive Party Member of Parliament pointed out that, in the situation " " contemplated in the section, the district magistrate would normally consult the police; and the police could normally be expected to advise against granting leave. The only way to overturn such a denial by a magistrate is to show mala fides, an almost impossible legal task when he is granted discretion, as in the subsection. 111/

112. Thus the effect of the section is almost certain to be the prohibition of public demonstrations by critics of the régime.

5. Gatherings and Demonstratio..:p~ ).~t ~[.93. 52 of 1973)

113. This Act forbids any open-air "demo11. . .r ni' or "gathering" within one mile of the Rouses of Parli~ent,whether or not :.J i .merrt is in session. The Cape Town Parade Ground, traditional setting for demou ~-, tons, is within the one-mile limito

114 .. The "definition" of demonstration does not define the word. It makes clear, , r., however, that the Act's prohibition applies to every outdoor demonstration ­ whatever it may be - by even a single person, whether it be "for or against any person, cause, action or failure to take action". Presumably the prohibition applies to all kinds of actions from the silent vigils of the Black Sash to 11 guerrilla theatre".

115. A "gathering", as defined in the Act, means an "assembly, concourse or procession of any number of persons relating to or arising out of a demonet.r-atí-on". .. Taken literally, this definiticn might cover members of a political party going to a campaign rally_ To narrow the definition somewhat, section 2 (2) exempts from the Act's prohibition divine services, funerals, official gatherings, onlookers at the above, and gatherings and demonstrations for which the Chief Magistrate has granted written permission.

116. Section 3 of the Act makes it an offence to convene, organize, or encourage or promote by' force or threat a prohibited demonstration or gathering; to advertise

110/ Ho~se of Assembly Debate~ (Hansard), 23 September 1970, col. 4830. 111/ Ibid., 22 February 1974, col. 1336.

-50-

I "~._._ ~~ -""-~,--,,,,,,,,,,,,,-.,-,""""""-""---- ...... -.. '.... or give notice of such a demonstration or gatherine; to attend, preside at, address, or take part in such a demonstration or gathering; or to demonstrate in contravention of the Act. Th~ penalty is a fine of R300 ($420), six months in prison, or both.

117. The Act may be rationalized as protecting Parliament against undue influence or rowdyism. But it is more likely to isolate the legislature from unpopular points of view~ which can be effectively brought to its attention only by sorne form of dramatic and forceful presentation since normal channels of communication are closed to ~overnment critics. , '"

6. Riotous Assemblies Act (No. 17 of 1956)

118. This Act, which was originally modelled on the traditional English Riot Act, has been amended to permit the same kind of restrictions on gatherings founa in the Suppression of Communism Act and, indeed, to go beyond them.

119. As amended in 1974, section 2 (1) empowers a magistrate, without prior authorization from the ~1inister of Justice') to prohibit any or a11 gatherings in his district for up to 48 hours if he believes such gathering(s) would serious1y endanger public peace. To make sure that a magistrate has the power to make his prohibition known - a power challenged in the courts under the earlier form of the Act i12/ - subsection (a) enables the magistrate to promulgate his prohibition by notice in the Gazette or a local newspaper, 113/ by radio announcement, by affixing notices in prominent places in the area concerned or by oral announcement there.

120. Amended subsections 2 (3) and (4) (a) empower the ~lfinister of Justice to ,. prohibit any or all gatherings anywhere or everywhere in the Republic for any period if he "deems it neceasary or expedient .for the maintenance of public peace" or if, in his opinion, "there is reason to apprehend that feelings of hostility vTould be engendered between the European inhabitants of the Repub1ic, on the one hand, and any other section ofthe inhabitants of the Republic, on the other hand ... ir. His prohibition may be promulgated in any way spelled out in section 2 (2) for a magistrate's prohibition.

121. In introducing the amendments substituting the new section 2, the Deputy Ninister of Justice pointed out that: .. 112/ Ibid:, 21 February 1974, col. 1479. 113/ Promulgation in a single newspaper is a change justified by the Deputy ~1inister of Justice because in many rural communities there is only one newspaper. However, it seems highly unlikely that the Riotous Assemblies Act will be applied frequently in such lightly populated areas. The Frogressive Party ~1ember oí Parliament pointed out that this change in the law made. it likcly that large portions of the community where a gatherin~ was banned wou1d be unaware of the ban because the notice would have been published in only one paper, printed' in only one language and would therefore have been unread by that portion of the population that does not or cannot read that Language ,

-51-

I , '. :.. " """.'¡ .• ; ..!l'A~",,,,,.-,,,, >. __ - - ,'o • __.• _ _,~_~.""-_.....-..-_."'" _"_._,•. _.,_ ~.~ __._.._._~._ _~_~ .. ~~._:_.~~_ _._~ •• __••• ~ _~ ._. ,., "~>~.,~~_.,,,,"'_M_ "/T/he effect ••• is that not only are public gatherings of 12 or more persons in public placee affect.ed ••• las in the earlier text of the Act7, but any gathering oí any number of persons- in any place. The existing -requirement that those present should have a common purpose is being retained for those cases where all gatherings are prohibited. This falls away, however, in cases where specific gatherings or gatherings of a particular kind are prohibited. These amendments bring the concept of a gathering into line 'with the concept attached thereto in the Suppression of Communism Act, 195J. The manner in which gatherings are dealt with under that Act has a1ready proved to be very , effective." 114/ ! -- - ¡ 1 122. Government spokesmen justified some of the changes as g~v~ng magistrates, in particular, more flexibility to react quiekly to a fluid and fast-changing I, situation. 115/ They also spoke of the need to prevent public provocation by < I JO groups technic8,lly on private property although in the open air and visible and ! audible to the general public, as in the university grollnds or on the cathedral sbeps , g§J

123. The official opposition was quick to point out that the rewritten subsections could be used not only in the quasi-public situations referred to, but also in

1·:1'1."..·..,.1. private residences or clubs. Thus the ladies at a bridge party or the players ¡ in a chess tournament could b~ prosecuted as violators of a general ban on \,tl j' I gatherings iu a specified area. 117/ ! 1, ' 124. The sole Progressive Party Member of Parliament took a more serious position. \ I She attributed the changes made to the series of humiliations the Government had exper-Lenceé in the preceding years when student protesters arrested in Cape Town \ and Johannesburg were acquitted - some of the students, indeed, receiving ex gratia

\ payments for the treatment they had received at the hands of the police. 118/ j. "The main objectzíve or this Bill" ~ she predicted, "is te enable the Police to get r' cnto the campuses and clobber the students ••• ". 119/ She added that she believed ¡ that: L· l "these powers will be used against workers who hold meetings in protest against low wages. I believe, too, that these powers wil1 eventually also be used against all the Government's opponents ••• What we have to deal with today is a further assault on the right of assemb1y in South Africa ...". 119/

125. Within two weeks of the enactment of amended section 2 the Government prohibited any gathering between 1 and 6 April 1974 .. "which is held to demonstrate against the Head of State of Paraguay, President Alfredo Stroessner ••• or to protest or demonstrate against his

114/ House of Assembly Debates (Hansard), 21 February 1974, col. 1478. 115/ Ibid., co1s. 1478-79. 116/ Ibid. , cols. 1500-03.

---:-117/ Ibid., cols. 1491, 1509, 1511. g§! Ibid. , 22 February 1974, col. 1537. J:,l9/ Ibid., col. 1538.

-52-

I ¡I ...... __ ._" .,__~~i_ .... _~ visit to the Republic of South Africa or anything connected therewith or against any action, principIe or policy of the Government of a State." 120/

126. Amended section 2 (6) (~) makes it en offence to: convene, 121/ preside at, address, or by threats encourage or promote a prohibited gathering; give notice of or advertise such a gathering; or merely attend it. The last clause was added to keep away the curious and those who previously attended prohibited gatherings lsimply because they knew it was n.ot an offence ~

I ! "If mere attendance ••• is an offence, the vast majority ••• who would cbherwí se have attended ••• will probably stay away; possibly to such an extent that the g~thering attracts no attention. In addition, it will be r¡ possible for the Police, if a prohibited gathering does take place, to arrest .¡ ~ the ringleaders and remove them from the scene. Then it may not be necessary , i ! at all to create a situation of confrontation ••• Those attending innocently , will be aware of the prohibition; unless, of course, the prohibition was published in the Gazette in which case it ia presumed that eve~yone has knowledge of it." 122/ s 127. Section 2 (4) (b) also empowers the Minister of Justice to prohibit any person from attending any or all gatherings ir he believes that his attendance might result in hostility between whites and any group of non-whites. Subsection (5) provides ' 1 that if such a prohibition cannot be served on the person, it will be sufficient to serve it by publication in the Gazettee The penalty for violation oí such a prohibition is the same as for CSlliñg a prohibited gathering. 123/

128~ , Anyone who reproduces or publishes any speech or writing made by a person .a subject to such a prohibition is guilty of an offence. 124/ 129. Section 6 125/ empowers a police offiCer to close off and bar to the public any area where --he has reason to believe a p'rohibitedt', gathering will nevez-thef.ess be he'l.d , It is an offence for anyone to ebter or remai.n in such an area. while it is so closed to the public.

130. Section 7 __1261 indicates the procedure:thel' police shall take if a prohibited gathering tekes place or if persons at any~~athering kilI, seriously injure, or do I serious property damage,uor threaten such acts. It directs a police officer to call upon the crowd to disperse in a loud voIce - once, not three times, as traditional riot p,ets do and the earlier version of the South African Riotous I ~ ! I 120/ Gov~rnment Notice 592 of 1974, Gpvernment Gazette No. 4247, 1 Apri1 1974. 121/ "Convened" is broadly defined in :tection 2 (6) (2..). 122/ House of Assembly Debates (Hansard), 21 February 1974, col. 1481. 123/ Section 2 (6) (b). 124/ Section 2 (7) (a). Subsections 2 (4) (b) and (7) (a) correspond in large part to sections 10 guin and 11 (g) bis oí the Suppression of Communism Act. 125/ Substituted by Act No. 30 of 1974, section 9. 126j Substituted by Act No. 30 of 1974, section 7.

-53- Assemblies Act did. 127/ If persons do not thereupon disperse they are guilty of an offence. The police may use force to disperse them, but no greater force than necessary.

131. Section 8 128/ prohibits the use of firearms or other weapons likely to cause serious injury or death unless people at the gathering kilI or seriously injure someone or do serious property damage or attempt to do so. Firearms and other dangerous weapons are to be used "wíth all reasonable caution, without recklessness or negligence, and so as to produce no further injury •.. that is neceasary for thc attainment of tl1e object •••". 132. Sections 10 to 15 appear aimed at union activities and might be applied to unregistered black unions or associations., Section 10 prohibits intimidation to compel anyone to abstain fram do{ng anything he has a right to do (e.g, working .. r during a strike)e Sections 11 and 13 prohibit intimidating or annoying anyone in relation to joining a society or association; trespassing on work premises to influence workers; or using opprobrious epithets, harassing or blacklisting persons in respect to leaving or refusing to work.

133. Section 14 (1) makes it an offence for any employee of a local government or ofapublic facility or utility to break his service contract, whether he acts alone or with others, if he knows or has reason to believe his breach will deprive a substantial part of the community of the services supplied by his employer. Subsection (2) makes it an offence for any employee, alone or with others, to break his employment contract if he knows or has reason to believe the result will be to endanger human life or health, to cause serious injury, or to seriously endanger valuable property.

134. The penalty for violation of sections 10 to 14 is a fine of not more than R1,OOO ($1,400), up to five years in prison, 10 strokes, or any two of them. 129/

127/ The Progressive Party Member of Parliament questioned whether a mere oral annoUñCement would be heard in a noisy situation, particularly when not repeated so as to be sure that the crowd realized that officers of the law were ca11ing on its members to disperse. House of Assembly Debates (Hansard) 22 February 1974, cols. 1540-41. 1281 Substituted by Act No. 30 of 1974, section 8. 129/ The penalties are defined as those imposed by section 2 of the Criminal Law Amendment Act, No. 8 of 1953. It is not clear, however, whether the provision as to second and subsequent offenders is also applicable.

-54- D. Laws and regu1ations restricting passive f resistance and non-comp1iance n

135. Passive resistance was developed as a means of exerting po1itical pressure by Mohandas Gandhi ear1y in the twentieth century, when he sought to improve the condition of Indians in the Union. Some four decades 1ater, slightly modified, it reached its high point in South Africa during the Defiance of lfñjüs~ Laws Campaign of 1952-1953.

136. That campaign was intended to ca11 attention to African grievances against the pass laws and other aparthei~ measures, particu1ar1y segregation in pub1ic places. Thousands of Africans, some Indians and a few whites open1y and peaceful1y vio1ated the segregation 1aws, courting arrest, in the hope of clogging the courts and upsetting the judicial machinery. Unfortunate1y, a number of vio1ent riots e~entua11y broke out in the centres of otherwise peacefu1 protest activities. ns Conscious of growing b1ack unity as we11 as of the sympathy the Africans were winning abroad, the Government capita1ized on white fears of vio1enc~ and of the threat to the "white way of 1ife" to break the campaign by introducing legis1ation to ruth1ess1y pena1ize acts of protesto ne Criminal Law Amendment Act (No~ 8 of 1953)

L 137. Section 1 provides that any person who commits any offence, however minor, "by way of protest" or in a campaign to repea1 or moq.ify any 1aw OI' affect its administration may be punished, not by the penalty ordinari1y imposed for the same offence committed under normal circumstances, but by specia1 pena1ties: a fine not exceeding R600 ($840); imprisonment for no more than three years; whipping not exceeding 10 strokes; or any two of these. Thus an African who inadvertent1y forgets his pass wou1d norma11y be fined a few rands or spend a few weeks in gao1; but if the same African refuses to carry it "bY way of protest" he wou1d be subject, instead, to the harsh pena1ties set out in section 1 of this Act. 1301

138. Section 2 makes it an offence to incite or use any 1anguage to commit any act ca1culated to cause anyone to commit:an offence by way of protest or in support of a protest campaign. The penalty is R1,000 ($1,400), five yearsxin prison, 10 st~okes, or any two of them. Whipping must be imposed for a second offence.

139. Contributing or soliciting or receiving contributions from anyone, anywhere, .. is made un1awfu1 by section 3 (1) if the purpose is to assist a protest campaign; to assist anyone to commit an offence under the Act; or to assist anyone who has committed an offence under the Act. Money given or received in contravention of 1 subsection (1) may be confiscated. Postal authorities may open any 1etter or ::> package to determine whether it contains anything to aid a protest campaign. They

130/ In a co11oquy on the f100r of the Assemb1y Mrs. Suzman asked if a person is convicted under the Riotous Assemb1ies Act, and it is proved that the offence was committed in protest against another 1aw, would this render him 1iab1e to prosecution under the Criminal Law Amendment Act; and the Deputy Minister of Justice admitted that it wou~d. Rouse of Assembly Debates (Ransard), 22 February 1974, co1s. 1541-42, 1611-12.

-55- may confiscate any contents believed intended for such purpose unless the intended ,í recipient disproves such presumed purpose to the satisfaction of the Minister of Posts and Telegraphs. 131/

140. It appears that section 3 is designed primarily to prevent financial support of protest movements by sympathetic foreigners. But fears have been expressed that the section might bar aiding the family of a person convicted under section 1 or 2 or givi.ng a job to such a person on his rEüease from prison. 132/

! " ,'1 } 141. Séction 4 contains very involuted 1anguage which creates a presumption against any person accused of committing an offence by way of protesto If he is shown to have committed an offence, and if he comndtted it in the company of two or more other persons charged with committing the same offence at the same place and at approximately the same time, he is presumed to have committed the offence by way of protesto 133/ Re wil1 therefore be s~bject to the penalties imposed by the Act rather than the ordinary criminal law.

142. Under section 5 persons accused undei the Act of committing similar offences at approximately the same time and place ~ay be tried together even in the absence of any showing of conspiracy or common p~ose. Thus a11 have to share the opprobrium of the most unpopular defendan~.

143. 8ection 6 empowers the court to direCt attachment and sale of the personal property of a person convicted of an offence under this Act if he fails to pay any fine imposed within 48 hours. Thus a workman may lose the tools of his trade, a delivery boy his bicycle. , 144. A person convicted under the Act may be banned to a certain area or deported if he is not a 80uth African citizen. 1341

E. Laws and regulations restricting the use of force

145. The laws discussed above prevent blacks - and their allies - from using peaceful means to achieve freedom and dignity in 80uth Africa. Inevitably they have been driven to the use of force. And just as inevitably the 80uth African Government has moved to prevent and punish the use of force.

146. Most laws analysed in this section are designed either (i) to penalize persons for using (or, in some cases, advocating) force or external intervention or (iil to obtain information about such persons and their activities or plans. The Terrorism Act, the epitome of legislation discussed hereunder, combines both purposes.

131/ 8ection 10. 132/ Rouse of Assemb1y Debates (Ransard), 19 February 1953, cols. 1559-60. 133/ Ibid., cols. 1556,1561-62. 1341 8ections 8, 9.

-56- l. Suppression of Communism Act (No. 44 of 1950)

}.47. Section 11 (b) bis 135/ makes it an offence, punishab1e as for treason, 136/ to advocate, at any place inside or outside South Africa, the achievement of any ¡ of of the objects of communism by foreign or internationa1 intervention. The c1ause .1:¡ ,¡ applies to any person who is or has ever been a r'esi den-i of South Africa and to any I 2 ,¡ proscribed act ccnrrí t.t.ed at any time after the effective date of the Act a1though J section 11 (b) bis was enacted 13 years later. ;1 1 st 148. The scope of the offence, as drafted, is very broad. It appears that it 'J • covers an appeal to the United Nations to int~rvene in the Republic or Namibia. 137/ ;1 , 149. Prosecution of crimes under this c1ause is faci1itated by section 263 ter l38/ J of the Criminal Procedure Act. The presumption created by that section goes into ¡ effect on the mere production by the prosecutor of any document (newspaper, '¡ 1etter, etc.) which is certified by the Secretary for Foreign Affairs to be of foreign origino If the document indicates that a person with a name corresponding I to that of the accused made any statement at a specified time outside the Repub1ic,

the document constitutes prima facie proof that the accused in fact made such /1l statement outside South Africa at the indicated time.

150. Section 11 (b) ter 139/ makes it an offence, punishab1e as treason, to undergo training in o~der to further the achievement of any of the objects of communism. The c1ause app1i es to any person who is or ever was a resident of South Africa and to acts committed within or outside the Repub1ic at any time after the effective date of the Act. Thus this c1ause, 1ike secti..>n 11 (b) bis, constitutes retroactive 1egis1ation, applicab1e to acts committed as long as 13 years before the amendment added the c1ause. 140/

151. The c1ause actua11y penalizes two disparate kinds of activities: undergoing "training" and obtaining "Lnrormat.íon'' whicl{ cou1d be of use in furthering any of the objects of communism. A1though it is assumed that the former refers to guerrilla or mi1itary training, the fai1ure to qua1ify the terms in the c1ause means that the defined offence might inc1ude academic or vocational training or physica1 V'e fitness exercises. The similar fai1ure to qua1ify "information" raises the :nt possibi1ity that the c1ause cou1d apply to instructions on how to use a voting booth as wel1 as how to manufacture exp1osives.

) .. 135/ Added by Act No. 37 of 1963, section 5 (a). 136/ The minimum penalty is five years in prison (without pardon, paro1e, remission, etc.); the maximum penalty is death. • 137/ Rouse of Assemb1y Debates (Hansard), 25 Apri1 1963, co1s. 4774, 4776, 4787 (Minister of Justice confirms this interpretation). Section 18 (substituted by Act}No. 62 of 1966, section 5 (1» purported1y made the Act and al1 amendments app1icab1e to Namibia. 138/ Added by Act No. 76 of 1962, section 18, subsection (1) amended by Act No:-37 of 1963, section 12. 139/ Added by Act No. 37 of 1963, section 5 (b). 140/ S. v , Fazzie, 1964 :(J~) S.A. 673 (A.D.); House of Assemb1y Debates , , (Hansard), 25 Apri1 1963, col. 4780.

-57- 152~ The c1ause reverses the normal burden of proof. An accused must prove beyond a reasonab1e doubt that he did not undergo training 01" obtain information for the purpose of using it to further any of the objects of communism 01" of an un1awfu1 organization, inc1uding the comm:i.ssion of sabotage.

153~ The ful1 effect of reversing the 'burden of proof can only be measured, however~ when this c1ause is read with section 12 (1) ter. 141/ That subsection provides that if a person accused of contravening section 1i(b) ter_ is pro' red to have left South Africa unLawf'ul.Ly , then it Ls presumed that he 1eft Sout.h Africa for the·purpose of undergoing unlffivfu1 training. In view of the general refusa1 of the Government to grant passports to b1acks, virtua11y every African outside the Republic is p:."esumptively gui1ty oí' violating section 11 (b) ter.

154. In order to prove an African "las outside 80uth Africa - in or<.ler to bring inta effect the presumption of section 12 (1) te~ - the prosecutor may invoke the presumption created by section 263 ter ofthe Criminal Procedure Law, discussed aboye. The prosecutor may also invoke section 12 (4), which requires an accused to disprove any statement in any (incriminating) document (e~g., a membership list) connected with an un1awful organization. Thus presumption may be piled on presumption to condemn an accused.

2. "180-Day La't:ll1 (Criminal Procedur~) Act (N')' 56 of 1955-,- section 215 bis) 142/

155. This law in effect super-sedes the so-called "90-Day Law'", lJ.~3í wh í ch empowered senior police officers to arrest 1vi thout war-rarrt anyone suspected of having committed or intending to cornmit 01" hav:Lng ínformation about the commission of sabotage or any offence under the Suppression of Communism Act and to detain him in solitary confinement for successive 90-day periods until he responá.ed

"sat:i.sfactorily" to al1 quest í ons , 144/ The 90-Day Law has now lapsed.

156. The 180-Day Law i8 part of South Africa's body of permanent 1aw. It was enacted during the period when the Government was tryine to destroy the remaining infrastructure of the banned ANC and PAC ty punishing secondary leaders and intimidating their fol10wers.

157. Subsection (1) provides for the arrest and detention oí' any person "likely" to give evidence for the State in trials of specified fe10nies and political crimes 145/ if, in the opinion of the Attorney-General, there is danger that such a .. 141/ Added by Act No. 62 of 1966, section 3.

142/ Added by Act No. 96 of 1965, section 7. " 143/ Oener'a.L Law Amendment Ae~, No. 37 of 1963, section 17.

144/ As to auccess í ve periods of 90 days , see L07-r-. ~r. Poliee Station Cornmander, Druban,~1964 (2) S.A. 545 (A.D.). 145/ The specified eri:mes inelude: sedition; murder; arson; kidnapping; chi1d stealing; certain offences under the Suppression of Cornrnunism Act; sabotage; incitement, conspiracy, 01" attempt to cornmit any of the foregoing; treason; robbery; housebreaking; or attp.mpted robhery or housebreaking if there are aggravating circuillstances. See Part II biD of Secand Schedule to Criminal Procedure Act added by Act No" 96 of 1965, section 16.

-58-

, .': , ';:~ ~iiri(? 7:-' ~'." l' persoo may be intimidated or tampered with or may flee the country, or if it is in the interest of such person or of "the administration of justice!.!..

158. Subsection (3) provides that the detainee is to be released at the conclusion of the criminal proceeding in which he is a (potentia1) witness or six months after hí.s arrest, whichever Q§curs firs+'. During his detent.ion the potential vd tness does not have recourse to habeas ~orpus. 146/

159. Subsections (4) to (6) provide for solitary detent.ion of detainees, except for a week1y visit by a magistrate, and regu1ate othel conditions of detention. Subsection (7) deníes courts the ríght to order the re1ease of any detainee, to determine the va1idity of any regulation goveriling detainees, or te question granting or withho1ding of privileges for detainees.

"" .. 160. A summary of the provisions of the 1aw cannot indicate how it was used in the per-í od before the detention provisions of the Terrorism Act largely superseded it.

161. The purpose of the Act, according to the Minister of Justice, was primarily to protect potential witnesses from vengeance and intimidation, which was causing them to f1ee or stand mute, rather than testify. 147/ The witnesses consisted priroarily of former friends and co1leagues of accused ANC or PAC officials who had turned state' evidence or of accomplices of captured guerrilla leaders.

162. Although subsection (1) does not mention interrogation of detainees, there seeue no doubt that prosecutors and police in fact interrogated 180-day witnesses just as they had detainees under the 90-day law; more than one court suggested that this was permissible. 14~/ Moreover, there were allegations in Parliament that persons were detained in connexion with crimes clearJ~ not specified in the law, including the shooting of a race horse and Immdgration Law offences. 149í

163. The same kind of al1egations of torture made previously und.er the 90-Day Lav and subsequent1y under the Terrorism Act were-also made under the 180-Day Law. In Gosschalk v. Roussouw the affidavit submitted by the detaineeis wife as to her husband's condition when she visited him, as well as smuggled affidavits concern.ing mistreatment of other detainees held in connexion with the sarue proceeding, persuaded the court to issue an injunction against improper treatment of the detainees:

"If the respondent' s denial of any ma1-treatment .•• is correct, then ••• respondent wí11 suffer no inconvenience ••. by being temporarily forbidden to .. do wha.t he has never done and does not intend te do. On the other hand, if applicant;s allegations are correct, ••• then the refusal of interim re1ief might wel1 cause app1icant considerable inconvenience - and possible .. irreparable harm." 150/

14(5/ Subsection ('r). 1-47/ Rouse of Assembly Debates (Hansard), 11 June 1965, col:. 7918. 1481 Gosschalk v , Rossouw, 1966 (2) S.A. 4'76 (C); Singh v . Attorney-General, Transvaa1, 19~7 (2) S.A. (T), comment, 1966 Annual Law Survey, po 32; but see S. v. Reyman, 1966 (4) S.A. 598 (A.D.), comment, 1966 Annual Law Survey, pp. 355-56. 149/ Rouse of Assembly Debates (Hansard), 22 May 1967, co1s. 6435~36, 6442, 6467-68; 1 June 1967, col. 7044. 150/ 1966 (2) S.A. 476 (C), at pp. 493-94. -59- ..~ . ' .

• :. ." , ;.~ < '."'::", ",:".' .. "

However, this protection of a detainee was virtually unique. And even in that case the C01J.rt did not feel it had the authority to order the detainee into its presence to give viva voc~ testimonv.

164. As indicated aboye, most detainees are now he1d under the Terrorisrn Act:J which

authorizes indefinite detention incommunicado and Ls , accor-dfnrt to South J\.frican O" but not international - Latr , app1icable to Namí bda , 151/ During the two and one half years between enactroent of the 180-Day Law and the end 01" 1967 i t appears that 371 persons were detained under section 215 bis. 152/ (1 ?095 per-sone had been detained under the 90-Dav Law whi1e i t vas in effect.)153/ .¡ . -- ¡;~ , .. l~~ 3. General LaT¡J" Amendment Act (No ~ 62 _of 196§~_ s_ection 22)

k 165. 8ubsection (1) pe rmí.ts the arrest, ¡vithout warrant, of any p'~:rson believed to li 1'. be a "terrorist ; 154/ to have committed sabotage or an offence under certain 1:, , provisions of the Suppression of Communisro Act; or to be about to cowmit such an 0ffence. The arrestee may be detained for tro weeks for interro~ation and \~ thereafter, upon application to a Supreme Court, for such further periods as the ¡'~ I:~ court may froro time to time determine . }i I¡~!. 166. According to the Minister of Police, 90 persons werc detained under this i _,), \ ¡;., section between its effective date and Jlli1e 1967, when the TerrorismAct was l' í " adopted. It seems unlikely that it is much ernp10yed today. 155/ \ : \ f pl 4. "S~botage Act" (General Law Amenc1ment Act ) (No. 7~ of 1962, section 21) 1­¡: " l~ ¡" 167. This 1aw is in many respects a direct forerunner of the Terrorism Act, u. incorporating some identical or c10sely related phraseology. \~ r ' 168. It was enacted to stop sporadic acts of sabotage, which had begun to occur i I in late 1961. Although sabotage increased shortly after passage of the law, l," r eventually the leaders of the Umkonto We Sizwe ("Spear of túe Nation"), a11ee;ed ¡: ' to be responsible for the more serious acts, were caught, tried and convicted. 169. Subsection (1) oí the law defines the new crime of sabotage, which it creates 1, as:

[ (a) Committing a wrongful and wi1ful act which lnjures, destroys or ~. ~ .. l' endangers public health or safety; w~ter supplies; public uti1ities or services; t g supp~y I ~ or distribution of food, fuel, water; maintenance of 1aw and order; free , , movement of traffic; or state or private property; ..

151/ The Terrorism Act was enacted after the South West African mandate was revoked by the United Nations General Assembly. 152/ House of Assemb1y Debates (Ransara), 27 January 1967, cols. 238-39; 6 February 1968, col. 20.

( 153/ IPid., 29 January 1965, col. 252. ¡ 1: \ 154/ There is no definition of '¡'terrol'ist". 155/ One person was detained. tmder the law in the next seven months. House of Assemb1Y Debates (Hansard), 6 February 1968, col. 19. -60- se (b) Attempting conspíring, inciting or aiding such an act; ce (c) Illegally possessing any explosive, firearm or weapon; or

(d) Being illegally on any land or in any building.

The penalty for sabotage is the same as for treason.

1 170. Although the definition of sabotage excludes any destructive or injurious act which is lawi'ul or merely negligent, it is drawn so as to include many acts , .. which do not endanger the public at all: e.g., chalking sJogans on a wa11 (injuring private proper-tyl ; "fihe not unfamiliar rural offence of barring a roadway"; trespass. 156/

171. Subsection (2) provides that a person who has committed an illegal act as defined in subsection (1) shall not be convicted of sabotage if he proves the al1eged offence, objectively regarded, was not caLcufatied and that such offence was not commi tted "Ti th intent to produce any of the following effects:

To cause or promote general disturbance or to hamper maintenance of law and arder or to encoura~e insurrection or forcible resistance to government;

To cause financial 10ss to any person or the State or to prejudice any industry or undertaking 01' food dist1'ibution;

To serinusly injure or endanger anyone or to seriously interfere with public utilities 01' se1'vices~

To encourage the achievement of any politica1 aim or to cause or further hostility between "dí r re rent sections of the popul.atí.on' of South Africa; or .. To "embarrass the administration of the affairs of the State".

172. This subsection reverses the normal burden of proof, which requires the prosecution to prove a specific criminal intcnt on the part of the defendant. Instead, the accused must prove both that he did not intend to produce any of the li listed lI ef f ect s " and also that, ilobjectively regarded , his act was not calculated to produce any of those effects.

.. 173. While a defendant may be able to sustain this burden in a simple case, 157/ it will usually be very difficult for an accused who has committed an illegal act as defined in section 21 (1) to show that he did not intend to produce any of the effects listed in su~section (2), since these effects are stated in extremely b~oad and general tenns. In S. v. Xankana, 158/ the Supreme Court held that an unsuccessful attempt to damage a conveyor belt in a state railway repair shop was within the definition of sabotage as prejudicing an Hundertaking".

156/ 1962 Annual Survey of South African Law, p. 49. 157/ E.g., barring a road for the purpo8e of rounding up strayed stock. 158/ 1966 (1) S.A. 733 ~O).

-61-

.I ~:,,~,,~·.ri'- "ri"''''''_'~;"'''''''''':''''-'':''''''''''''''~.~~_''''''''~ __ . _', 174. Subsection (3) requires the written authorization of the Attorney-General to institute a prosecution under this law. Thus it makes politica1 considerations conclusive in deciding whether to prosecute, threaten to prosecute, or not prosecute.

175. Subsections (4) and (6) contain prOV~S10ns which tend to prejudice persons accused of sabotage. Inter alia, they provide:

that the prosecutor may decide where the defendant is to be tried without regard to where the alleged offence actually occurred;

~hat alleged saboteurs might be tried jointly even if accused of separate offences under the law;

that tria1s shall be by a judge sitting without assessors, a~p¡y±ng magistrates' court procedure;

that the accused shal1 be tried summari1y (withóut preparatory examination);

that juveniles convicted of sabotage are not eligib1e for the specia1 treatment normal1y given to non-adult crimina1s;

that no person convicted of sabotage may receive a suspended sentence or other alternative to imprisonment; and

that no person tried for sabotage may plead double jeopardy on the grolli,d of autrefois acguit.

5. Terrorism Act (No. 83 of 1961)

176. This A~t, desigaed to create a crime with which Namibian freedom fighters could be charged retroactive1y, constitutes the nadir of repressive legis1ation. It creates the monstrous, vague, and al1-encompassing retroactive 159/ crime of "terrorism" and authorizes indefinite detention incommunicado of anyone suspected of being connected in any way with terrorismo

Terrorism defined

177. Section 2 creates a three-fo1d definition of terrorismo Subsection (1) states la that the punishment shall be the same as for treason.

178. The basic definition of terrorism is found in subsections (1) (a) and (2) of • section 2. Subsecticn {1) (~) prQvides that a person sha1l be guilty of terrorism if he, "with intent to endanger the maintenance of Law and order in the Republie or any portion thereof,_in the Republi.2. or elsewhere, commits any act or attempts to commit ••• anyact". /Emphasis added..:../ Conspiracy, instigation, incitement or

commanding, aiding 9 advising, encouraging or proaurfng another to do any a~t with 'che requisite intent also constitutes terrorismo

159/ The Act was made effective five years before i ts enacJ·ment.

l· -62- \ Ji. ' (. I ;- ¡ 179. Like the definition oí most crimes, this one includes two elements: an act and a criminal intento

ISO. The definition of the act is totally unlimited. Thus, if a person has the requisite intent, he may be hang~d for committing an act which neither endangers, nor is likely to endanger, 80uth Afriea or its citizens.

lSl. The requisite intent - to endanger the maintenance of law and order - is, on its face, very broad and vague. It can be argued that every intentional crime is a form of terrorism: thus participating in a peaceful demonstration in violation of traffic regulations is, under the definition of section 2, a capital offence. 160/

lS2. The definition of requisite intention s however, is immeasurably b~oadened by subsection 2 (2), which establishes a presumption against every person accused under section 2 (1) (a). If the accused's act "had or was likely to have any . of .•. /12 listed/ result6a~,then he is presumed to have had an intent to endanger , the maintenance of law and order. The burden of proof is shifted to the accused at that point, and he will be found guilty unless he proves, beyond a reasonable doubt, that he did not intend any of such "results". The 12 "results" listed in subsection (2) are:

(a) To hamper or deter any person from assisting in the maintenance of law and order;

(b) To promote the achievement of any object by intimidation;

(e) To cause or promote general dislocation, disturbance or disorder;

(d) To cripple or prejudice any industry or undertaking or the production or distribution of commodities or food-stuffs a~ any place~

(e) To cause, eneourage or further an insurreetion or forcible resistanee to the Government or the Administration of South West Africa;

(f) To further or encourage the achievement of any political aim or of any social or economie change by force or violenee or under the guidance or in eo-operation with any foreign government or foreign or international body or institution; .. (g) To endanger or seriously injure any person;

(h) To cause financial loss to any person or the State; "

(i) To cause or enco11rage feelings of hostility between white and non-white South Afrieans;

(j) To endanger, damage or destroy the supply or distribution of pub1ic utilities and serviees, fuel, food-stuffs and eommunications service and installations;

160/ A. Larson, "South West Africa: Testing Ground of Internationa1 Human Rightsrr-(speech delivered before the Section on Individual Rights and Responsibi1ities oí the P~er~can Bar Association, Phi1ade1phia, 5 August 1968), pp. 15-16. -63- (k) To obstruct land, sea or air traffic;

(1) "To embarass the administration of the affairs of the State".

183. An analysis of subsections 2 (1) (a) and (2) read together indicates that the fol1owing acts would constitute terrorism: a strike (likely to achieve an object by intimidation (clause (b), to cause financial 10s5 to an employer (h), and possibly to-endanger·tbe distribution of'food-stuffs or other services (j»; 161/ co-operation with UNICEF to reduce infant mortality in the Transkei (likely tó-'• further'social or economic change by co-operation with an international x institution (f»; conducting an advertising campaign for a better floor wax (likely to cause financial loss to the pur~eyor of a comp~tit~Ye product (h»; printing a news story exposing speculation by a Cabinet Minister (likely to embarrass the administration of the affairs of the State (1».

184. A South African publication defending the Terrorism Act claims that if an accused destroyed a radio mast, thereby admittedly embarrassing the admin.istration.. of the affairs of the St'ate (which has a monopoly of broadcasting), he might neverthe1ess exonerate himself of the charge of terrorism by proving that his only intention was non-political theft of the material of which the mast was constructed. 162/ ~While the thief's statement, if believed, would exonerate him of terrorism under clause (1), it would not, unfortunate±Y3 exonerate him under clause (h) (causing financial loss to the State), or (j) (endangering or destroying radio transmitting, broadcasting or receiving services or installations).

185. Section 2 (1) (b) defines an alternative form of terrorism: undergoing any training anywhere which could be useful to any person intending to endanger the maintenance of law and order. The crime alno covers attempts, consf>iracy, incitement, etc.

186, The intention of the provision may be to punish training for sabotage or guerrilla warfare; but the wording is so hroad as to cover sending one's children to school or granting a scholarship: the kind of training it is an act of terrorism to undergo is any study from which it is possib1e to derive something of use to somebody who intends to endanger' the maintenance of law and order. Thus a standard chemistry course cou1d be of use to someone who wanted to manufacture exp1osives; 1anguage courses could be useful to an anti-South African propagandist; and phi1osophy might aid a revolutionary theoretician. .. 187. It appears that once the prosecution has alleged that the training which the accu5ed underwent is of a type that could be of use to someone with the intention to endanger 1aw and order, the accused can win acquittal only by proving beyond .. a reasonable doubt that he did not undergo such traini.ng "for the purpose of using it or causing it to be used to commit any act 1ikely to have any of the results referred to in subsection (2)".

161/ Section 2 (1) creates a number of separate offences, not merely one of ~patticipating in terroristic activities". S. v. Ngcobo, 1970 (1) S.AQ 697 (N). 162/ Department of Foreign Affairs of the Republic of South Africa, South Africa-and the Rule of L~~ (1968), p. 49.

j; f;r: {l. -64- i.: )"r. 1· ie . 1- I í¡- 1

. ,

...-~-~.'''''''-''~ 188. The third alternative form of terrorism is defined in subsection 2 (1) (~): possessing any explosives, ammunition, firearm or weapon unless the possessor can prove beyond a reasonable doupt that he "did not intend using such explosives ••. /etc./ to commit any act likely to have any of the results referred to in subsection (2)". d 189. Under this definition the prosecution does not have to allege even a constructive intent to endanger the maintenance of law and order. Once possession is proved, the entire burden of disproving guilt rests on the defendant. If he possesses arms legally and injures someone accidentally, the burden is on him to prove that he did not intend to use the arms to commi t~·.the act causing the injury not that he didnVt intend to cause the injury - since the act clearly resulted in bodily injury or financial loss (result (g) or (h)). 163/ Even if no injury occurs, he may be called upon to prove that he did not intend to use the arms to commit any act likely to produce any of the listed results. Thus a sober householder who keeps a licensed gun to drive off housebreakers is by detinition a terrorist since his intent is to achieve an objective by intimidation (result (b)), if not to cause burglars serious bodily injury (resultO (g)).

190. The failure to define "weapon" makes it possible to charge Government opponents with terrorism lor carrying the tools of their trade - knives, hammers, scythes, crowbars, spanners, etc.

191. Harbouring or concealing a terrorist a1so constitutes terrorismo 164/

192. The Act has a number of procedural provisions which add to the problem of an accused.

193. Section 2 (3) makes admissible against an accused any document connected with any organization with which the accused is connected• • 194. Section 4 (1) gives jurisdiction to South African courts to try a person whose alleged crime was committed outside the Republic; normal1y they would not have jurisdiction in such cases. Subsection (2) empowers the Minister of Justice to have terrorism trials held anywhere in South Africa that he may designate. Thus in S. v. Eliaser Tuhadeleni, 165/ 37 Namibians were tried in Pretoria for offences allegedly cornmitted in Ovamboland and other parts of Africa.

195. Section 5 ~~) provides that persons accused under the Act may be tried jointly even if charged with separate offences.

196. Section 5 (h) denies an alleged terrorist the defence of double jeopardy; acquittal on a charge based on one legal theory under the Act does net prevent a second trial on the same facts but another theory.

Detention

197. Section 6 of the Act provides fer indefinite detention incommunicado of

163/ House of Assembly Debates (Ransard), 2 June 1967, col. 7081. 164/ Section 3. 165/ 1967 (4) S.A. 511 (T), affirmed in 1969 (1) S.A. 153 (A.D.). -65-

,'- --~~.,~~> ~ ..__.._-, ,.~ -.-" ..-.. ~ --.' .,'.- , -..~ :.•"- _.~-~ ,< ~-~ •.-,~., ..~.•". -,., . _..~_.•~ -~, .----.-.--'----.••.-,.----~.---.--.---.~--.------••-- --.-.~ -----.------~------..----... --.------,----....-- .- •. .__ .. __ L. __~ __.• ._L ...~.. • __ . ~_.:__.,, ...... :;.__ ._~;, •.::_~.: ~ .;.,~_,;:~:;."..::;.. _:_..~_. __ .._~ .._:;.:_~ :.. :.:...~ ...... • • ...... _ , .:'~"'''_'Ui_.~----'''''''''' ¡, J ¡:. ! ";. persons believed to be terrorists or to have information about terrorismo Such a pers0nnmay be detained for interrogation until the Commissioner of Police is satisfied that the detainee "has satisfactorily replied to all questions ••• 01" that no useful purpose will be served by his detention ••• 11.

198. There is no habeas corpus: section 6 (5) forbids any coul"t to "pronounce upon the validity of any action taken under this section" or to order the release ":'f l' 1.\ of any detainee. This clause is more sweeping than the prohibition in the 180-Day ¡I;'~,1 r:, , Law. In Qne case, owing to a fortunate concatenation of circumstances and energetic ,¡ counsel, a court was persuaded to intervene to prevent continuing abuse of a i\~ ,~~ detainee; 166/ it was argued, apparently with success, that such torture was not an action permitted by, and therefore not an.action Htaken under", the section. Unfortunately, the pusillanimous refusal to grant an interim interdict against further torture in Madikizela v. Minister of Justice 167/ is fal" more typical of the disposition of the few cases that ever reach the courts.

199. Subsection (6) provides that a detainee shall be held in solitary confinement. No one except police and prison officials have access to him, although a magistrate shall visit him in private once a fortnight Ilif circumstances so permit". Families are not notified as to the whereabouts of detainees 01" even of the fact that they have been detained. No one - not even a Member of Parliament raising questions on the floor - is entitled to any information about detainees. 168/

\ ! ¡. 6. Pub1ic Safety Act (No. 3 of 1953) ,1,: I (, 200. This law was enacted at the time that riots and violent demonstrations broke out as an aftermath of the De:iance Campaign. Its purpose is, according to the long title, to protect the pub1ic safety "in case of emergency".

, , r:l< 201. The Act provides for the imposition of" a f'orrn o f quasí- martial law appropriate l to a situation invo1ving insurrection 01" threatened invasion. In fact, the law has been invoked only once: after the Sharpeville massacre. 169/

202. Section 2 empowers the State President to declare a state oí emergency anywhere in or throughout South Africa if, in his opinion, public safety i8 serious1y threatened and ordinary law is inadequate. A proclamation is valid for no longer than 12 months, but it may be l"enewed for additiona1 12-month periods.

203. Section 4 provides for the Ministc ' of Justice, by notice in the Gazette, .. • to exercise the State President's power "whenever owing to specia1 circumstances it is in ••• /his/ ppinion •.• urgent1y ne cesaary to do so ...". But the Minister's proc1amation automatical1y 1apses at the end of la days. • 204. The State President is authorized by section 3 to issue l"egulations to

166/ Shityuwete v. Commissioner of Po1ice (unrepol"ted TPD judgement, 23 Janual"Y 1968); 167/ Unreported judgement of TPD, 23 February 1970. 168/ House of Assemb1y Debates (Hansard), 1 June 1967, col. 7043; 2 June 1967, co1s. 7105, 7118-19• .i i' ,I 169/ See Brink v. Commissioner of Po1ice, 1960 (3) S.A. 65 (T). -66-

,-. , '" .._------"------.--._-_._,,'------.--.-....--_._'_._-.'--'---- .-... "' ..----"., ..--"--_.,'"..--,._,,.,--" _.•,--~----.~-.!..-.:..---....- preserve public safety and terminate the emergency. From the only court cases testing this power it appears that the judiciary wil1 not look into the wisdom or necessity of the State President's regulations, but wi11 strike them down only i~ they conflict with specific limitations found in the Act, 170/ as the prohibition on drafting persons' in the services by regulation. 171/

205. Regulations may be made effective outside the area in which the emergency has been declared, and they may carry criminal pena1ties for contravention, a1though the Act restricts the pena1ties which may be imposed. Regu1ations may be made e retroactive, except regulations making previously legal acts criminal. 172/ Subsection (4) requires the Minister of Justice to notify Parliament or persons detained under the regulations for four weeks.

206. As indicated above, this Act was invoked after Sharpeville. Proclamation 90 of ) 30 March 1960 173/ authorized the detention of hundreds of persons, most of them ar~ested in pre-dawn raids. Proclamation 91 174/ promulgated emergency regulations, which, inter alia: gave magistrates and po1ice vast powers to prohibit meéfmngg, to conduct warrantless searches and seizures, and to arrest persons without warrant and detain them without trial; provided for arrest without warrant and trial in gaol of Africans who did not have passes; made it a crime to make a statement subverting authority, opposing emergency measures, causing interracial hostility, or inciting strikes for political or economic objectives; and empowered the Minister of the Interior to suspend any subversive publication and to order the activities oí a subversive organization discontinued.

207. Under these regulations more than 11,000 Africans were detained, as wel1 as some 200 whites, Coloured people and Asians. 175/ Most of them were arrested without any reason assigned or plausible cause. 176/ In many cases they were subject to arduous conditions, against which they had no recourse; 177/ and they were denied access to fami1ies and even to legal counsel. 178/ Four hundred were sti11 in ;custody when the emergency was lifted on 31 August 1960. 179/

ti

170/ R. v. Maphumul0, 1960 (3) S.A. 793 (N); but see Brink v. Commissioner of Police, supra n. 171/ Section 3 (3). 172/ Section 3 (1)-(3). As to retroactivity, see R. v. Manthutle, 1960 (4) S. A. 827 (C)...... J73/ Government Gazette Extraordinary, Noo 6403, 30 March 1960• 174/ Ibid., somewhat amended and supplemented in the f'o.l.Lowí.ng weeks. 175/ House of Assembly Debates (Hansard), 3 February 1961, co1s. 698-990 176/ Stanton v. Minister of Justice, 1960 (3) S.A. 353 (T); Mawo v. Pepler, N.O., 1961 (4) S.A. 807. 177/ See facts cited in R. v. Maphumul0, supra n. 170. 178/ Reg. 23 (1) (h). But one court found this unreasonable under the circumstances: Brink v. Commissioner of Police, 1960 (3) S.A. 65 (T). 179/ South African Institute of Race Re1ations, Action, Reaction and Counteraction (Johannesburg, 1963), p. 32.

-67- F. Laws and regulations restricting the activities of Africans outside the "white area"

208. The laws discussed in the preceding sections apply, as a matter of law, to all Africans. Many of these laws, however , affect urban Africans - whether permunent residents or "temporary sojourners" - more than those in the "homelands" (African reserves). By contrast, the laws analysed below affect primarily Africans outside the urban ar-eas , Since, however, any African - even one 1~rith "permanent" residence rights - can be removed from the "whd t e areaiI, every African is potentially affected by these laws.

I " ' ".f.' ; 209. These laws, although enacted in the name of lIadministration", are designed to establish firm control over Africans in the homelands so that they cannot work for i".':.'.'f',j , change or propagandize or incite their fellows to that ende ! .lo,if r\~ : l. Bantu Administration Act (No. 38 of 1927) r'~, . l" \' F~ 210. This Act established the b~sic structure for the government of Africans outside the white area. It has lasted a half century despite the transformation r: of "native reserves" into IIbantustans" and then into "homelands".

\; The tone of the Act, as well as its implicit philosophy, is essentially r 211. l' authoritarian, reflecting, it would appear, both basic Afrikaner political 1,' attitudes and Afrikaner conceptions of African political ideas and ideals. iP t,1, ¡ 212. The Act vests substantially unlimited power in the State President as "supreme L I ¡ chief" of all Africans. 180/ Some of his powers would appear to have devolved to 1: the chief ministers of the purportedly self-governing homelands, but none that prevent the application of emergency measures to the homelands or that preverrt the 1: I carrying out of any actions deemed nececlsary for the benefit of the Republic.

\...'.~. ¡' ¡ 213. Section 5 (1) (b) 181/ empowers the State President, "whenever he deems it expedient in the general public interest", to order the removal of a tribe, a part of a tribe, or an individual African from one part of South Africa to another. An African is not entitled to advance notice of a removal order, 182/ and he may be compelled to remain at the designated place as long as the Minister of Bantu Administration and Development determines. 183/ Re may not obtain a stay of such

180/ Section 1, substituted by Act No. 42 of 1956, section 2. 181/ Substituted by Act No. 7 of 1973, sections 1 (a), (b). 182/ Amendment made by Act No. 42 of 1956, section 3 (a). This amendment was added to circumvent the ruling of the Supreme Court in Saliwa v. Minister of Native Affairs, 1956 (2) S.A. 310, which held prior notice necessary under the Roman-Dutch principIe oí audi alteram partem. Rouse of Assembly Debates (Ransard), 26 April 1956, col. 4463. 183/ Parliament shall be informed of any order affecting an individual or a portion-of a tribe if it remains in effect after ayear; if Parliament disapproves, the order shall cease to be effective. No example of such disapproval has been f'ound,

-68- an order on any grounds, 184/ and he may have the order set aside by the courts only if he can prove bad faith on the part oí the State Presidente 185/

I all 214. The authority to remov€ Africans appears to have been used for two purposes: nt to get rid of persons involved in factional fights within a tribe; and to get rid an of Africans, particularly tribal leaders, who oppose Government po1icy. 186/ The ide power appears to be used less frequently today, but apparently well over 100 ence Africans have been removed since the Nationalist Party carne to power. Some were eventually allowed to return home, but a nu~ber died in banishment, usually in abject poverty. 187/

to 215. Section 29 (1) makes it an offence to utter any words or do anything for intended to promote hostility between Africans and whites.

216. Before the massacre at Sharpeville, the courts often interpreted this provision so as to protect po1itical comment. 188/ However, the more polarized political climate and the general shift of judicial decisions towards a pro-Government stance in recent years makes it unlikely the earlier rulings wi1l be followed today. 1 217. If a person other than an African contravenes section 29 (1) in a homeland, the State President may order him not to enter the homeland for a stated period; if an African commits such an offence outside a home1and, the State President may order him not to be in any area outside his home1and for a specified periodo 189/ Subsection (4) makes it a separate offence to disobey such an order by the State Presiqent. The Minister of Bantu Administration and Development may declare any ~eme non-South African convicted under section 29 (1) an undesirable inhabitant and iO have him deported. 190/ Evidence of an offence under section 29 (1) or anything used to commit such an offence may be ordered destroyed or confiscated by the .he magistrate too whomit is. brought •.191/ • 218. Section 27 grants the State President broad powers to make regulations as to numerous aspects of African 1ife. ,rt An 184/ Section 5 (4), substituted by Act 54 of 1952, section 20. h ~851 Mabe v. Minister of Native Affairs, 1957 (3) S.A. 293 (T). 186/ House of Assembly Debates (Hansard), 13 October 1966, col. 4157; Hahlo and Maisels, "The Rule of Law in South Africa", 52 Virginia Law Review 15 (1966); • " 1 see Mabe v. Minister of Native Affairs, 1957 (3) S.A. 293 (T). 187/ South African Institute of Race Re1ations, 1962 Annual Survey of Race as ~ t Re1ations (Johannesburg~ 1963), p. l~. ive 188/ R. v. Sutherland, 1959 (4) S.A. 66 (T); R. v. Nkatla, 1959 (1) S.A. tch 26 (COY:- :.¡ .} 18~1 Section 29 (3). ) 1 190/ Section 29 (5), substituted by Act No. 79 of 1957, section 4. See a1so { subsections (6)-(9), added by Act No. 79 of 1957, section 4. ss , 'f¡ 191/ Section 29 (2).

-69-

227. Subregulation 3 (7) makes it an offence to hold or be present at an un1awful meeting or at a 1awfu1 meeting if the person in question was prohibited from attending it. Court decisions have shown a certain sympathy for Africans at beer parties, even when po1itics were discus~ed; 195/ but they ~~ve been hard on students gathering even informal1y to discuss grievances. 196/

228. Regulations 4 to la govern entry into, departure from, and conduct whi1e in 1 "prohibited areas", i.e., specified areas in which the worst vio1ence hed occurred or was anticipated. They prohibit lon-residents (very strict1y defined) from entering without officia1 permission and residents fram 1eaving without authorization. Permits are subject to whatever conditions the Bantu Comndssioner may in his discretion determine; and fai1ure to comply with them constitutes en offence.

229. Regulation 5 makes it an offence to fail to report anyone un1awful1y in a prohibited area and empowers the local chief to arrest him summari1y. A court may :t order confiscation of a motor vehicle used to convey an unauthorized person into a prohibited area. 197/

230. Regulation 11, e~titled "Subversive statements", is intended to suppress disrespect and resistance to chiefs who try to enforce unpopular government po1icies.

231. Paragraph (a) makes it un1awful to write or utter any statement or do any act which is intended or "Lí.keLy" to subvert the authorit·y of the State or oí' any

Bantu Commissioner, government official, chief or headmar., Under this pr-ovd s í on a newspe~er director was convicted for printing an article criticizing the terrorist activities of a headman's bodyguards. The court found that the impression given by the article, that the headman either permitted the guards activities or was so lacking in authority that he could not prevent them, was "clearly derogatory or the headman' s authority". 198/ .. 232. Paragraph (b) prohibits thre~ts of boycott. The fol10wing two paragraphs make it unlawful to organize or take part in any "organized boycott" of a meeting called by a South African or Transkeian official; or a boycott against anyone in 1 arder to cause him 10ss, disadvantage or inconvenience. 233. Paragraphs (e) and (f) make it unlawfu1 to disobey a 1awful order, including an order in accordance with native 1aw and custom, issued by a chief or head; to treat a chief or headman with "disrespect, contempt or ridicule"; or to fail to accord hiro the respect and obedience and render him such services as are required by native 1aw and custom.

234. These provisions are the anly support for many chiefs who accept and • implement government po1icies. Regulation 11 is doub1y d.isliked i'or protecting unpopular chicfs and for requiring educated, urbanized Africans to submit to traditional concepts and rules laid down by uneducated, unsophisticated and reactionary chiefs, who are afraid of their own people.

195/ S. v Li1ela, 1961 (4) S.A. 1 (E); S. v. Malashe, 1962 (4) S.A. 57 (E). 196/ S. v Gcolote1a, 1961 (4) S.A. 530 (E). 197/ Regtüation 9. 198/ S. v Hjul, 1963 (3) S.A. 647 (A.D.). -71-

-. . , ,."..__ .-,.,..._..,~., .. ~."..... ",.--~, '.-' ._.", .••;.:';"_~ .._~.,.~~ _ •. ~._.' _,..4 ._._~,t __ ._.... ~,; __ ~~_ ... ""..._._.... ~_._. __;._.•_...... _..;_... __:... _~~h· __·__.. ·.~_. .~,.· __., •.•• ._. ' .. ~, •.•,__.. ~".~.- .•.- __ ",., ...;. .. ---~. _. - ...... '" ~_ •• _-.-..--,-.....- •. ~_."-- ...... - 235. Regulation 12 empowers certain chiefs to remove individual Africans from thei.:r. homes to any other place within the jurisdiction, either temporarily or permanently. 199/ The order may be issued witho~t prior notice, but action may be stayed pending appeal to the Chief Bantu Comndssioner, whose decision is final. Refusal to obey a final order is an offence. An African may be compelled to move by force, and the chief may have the African's dwelling demolished without liability therefor.

236. Regulation 13 empowers a chief to try an African who refuses to obey a removal order and fine or imprison him for disobedience. Thus he is prcsecutor and judge of aman who may llave been ordered to leave in the first place because of bad blood between the two.

237. Regulation 14 empowers the Minister of Bantu Administration and Development to prohibit any person, without prior notice, froro entering, being in, or leaving any part of the Transkei. Failure to comply is an offence.

238. Regulations 16, 200/ 16 bis 201/ and 17 restrict the rights of persons aggrieved by actions taken under the proclamation. The first two rnake it substantially impossible to obtain compensation for wrongful acts taken unless the victim can prove mala fides. The third provides that, except as otherwise specifically provided, !!2. action taken under the regulations may be stayed pending the outcome of an appeal.

239. Regulations 19 and 20 202/ foreshadow various Republican detention laws. They authorize a Bantu Commissioner or police officer to arrest, without warrant, anyone he suspects of "having taken part or intending or having intended to take part in •.• /an/ offence or intended offence /under the regulations7 .•. or who •.. is in possession of any information relating to the said offence or-intended offence .•• ". Such arrestee may be detained and questioned by the official until he i3 satisfied that the detainee has answered fully and truthfully all questions related to the (intended) offence. A detainee has no right to consult with a lawyer.

240. Hundreds of Africans were detained under these provisions in the early 1960s. 203/ Detainees were held from a minimum of one to a maximum of 210 day~2041 many of them being held in solitary confinement during their entire

199/ It is hard to obtain figures on the number of persons who have been subject to removal under regulation 12, but 17 persons were reported to be under removal orders as of 1 Januarf 1968. House of Assembly Debates (Hansard), 4 June 1968, col. 6460. 200/ Amended by Proclamation No. 413, Government Gazette Extraordinary, No. 6594, 14 December 1960, Reg. Gaz. No. 71~ , 201/ Added by Proclamation No. 413, supra n. 202/ Added by Proclamation No. 413, supra n. 203/ Hou~e of Assembly Debates (Hansard), 23 May 1961, cols. 6939-40; 29 January 1965, col. 263; 25 April 1967, cols. 4799-4800; 23 April 1968, col. 3892. 204/ Ibid., 29 January 1965, col. 255; 11 June 1965, col. 7873; 25 April 1967, col. 4800; 23 Apri1 1968, col. 3892.

-72- i, :r. detention. 205/ Because so little is known in the Republic of what happens in the homelHnds, these detention provisions may be even more devastating than section 6 of the Terrorism Act. by 241. Regu1at.ion 21 cr.povez-s a Bantu Commissioner or po.l.í.ce officer to arrest without warrant anyone who has committed an offence under the regulations or is suspected on reasonable grounds of having cornmitted such an offence. Ll of 3. Reg~lations fo! the Administration of the District O"y~:mbolal1d., " 11 of Proclamation No. R. 17 oí 1972 242. This Proclamation was promulgated to control near ínsurrection in the Ovambo ;0 area oí Namibia (South West Africa), which South Afrjca has occupied illegally since '" . tl.~a revocation oí i ts South West !.fric[~ mandat.e in 1966 by the General Assembly. 2061 The Proclamation was issued by the State President under unspecified powers vested in him "by law".

243. The regulations are similar in many respects to those found in Proclamation No. 400 of 1960, relating to the Transkei. They are still in effect two years after promulgacion.

244. Regulations 4 and 6 prohibit entrance into and departure fram "prohibited areas" - apparently Ovamboland as a whole - without official permission. Permits y may be subject to conditions, and failure to comply therewith is an offence. ,e 245. Regulation 3 makes all meetings unlawful unless they are authorized by permit in or fall under a list of exceptions similar to the exceptions under Proclamation 400 " of 1960. Subregulations (2) to (4) provide for the dispersal of unlawful meetings. Subregulation (6) empowers a native commissioner to prohibit any person from being present at any meeting. •

246. Regulation 11 corresponds generally to regulation 11 of Proclamation 400. It prohibits statements or acts subverting or interfering with authority; threa~enillg or engaging in boycotts; refusing to obey any lawful order of a chief or hesdman; or treating a chief or headman witb "disrespect, contempt or ridicule".

247. The remaining regulations follow, with slight modifications in numbering) the corresponding regulations in Proclamation 400. They provide~ inter alia: that the Minister of Bantu Administration and Development may prohibit any person from ~ entering, remaining in, or leaving Ovamboland; 20'r/ that no judicial process shall stay any action taken under the regulations and that there shall be no stay pending appeal of a conviction for an offence under the regulations; 208/ that local , magistrates and chiefs and. headmen shall have criminal jurisdiction under the regulations and set maximum. penalties; 209/ and that officials acting under

-.::> 205/ 80uth African Institute for Race Relations:I 1965 Survey of Race Relations, , p. 53. 206/ By resolution 2145 (XXI)e 207/ Regulation 13. 208/ Regula~ion 16. 209/ Regu1ations 12, 18. -'r3-

t . ,-, the regulations are immune from criminal penalty or civil action unless they are shown to have acted in bad faith. 210/

248. Regulations 19 and 20 correspond to 19 and 20 of Proclamation 400. They authorize a native commissioner or South African police officer to arrest anyone he believes to have committed or to intend to commit an offence under the regulations or under any otheE-law or anyone he believes to have information about such an (intended) offence. The person may be detained incommunicado and questioned until the commissioner or officer is satisfied he has answered "fully" and truthfully all quest Lons put to him •••". A detainee has no right to consult with a lawyer.

249. Regu1ation 22 validates a1l officia1 acts done between the time the Goverrment first acted drastically to put down the insurrection 211/ and 4 February, when ~he regulations became effective. .. ,

IIIv SUMMARY

250. The 1aws and regulations discussed aboye are the primary, but by no means the complete roster of, prnvisions designed or used to repress the legitimate struggle f'or freedom in South Africa. They omit, for example, the entire body oí pass and liinf'lux control" laws, 212/ which operate as repressive devices although they were devised primarily for other purposes. They also omit common law mechanisms, such ag contempt of court charges, which may be employed against government critics both as penaltie~ and as intimidation. 213/

251. Even with all the omissions, the number of 1aws and regulations covered is so great that the description and analysis of even the most repressive has had to be very brief and summary.

252. Tbe laws and regulations discussed aboye have been classified functionally: as blacks haYe devised and used a whole gamut of techniques to attempt to improve their situation and win freedom, laws and regulations have been enacted or issued and implemented to prevent each new technique from succeeding. Related techniques have been grouped together, and the laws and regulations designed to frustrate them have been considered togetber.

253. Such a functional analysis leads to the same conclusion ultimately reached by the Africans fram practica! experience: that they can win their freedom only by for~e. South African laws not only prevent blacks froro participating in the Governroent of their own country, but they are also designed to prevent non-violent l. 'l activities to persuade the ruling white minority to share political and economic power with the black majority. , glO/ Regulation 15. 211/ 25 January 1972.

212/E.g., Bantu (Urban Areas) Consolidation Act, NOe 25 of 1945; Abolition of Passes and Co-ordination of Documents Act, Act No. 67 of 1952. ~13/ See, e.g., S. v. van Niekerk, 1970 (3) S.A. 655 (T). Professor van Niekerk was tried for contempt of court for pub1ishing a scholarly article attacking capital punil:lhment; "Hanged by the neck until you are dead", in the legal publication, !h~ \". (. South African Law ~ournal. The trial ended in acquittal, but Professor van Niekerk r ¡' \ has been subject to constant harassment, includ1ng other criminal charges.

-74- ._JMlll.·"'S!-,._.__-~------"""""--_"---_-"'- _

PART THREE

Report on assistanc~_pI'ovided by Governments and non-governmenta1 organizations to the oppressed peop1e of South Africa and their 1iberation movements*

CONTENT8 Paragraphs Page

LETTER OF TRAN8MITTAL • • • • • • • • •••• • •• • • . .. . •• • • • • 76

l. INTRODUCTION •• • • ••• • • • • • • • ••• ••• • • • 1 - 10 77

II. DECISIONS OF THE UNITED NATIONS. •• • • • •• • ••••• 11 - 20 79

III. NEEDS ..•••• ••• . . .. . ••• •• •• • • •• · . 21 - 26 81

IV. AS8ISTANCE •• ••• •• • •• • • • . . · . ••• • • • • 27 - 49 83

A. Humanitarian assistance •• • •••• •• • • • ... . . 31 - 37 83

B. Educationa1 assistance. •• • ••• • •• •••• • • 38 - 43 84 J~4 C. P01itica1 and other assistance. • • • • • ••• • •• - 47 85

•• el • D. Observations •.•. • C\ •• • • •• • • • •• 4.8 - 49 85

v. CONCLUSIONS AND RECOMMENDATIONS •• • • • •• • •• •• • • • 50 - 52 86

1- '1.

,

* Previously issued under the symb01 A/9803.

-75-

~"-."--''''''''._,' .-"-'", .... '-~-""'-"'" _~. ~. ~ _.:l.~._~,._._.~_ _.~ '.~" -»~." ;.~, _~. _.~." _~ "~ _.~,.,, _~._.,_, ~ ~,_ .,' '.' __ . '-._••_. __ .. " .• o,' ..." ._'. ,_._ .' -. ..·e.._..._...... __•...... __ ••...... ,.- « •• ' LETTER OF TRAN8MITTAL

11 October 1974

Sir,

I have the honour to send you herewith a report entitled "Assistance provided by Governments and non-governmental organizations to the oppressed people of 80uth Africa and their liberation movements", adopted unanimously by the Special Committee on Apartheid en 11 October 1974.

This report is submitted to the Genera] Assemb1y in accerdance with the ," v request contained 'in reso1ution 3151 D (XXVIII) adopted by the General Assembly on 14 December 1973.

Accept, Sir, the assurances of my highest consideration.

(Si~ned) Edwin Ogebe OGBU Chairman of the Specia1 Committee on Apartheid

I~ ( ¡' , (,

~' 1:

His Excellency Mr. Kurt Waldheim Secretary-General of the United Nations New York

, j' r, -76- l. INTRODUCTION

4 1. Si.nce 1963 s the General Asseníbly, the Security Council and other organs of the Uní.ted Nations nave z-epeaned'Ly appealed for international assistance to the oppressed people oí South Africe.. and their liberation movements. ed 2. Initially, the United Natiol1s was concerned with (a) huma:J.itarian assistance 1 to numerous persens persecuted under repressive and discriminatory laws, with their families and with refugees from South Africa; and (b) assistance for the education and training abroad of South Africans, including refugees from South Africa. The United Nations Trust Fund f'or South Africa and the United Nations Educational and on Training Programme for South Africans, 1/ both financed by vo1untary contributions, ver-e established in 1965 to pr-oví.de such assistance. Appeals were a1so made ror contributiuns te vo1unta:t"Y agencies engaged in assistance to victims of apartheid.

3. Since 1966~ the General Assembly has, in additior;t, called for other types of assistance to the oppressed people of South Africa and their nationa1 liberation movements - particularly material assistance in their legitimate struggle against apartheid. No United Nations fund was, however, set up for this purpose. The dd General Assembly and the Special Cornmittee on Apartheid have encouraged contributions directly to the movements or through the Ass~stance Fund for the Struggle against Co10nialism and Apartheid, set up by the Organization of African Unity (OAU) in 1971.

4. Many Governments and non-governmental organizations have provided assistance to the oppressed people of South Africa and their natdonaf liberation movements. However, the avai1able information on the amount and nature of assistance is far fram complete. •

5. Much oí' the assistance provided ta the liberation movements - particu1arly by OAD and a number of States and organizations - Ls kept confidential for reasons which can be appreciated. Secondly, because .f the persecution by the South African régime of opponents of apartheid, and even oí' those who provide humanitarian assistance to victims of apartheid, much of the assistance which is sent inside South Africa has had to be kept confidential. Third1y, while information on contiributions to the United Naticns funds is readi1y available, a greater part of ., the assistance is rendered through a multiplicity of other governmental and non-governmental funds and programmes on which ful1 information is not availab1e.

6. While the appeals of -Che United Nations have been oí great importance in recognizing the international duty to assist the oppressed people of South Africa and their national 1iberation movements, and in encouraging a greater flow of assistance, it may be noted that many Governments and non-governmental organizations had undertalten such assistance even prior to the adoption of relevant General Assembly resolutions. The United Nations has encouraged assistm1ce through other

1/ This programme was conso1idated in 1967 into the United Nations Educational and Training Programme for Southern Africa.

-77- funds and programmes, while e-vtab.l í shíng United Nations funds, where appropriate, to supplement such assistance.

7. It may be recalled that at the International Conference of Experts for the Support of Victims of Colonialism and Apartheid in Southern Africa, held in Os10 in April 1973, the question of assistance to the victims of colonialism and apartheid in southern Africa, and to their liberation movements, was discussed. The Secretariat presented to the Conference a paper summarizing all information then available to it on the funds and programmes for such assistance.

¡ .,{x 8. In order to obtain more up-to-date informatiól1, with special reference to • • South Africa, the Chairman of the Special Committee addressed a letter on 3 July 1974 to the permanent representatives of Mamber States, through the Secretary-General, requesting information on assistance provided by their Governments to the oppressed people of South Africa and their liberation movements. On the same day, he addressed a letter to a number of non-governmental organizations requesting similar information. Letters were also addressed to the two liberation movements recognized by OAU for relevant information and comments.

9. Replies have so far been received from the f'ollowing Member States: 2/ Czechoslovakia, Denmark, France, Ger~anDemocratic Republic, Germany (Federal Republic of), Guyana, Iran, Japan, Laos, Netherlands, New Zealand, Norway,

Pak í at.sn , Philippines, Sweden, Ukrainian Soviet Socialist Republic, United Kingdom of Great Britain and Northern Ireland and United States of America. Replies have also been received from the following non-governmental organizations: All Africa Conference of Churches, Nairobi; Anti-Apartheid Movement, Dublin; Gruppe für ¡: . Internationale Zusammenarbeit, Federal Republic of Germany; International Defence ¡ and Aid ]und, London; International University Exchange Fund, Geneva; National ! l· Anti-A,parthei

10. In the present report, the S··:ecial Cornmittee has atrbenpbed to review briefly the relevant decisions of the United Nations; to define the various needp' and, in the absence of further information, to give a very brief indication of the assistance now being provided. It has also included some conclusions and recommendations for the consideration of the General Assembly.

,

¡¡ •

2/ Substantive parts of the replies frem Governments may be found in documents A!AC.115/L.391/Corr.l and 2 and Add.l and 2.

-78- ~e ,

11. DECISIONS OF THE UNITED NATIONS o 11. The General Assemb1y, acting on the recommendffcion of the Special Committee, adoptad, as early as 16 December 1963, resolution 1978 B (XVIII), taking note·of the hardship faced by the families of persons persecuted by the South African régime for their opposition to apartheid and declaring that humanitarian assistance . .. to them was "consonant with the purposes and principIes or the United Nations". 12. In resolution 2054 B (XX), adopted on 15 December 1965 on the recommendation of the Specia1 Committee, the General Assembly requested the Secretary-General to uts , establish a United Nations Trust Fund for South Africa, made up of voluntary contributions from States~ organizations and individuals, to be used for grants to he voluntary organizations, Governments of host countries of refugees from South Africa and other appropri8~e bodies, for assistance to victims of apartheid.

13. In a number of subsequent resolutions, the Assembly has appealed for humanitarian assistance through contributions to the 'United Nations Trust Fund for South Africa and to voluntary organizations engaged in providing a~sistance to the 10m víctims of apartheid. re 14. As for education and training, the Secur:i.ty Counci1 decided, in resolution 191 (1964), on the recommendation of a group of experts, to request the Secretary­ General to estab1ish an educational and training programme for the purpose of arranging for education and training abroad for South Africans. The programme was estab1ished in 1965 and subsequently, in 1967, consolidated into the United Nations .ing Educational and Training Prograrnme for Southern Africa. The General Assembly has repeatedly appealed for generous contribution~ to this Programme, and provided for co-operation by it with other international programmes for the same purpose• .y in 15. Since 1966, the General Assembly has, on several occasions, appealed for assistance beyond humanitarian and educational assistance. In resolutions 2202 A (XXI) of 16 December 1966, 2307 (XXII) of 13 December 1967 and 2396 (XXIII) of 2 December 1968, the General Assembly appealed to all States and organizations to provide material assistance to the oppressed people of South Africa and their liberation movements in their legitimate struggle. , 16. In resolution 2506 B (XXIV) of 21 November 1969, the General Assembly specifically invited all States and organizations to make special contributions on the International Day for the E1imination of Racial Discrimination on 21 March 1970 " "in support of the strugg1e against apartheid". It requested the Special Committee to take steps to promote assistance to the national movement of the oppressed people ot South Africa, in consultation with the Secretary-General of the United Nations and OAU.

17. At its twenty-fifth session, the General Assembly adopted a special resolution­ resolution 2671 B (XXV) of 8 December 1970 - on moral, politica! and material assistance. It requested the Secretary-General, in co-operation with OAU, to take all appropriate steps to ~romote assistance in the economic, social and humanitarian , fields by Governments, organizations and individuals to the oppressed people of

-79- South Africa in their legitimate strugg1e against apartheid. Soon after the adontion of this reso1ution, in January 1971, OAU established the Assistance Fund fe ~ "'che Strugg1e against Col.orrí a.ldsm and Apartheid in order to faci1itate contributions by donors who wished to contribute only for non-mi1itary purposes and did not have direct contacts with the liberation movement.s. Subsequently, in resolution 2775 F (XXVI) of 29 November 1971, the General Assemb1y appealed to 1, Governments, the specialized agencies, national and international organizations and ",' individua1s to provide every assistance, directly 01" through the OAU Assistance Fund, to the national 1iberation movement of the oppressed peop1e of South Africa in their 1egitimate strugg1e.

18. In reso1ution 29~3 C (XXVII) of 15 November 1972, the General Assembly requested ando authorized the Special Committee to take appropriate steps, in co-operation with OAU, to ensure greater moral and material assistance to the national movement of the oppressed people of Bouth Africa.

19. It reiterated this appeal in resolution 2923 E (XXVII) adopted on i ~ 15 November 1972, in which it also called for a world··wide collection of I contributions for assistance to the victims of ~parthe~~. and support to the movement for freedom of the oppressed people of South Africa.

20. In resolution 3151 G (XXVIII) of 14 December 1973, the General Assemb1y appea1ed to a1l Governments and organizations "co provide generous humanitarian, edu~ationa1, political and other assistance to -Che oppressed people oí 80uth Atrica and their liberation movements in their struggle for i'ree¿OI,lll.

r, 1:,:1 1"

~" f: , ;, ft h i 1 l' l> I j t í 1 l' ,I

-·80- nd III. NEEDS i.n

and 21. The Special Committee has always emphasized that the oppressed people of South Africa and their liberation movements deserved international assistance because they were engaged in a legitimate struggle for freedom which was consistent with the purposes and principIes of the United Nati0ns. • • 22. Their struggle has been particularly difficult, and the people have been subjected to enormous suffering because the South African régime, in violation of its obligations under the United Nations Charter and in definnce of numerous • resolutions of the United Nations, has continued to enforce racial discrimination with ever more ruthless repressive measures. It has utilized its control over the rich resources of the country to build up an enormous military and repressive machine to suppress the legitimate struggle of the people for their.inalienable rights.

23. Moreover, this régime has been encouraged and enabled to continue its defiance of the United Nations and world opinion by the attitudes of some

Governments which have continued to collaborate with it and frustrated effective "'1 . :-4 .í.ca implementation of United Nations resolutions for international action to eliminate apartheid. Certain foreign economic interests have continued to assist the régime :\ in order to profit from the oppression of the great majority of the people. , .¡ :¡ 24. Because of the ruthlessness of the South African régime, and the continuance of co-operation by certain powerful Governments and economic interests with that régime, the oppressed people of South Afric~ and their liberation movements need and deserve assistance from the United Nations and from Governments and organizations which subscribe to the purposes·and principIes of the United Nations. The assistance they need is, above all, political action designed to end all collaboration with the South African régime and to secure full implementation of United Nations resolutions for the total eradication of apartheid. So long as certain Governments and economic interests continue to ignore the United Nations resolutions, however, material assistance to the victims of apartheid and their liberation movements isindispensable. Such assistance is not an act of charity, but an act of solidarity with people engaged in a just struggle, as well as a , contribution to the fulfilment of the purposes of the United Nations. 25. The oppressed people of South Africa and their liberation movements need material assistance of various kindso o • 26. They need humanitarian assistance for the millions of people subjected to ' . r exploitation and privation, for the thousands of persons persecuted for their .\ opposition to apar~heid and for the refugees who have been obliged to leave the ¡ country. They need assistance for education and training because the South African ! régime has deprived the great majority of the people oí equal facilities. In ,¡. \ addition, they need assistance to enable their liberation movements to inform the ¡I world of the situation in the country, the aspirations oí their people and their 1 struggle for their legitimate rights. They need material assistance in support of 1 the struggle itself, especially because of the special conditions in which that .'

-81- struggle is being waged in the face of arbitrary Iaws and reguIations anJ other repressive measures which vie] ate the principIes of the Universal DecIaration of Human Rights. The material needs may, therefore, be divided into three ctitegories:

(a) Humanitarian assistance;

(b) Educational assistance;

(e) Political and other assistance.

,

a ...

" "

-82- es : IV. ASSISTANCE

27. As indieated earlier, assistance is provided to the oppressed people of South Afriea and their national liberation movements not only by United Nations funds but also by a number of gover-nme..ta.L and non-governmental funds.

28. Non-governmental organizations have, in faet, pioneered in reeognizing th¿ 4 • needs of the South Afriean people for international assistance and in providing sueh assistanee. Signifieant assistanee began to flow as early as 1952, when thousands of South Afrieans wer-e imprisoned during the Campaign of Defiance of • Unjust Laws. The International Defence and Aid Fund grew out of the assistance initiated at that time. Non-governmental educational assistance began on a substantia1 scale in the ear1y 1960s when, for instance, the Internationa1 University Exehange Fund was established, mainly with Nordic support. Solidarity eommittees in Afro-Asian and socialist States, and anti-apartheid movements which were formed in many cOQ~tries from 1959, provided various forms of assistance to the liberation movement. The decision of the World Couneil of Churches in 1969 to establish a special fund to assist racially oppressed peoples iu their struggles for justice, and the grants made by it to liberation movements in southern Africa since 1970, have been a significant s"!::ep in non-governmental action.

29. Many African, socialist, Asian and other Governments began to provide assistance to the 1iberation movements, especia11y after the Sharpeville massacre of 1960. The establishment of the African Liberation Fund, by decision of the Summit Conference of Independent Arrican States, heJ.d in Addis Ababa in May 1963, provided a means for eneouraging and channelling contributions for a11 th~ needs of the liberation movements. The Organization of African Unity subsequently set up its Bureau for the Plaeement and Education of Afr~can Refugees and established its AS3istance Fund for the Struggle against Colonialism and Apartheid. It has welcomed contributions from outside Arrica, bearing in mind that thl? strugg1es against colonialism and apartheid are of (;~ncern to all humanity.

30. Assistance is thus provided through the United Nations and its agencies, through OAU, through non-governmental fu~ds and programmes, and directly to t~e liberation movements and other bodies. As indicated earlier, it is not possible to provide full information on all assistance now being rendered. The fol1owing

Q , is a brief accrnlnt of available information on the main forms of assistance.

D .. A. Humanitarian assistance

31. The United Nations set up tLe Trust Fund for South Arrica in 1965 to make grants t0 voluntary agencies and other appropriate bodies for aid in providing: (a) 1eg~1 assistance to persons persecuted under the repressive and discriminatory legislation of the Republic of South Africa; (b) relief to such persons and their dependants; (e) education of such persons and their dependants; (a) relief for refugees from the Republic of South Africa; and (e) assistance to ~ersons and their fgmilies persecuted under repressive and discriminatory legis~.ation in N~ibia and Southern Rhodesia.

-83-

\I 32. To date, the Trust Fund has received contributions totalling over $2,700,000 and has made 48 grants totalling $2 ,62'7 ,1~00.

33. The United Nations High Commissioner for Refugees (UNHCR) assists South African refugees, utilizing for this purpose grants from the Trust l~nd and other resources.

34. Moreover, the General Assemb;¡ and the Committee of Trustees of the Trust ,. Fund have encouraged direct contrlbutions from Governments to voluntary . í": organ~zations. Precise figures on the direct contributions are not available but they are known to have been substantially larger than the cont.rlbutLons made through the Trust Fund.

35. Humanitarian assistance is provided'by a number of non-governmental organizations such as the International Defence and Aid Fund, London; World Council of Churches, Geneva, and individual churches; Amnesty International, ¡ London; Africa Fund of the American Committee on Africa, New York; International University Exchange Fund, Geneva~ Lawyers' Cornmittee for Civil Rights Under tohe Law, Washington, D.C. In addition, a number of solidarity committees assist refugees from South Arrica.

36. Among these, the International Defence and Aid Fund for Southern Africa, with affiliates in many countries) has been the most important source of humanitarian assistance to those persecuted for their opposition to aparth~id. Its activities cover a wider range of assistance than the terms of reference of the Trust Fund. In the past financial year, it has received contributions totalling ~330,000 froro Governments, organizations and the publico

37. The Special Committee has specially commended the work of this Fund and, on i 3 July 1974, addressed an appeal to a11 States to contribute generously to it. iil' I 1',: l' B. Educational assistance > 38. As noted earlier, the United Nations set up a special programme in 1965 for the education and training of South Africans, which was consolidated into the United Nations Educational and Training Prograrnme for Southern Africa in 1967. Several hundred South Africans have been granted scholarships under this Prograrnme for higher education, witL preference for study in African universities and in professional and technical subjects. In 1973/74, the number of South Africans assisted under this Prograrnme was 298 (or about one fourth of the number of all ., those assisted under the Programme).

39. South Africans have also been assisted, under the Education Account of UNHCR, ". by agreement with the Programme, for studies below the higher secondary level.

Several specialized agencies have offered educational ass í st ance , although the number of South Africans benefiting from these offers is appa.rently rather small.

40. In addition~ 80uth Africans have received scholarships under assistance prograrnmes of individual Governments.

41. P~ong the non-goverrunental agencies, the International University Exchange Fund, Geneva, has been the largest scholarship-giving agency. The World University Service, the International Defence and Aid Fund, solidarity cornmittees in many

-84-

...,¡.,.'. " ) socialist States, the African-.American Institute. in the United States of Amer.í ca,

and many national organizations and uuí.ver-s í.t í es have also granted 01:' offered scho1arships. r 42. It may be ~oted that the United Nations Educationa1 and Training Programme for Southern Africa and UNHCR provide assistance on1y for education abraad. Assistance insicle South Africe. is provided by non-governmenta1 agencies.

43. Whi1e precise figures are not avai1able, it wou1d appea.r that the number of scholarships provided by other agencies together is somewhat 1arger than the number of scholarships UNETPSA has been able to offer to South Africans within its resources.

C. Politica.l and other assistance

44. The United Hations has set up no fund for assistance other than humanitarian and education3..1 assistance, and relatively little information is available on political and ot~.e:c e.ssistance.

45. Assistance for these purposes is provided by the OAU funds and bilatera1ly h by several African, Asia~, socia1ist and other States. The Nordic States have recent1y contributed sorne assistance to the 1iberation movements for strict1y defined purpose~. ---

46. Among non-governmental organizations, the solidarity committees in many socia1ist and other States have contributed various forms of assistance. ~ssistance, main1y fer pub1icity and for attendunce at conferences, has been ,rovided by internationa1 organizations such as the Wor1d Peace Council, the Afro-Asian Peop1es' Solidarity Organization, the International Organization of Journa1ists and the Internationa1 University Exchange Fund . • 47. Grants from the Specia1 Fund of the Wor1d Counci1 of Churches have recently been a significant source of assistance to the liberation movements and associated institutions. It has so far granted $32,500 to the Lutuli Memorial Foundation of the African Nationa1 Congress and $17,500 to the Pan Africanist Congress of Azanía.

., D. Observations 48. W1d1e a mu1tiplicity of agencies are involved, in one way or another, in assistance to the oppressed peop1e of South Africa and their 1iberation movements, , ., • the actual assistance provided appears to be far be10w the needs.

49. As discrimination and repression have increased in South .Afríca, causing enormous hardship, the vo1untary agencies have been unab1e to raise sufficient funds te cope with the humanitarian needs. The scho1arship opportunities for South Africans have bee~ :ar be10w the needs. Above 8011, there has been a great inadequacy of contributions for the political and other needs of the liberation movements such as maintenance of their offices abroad, support of political1y active refugees, information, ~ttendance at conferences and support of the struggle

-85- inside South Africa. The resurgence of resistance inside Scuth Africa, by workers, students and others, has greatly increased needs.

V. CONCLUSIONS AND RECOMMENDATIONS

50. As a result of the activities of the United Nations, and of Governments and non-governmental organizations opposed to apartheid, the cause of the oppressed people of South Africa has secured wider understanding and support in the international community. More and more Governments and organizations have recognized the need alld obligation to provide assistance to them and to their . .. liberation movements. While an increasing amount of assistance is being provided through the Uníted Nations, OAU and voluntary agencies, as well as bilaterally by Governments, it is not adequate to meet the needs that have arisen in the tace of the increasing ruthlessness of the South Africen régime and the build-up of its mi:Jitary and r-epr-esaí ve apparatus. :¿n particular, the assistance is largely ¡~ ; ,fe ', limited to humanitarian and educational purposes and does not adequately cover the \ I polítical and other needs of the liberation movement in connexion with their l; legitimate struggle to end the causes of hardship. 1:'\' ; ,\' ¡ 51. The Special Cornmittee, therefore, considersit imperative that an appeal ~' should be launched to all Governments and peoples to provide more generous 1: assistance to, or in consultation with, the liberation movements, to meet the I ' ¡', various needs resulting fr0m the persistence of apartheid and the course of the I struggle against ~artheid. It is hoped that the positive changes in the colonial

i. territories in Africa may enable the donors to provide greater assistance to the I I oppressed people of South Africa and their liberation movements. [:, 52. The Special Committee considers it necessary that it should, In accordance with its mandate, give utmost priority to concrete measures, in co-operation with the South African liberatlon movements and OAU, to encourage greater assistance to the oppressed people of South Africa and their liberation movements. For this purpose it intends to continue its study of this matter and ensure greater publicity for the various needs of the oppressed people of South Africa and their liberation movements. Through its missions, it will encourage Governments, specialized agencies and non-governmental organizations to consider greater assistance, it will advise them of the needs and forms of assistance and promote consultations between them and the liberation movements.

, .

-86- s ,

PART F01JR

Report on actions a~ainst apartheid taken by specialized agencies and other intergov~rnmental organizations*

CONTENTS . .. Paragraphs Page

. LETTER OF TRANSMITTAL . - . .. . •• •• • •• • •• • • •• • . ... .- . 88 , . l. INTRODUCTION •• • •• • • •• • •• •• • • • •• • •• 1 - 5 89 II. REVIEW OF ACTION TAKEN BY THE SPECIALIZED AGENCIES AND OTHER INSTITUTIONS WITHlN THE UNITED NATIONS SYSTEM •• 6 -·44 90 A. Denial of membership, privileges of membership or assistance to South Af~ica ••• •••••••• ~ 6 - 21 90 B. Assistance to the oppressed people of South Africa 22 - 27 94 C. Dissemination of information on apartheid ••••• 28 40 96 D. Co-operation with the Special Committee • • • • • • 41 - 44 98

rrr. ACTION BY OTHER INTERGOVERNMENTAL ORGANIZATIONS • •• • 45 - 46 100

IV. CONCLUSIONS AND RECOMMENDATIONS •• • ••• • ••• •• 47 - 52 101

• ty

1

, .

* Previously issued under the symbol A/9804 and Corr.l.

-87- LETTER OF TRANSMITTAL

11 October 1974

Sir,

I have the honour to send you herewith a r epor-t entitled "Actions against !Eartheid taken by specialized agencies and other intergovernmental organizations", adopted unanimously by the Specia1 Committee on Apartheid on 11 October 1974.

This report is submitted to the General Assembly in accordance with tne request contained in resolution 3151 D (XXVIII) adopted by the General Assembly on 14 December 1973.

Accept, Sir, the assurances of my highest consideration.

(Signed) Edwin Ogebe OGBU Chairman of the Special Committee on Aparthei~

Ris Excellency Mr. Kurt Waldheim Secretary of the United Nations New York

'J ,

-·88- l. IN~RODUCTION

'4 l. The Special Committee has, since its inceptíon in 1963, stressed the importance oí the contribution oí the specialized agencies and other institutions within the 1 United Nations system, regional organizations and other intergovernmental '1 organizations to the international efíorts to eliminate aparth~id. It has considered that these agencies and institutions have a duty, within their mandates and resources, to contribute to those eííorts. It has always been aware oí the signiíicant contributions they could make in this respecte

2. On its recommendations, the General Assembly has addressed a number oí requests to these organizations since 1963. In resolution 3151 E (XXVIII) oí 14 December 1973, the Assembly considered it "essential 'to ensure the participation in the international campaign against apartheid of all specialized ag~ncies aud other organizations in the United Nations system, as well as the maximum co-ordination oí their efforts". It called upon all Governments "to initiate action in the specialized agencies and other intergovernmental organizations, as necessary, to intensify concerted efíorts against ~artheid, and, in particular, to íormulate programmes oí action against apartheid in the light oí the recommendations in the report of the Special Committee on Apartheid".

3. Du~ing the past year, the Special Committee has held consultations with severa1 agencies in order to implement this resolution and to promote concerted action against ~artheid. It intends to continue these consultations in order to assist the agencies to take the most eííective and co-ordinated action in co-operation with the Uni~ed Nations.

4. In the present report, the Special Commit~ee has attempted to recall the requests made by the General Assembly to the specialized agencies and intergoverIlmental organizations for action against apartheid, and to review very briefly the relevant actions taken by them. The report is based mainly en repcrts received from the agencies and organizations in response to General Assembly resolutions on apartheid and additional data obtained by the Special Committee in consultations with them. It is not comprehensive and contains little information on action by intergovernmental organizations outside the United Natioüe system~ Nor does it contain a review oí action taken by the Organization oí African Unity (OAU) 11 , with which the United Nations has closely co-operated in action against apartheid. It indicates matters on which no information is available to the Special Committee, so that steps may be taken to obtain relevant information.

5. The Special Committee hopes that this review will prove useful for the consideration oí íurther measures to ensure maximum contribution by all intergovernm~ntal organizations in the international eíforts for the total eradication of apartheid.

-89- II. REVIEW OF ACTION TAKEN BY THE 8PECIALIZED AGENCIES AND OTHER INSTITUTIONS WITHIN THE UNITED NATIONS SYSTEM

A. Denial of membership, privileges of membership or assistance to South Africa

6. . In resolution 2054 A (XX) of 15 December 1965, the General Assembly invited the specialized agencies:

"(a) To take the necessary steps to deny technical and economic assistance to the Government of South Africa, without, however, interfering with humanitarian assistance to the victims of the policies of apartheid;

U(b) To take active measures, within their fields of competence, to compel the Government of South Africa to abandon its racial policies."

7 . In resolution 2506 B (XXIV) of 21 November 1969, the Assembly urged all specialized agencies and other international organizations "to withhold the benefits of international co-operation from the Government of South Afr:i;,c~. so long as it persists in its policies of apartheid". 1 .~, i, /: 8. In the same resolution, the General Assembly called upon the specialized t. I agencies and other international organizations to refrain from extending facilities to banks and other financial institutions which provide assistance \' to the Government of South Africa and to companies registered in South Africa. 1" 1, 9. In resolution 2923 E (XXVII) of 15 November 1972, the General Assembly requested the specialized agencies and other organizations within the United Nations system "to discontinue all collaboration with the Government of South Africa unt~l it renounces its policies of apartheid in accordance with the relevant resolutions of the General Assembly". It also requested States membf;:rs of international agencies and organizations, particularly the members of the European Economic Community, the General Agreement on Tariffs and Trade and the International Monetary Fund, 1Ito take the necessary steps to deny all assistance and commercial or other facilities to the Government of South Africa so long as it pursues its policies of apartheid and racial discrimination and continues to defy the resolutions of the General AS3embJ.y and the Security Councilo.

10. In resolution 3151 G (XXVIII) of 14 December 1973, the General Assembly requested all specialized agencies and other intergovernmental organizations "to deny membership or privileges of membership to the South African régime and to invite, in consultation with the Organization of African Unity, representatives of the liberation movements of the South African people recognized by that organization to participate in their meetings".

11. Acting specifically with regard to theInternational Bank for Reconstruction and Development, the General Assembly requested the Secretary-General, in resolution 2202 A (XXI) of 16 December 1966, to consult with the Bank to ensure the denial of financial, economic and technical assistance to the South African Government. At the next session, in resolution 2307 (XXII) of 13 December 1967,

--90- i t expressed the hope that "the Bank will stand by i ts assurance that i t will avoid any action that might run counter to the fulfilment of the great purposes of the United Nations".

12. The action taken in response to these provisions is briefly reviewed below under the following headings:

(1) Denial of membership or privileges of membership;

I:;ed (2) Denial of assistance to South Africa and facilities to banks and financial institutions which assist South Africa; and

(3) Participation of liberation movements in meetings. ing • (1) Denial of membership O't' privileges of membership

13. South Africa gave notice of withdrawal from the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1955, 1/ from the .Food and Agriculture Organization of the United Nations (FAO) in-1963, and from the Internationa1 Labour Organisation in 1964, fo1lowing condemnations of apartheid.

14. It remains a member of a number of organizations within the United Nations system, name1y: General AgreemGnt on Tariffs and Trade (GATT), Internationa1 Atomic Energy Agency (IAEA), International Bank for Reconstruction and Development (IBRD), International Civil Aviation Organization (ICAO), International Development Association (IDA), International Finance Corporation (IFC), '.. Internationa1 Monetary Fund (IMF), International Telecornmunication UNION (ITU), Universal Postal Union (UPU), World Health Organization (WHO) and World Meteoro1ogical Organization (WMO). In the case of WHO, however, it may be noted that the World Health Assembly decided on 19 March 1964 to suspend the voting privileges of South Africa in the organization. South Africa does not participate in the World Health Assembly orin meetings of the Regional Committee for Africa and no longer pays its assessment to the WHO regular budgets. 2/ I'S 15. However, South Africa has been excluded from conferences and meetings of e some of these agencies.

(a) The eighteenth session of the Assembly of ICAO, in June-July 1971, s decided that South Africa wou1d not be invited to attend any meetings convened

a , by ICAO, except as provided in articles 48 (b), 53 and 57 (b) of the rCAO Convention.

~o 1/ However, as a Member of the United Nations an,d a participant in the United s of Nations Conference on the Law of the Sea, South Africa takes part in the work of the Intergovernmental Oceanographic Commission (IOC) whose secretariat is provided by UNESCO. Nevertheless, roe has its own membership, its own Assembly and its own Executive Council. .on 2/ On 20 May 1965, the eighteenth World Hea1th Assembly adopted an amendment to article 7 of the Constitution of WHO authorizing the Assembly to suspend or . exc1ude froro WHO any member which "ignores the humanitarian principIes and , objectives laid down in the Constitution and deliberately practises a policy of . racial discrimination". 'lbe amendment has not come into force in the absence of the·required number of ratifications.

~9l- rf. . ( (b) The eighth regular session of the Assembly of the Inter-Governmental ;, Maritime Consultative Organization (IMCO) decided in November 1973 not to allow f',' any participation of representatives of the So~th African Government in ¡• I,'·~.. conferences or meetings of IMCO. JI (c) The Plenipotentiary Conference of ITU resolved in 1973 that the /; Government of the Republic of South Africa shall be excluded from the j,'·'·.'.··'I'.~.·;·.,, , Plenipotentiary Conference and from all other conferences and meetings of ITU. 4/ ;~, ,''tI i ~f i !.\ ~ . (d) The seventeenth Congress of UPU in 1974 decided to exclude the , ') Government of the Republic of South Africa from that Congress and all other Congresses and meetings of UPU. 5/

(e) The International Conference on the Results of the International Hydrological Decade and Future Programmes in Hydrology, held in September 1974 under the joint auspices of UNESCO and WMO, decided to exclude the Republic of South Africa.

16. Reference may also be made here to the resolution adopted by the UNESCO General Conference in 1970, for an investigation of all international '.~ non-governmental organizations enjoying relations with UNESCO, which have branches, sections, affiliates or constituent parts in the Republic of South Africa, with respect to th~ practic2 of racial discrimination or racial segre~~tion in their policies, activities or membership, or their co-operation in any way with the apartheid policy of the South African Government. The General Conference invited the Executive Board of UNESCO tO break off, as from 31 December 1971, all relations with those non-governmental organizations practising racial discrimination or segregation in their policies, activities or membership.

(2) Denial of assistance to South Africa end facilities to banks and financial institutions which assist, South Africa

17. No direct assistance to the South African Government seems to be provided at present by any of the agencies, either in response to resolutions of the General Assembly or because South Africa is not regarded as a developing country. The International Bank for Reconstruction and Development, which gave substantial loans in the past to South Africa, has refrained from granting loans to that country since 1966.

18. However, the question as to whether South Africa derives substantial b~nefits " from membership and participation in agencies, such as GATT and IMF, appears to , require study.

1 ) 3/ South Africa has not become a member of IMCO though, as a Member of the United Nations, it was entitled to the organization. 4/ South Africa had earlier been excluded from the Plenipotentiary Conference in 1965. That Conference had also instructed the Secretary-General not to invite 80uth Africa to regional conferences or meetings until the Administrative Council decided that conditions for constructive co-operation had been restored by South Africa's abandonment of its policy of racial discrimination. 5/ South Africa had earlier been eJ~ aded from the UPU Congresses in 1964 and 1969.- -92- 19. No information is aVRilable as to the implementation by the agencies of the request by the General Assembly, in resolution 2506 B (XXIV), that they refraín from extending facilities to banks and other financial institutions which provide assistance to the Government of 80uth Africa and to companies registered in South Africa.

(3) Participation of liberation movements in meetings

20. A number of agencies have recently decided to allow the participation of representatives of liberation movements recognized by the Organization of African , }> Unity in their conferences and meetings.

(a) The FAO Conference, at its seventeenth seaaí.r ..l in November 1973, welcomed the participation of liberation movements recognized by OAU in FAO meetings, seminars and training centres and other activities undertaken or sponsored by FAO/WFP. It authorized the Dí recbor-..General to invite, through OAU, representatives of liberation movements to attend regional and technical conferences and consultations convened in Africa under article VI-5 of the FAO Constitution, including the African Regional Conference, and to participate ". ,( ches, in the deliberations on items that may be of direct concern to tihem, h r (b) The ICAO Council decided, at its eighty-first session in March 1974, to invite the ICAO Assembly, at its fortheoming session to be heId in Montreal froro ted 24 September to 16 Oetober 1974, to authorize the COQ~eil to extend invitations to tions representatives of liberation movements reeognized by OAU to attend, as observers, ICAO meetings dealing with matters pertaining to their réspective Territories. • J.

J e (e) The eighth regular session of the !MCO Assembly, in November 1973, 1 amended i ts rules of proeedure t.o provide that the Secretary-General, with the approval of the Council, may: invite liberation movements recognized by OAU to send observers to sessions of the Assembly. •

at (d) The Plenipotentíarr Conference of ITU decided in 1973 that the II "liberation ox-ganizations rE;cognized by the United Nations" may attend meetings oí ITU as observers, and instrueted the Administrative Council to take the necessary loans action. (e) The seventeenth session of the UNESCO General Conference decided to assoeiate with the organization's activities, including those of the General rits 'i , Conference, the representatives of the Afriean liberation movements recognized by ) OAU, and requested the Exeeutive Board to decide on the means neeessary to this ende Subsequently, the Executive Board deeided, in May 1973, to invite , ) representatives of these liberation movements to partieipate as observers in sueh deliberations of the Executive Board as ma~r be oí eoneern to them. It also invited the Director-General to associate them, in eonsultation with OAU, with various activities oí the organization, in particular: mee .tie "(i) By holding eonsultations with them on the preparation oí the programme dI to eliminate colonialism, !!p~theid and racialism in all its forros; ;h "(ii) By seeking their eo-operation in establishing the programme provided for by the General Conference at its seventeenth session for the and

-93- ob~ rvance of the Decade for Action to Combat Racism and Racial Dí scrdmí.natzí on;

l1(iii) By seeking their assistance, whenever necessary, in any study or publication concerning the state of education, science, and culture in their respective territories, and when it is of direct concern to them;

"(iv) By inviting persons belonging to these movements to participate in meetings, symposia and seminars."

(f) The seventeenth Congress of UPU decided in May 1974 that the liberation movements recognized by OAU may attend UPU Congresses as observers.

(g) The twenty-seventh World Health Assembly, in May 1974, requested the Director-General of WHO to take the necessary steps to invite the representatives of the national liberation movements recognized by OAU to attend the meetings of WHO in an observer capacity. The Director-General informed the Special Committee that the representatives of these movements would, in the first instance, be invited to the meeting of the WHO Regienal Committee for Africa, scheduled to be held in Brazzaville in September 1974.

21. It may be noted that the above-named decisions of the agencies concern all African liberation movements recognized by OAU. Information available on the actual participation of S012th African liberation movements in the meetings of the agencies indicate that representatives of the African National Congress of South Africa and the Pan-Africanist Congress of Azania have participated in several UNESCO seminars over the last few years. Representatives of the Pan-Africanist Congress of Azania appeared beforé the TJNESCO Executive Board en 9 October 1974 and requested UNESCO assistance for their education programmes and for the protection of the cultural heritage of Africa.

B. Assistance to the oppressed people oí 80uth Africa

22. In resolution 2202 A (XXI) of 16 December 1966, the Assembly requested the specialized agencies to consider appropriate assistance for the~mployment in their secI'etariats and programmes of qualif~ed South Africans who are victims of apartheid.

23. In resoluti( 41 2775 F (X}~VI) of 29 Nr vember 1971, i t appealed to the specialized agencies and international organizations to provide every assistance, directly or through the OAU Assistance Fund for Struggle against Colonialism and Apartheid, to the national liberation movement of the oppressed people of 80uth Africa in their legitimate struggle.

(1) Employment in secretariats andJ?rogrammes_

24. No inf:>rmation is available on the employment of qual.í r'fed ":.:>uth Africans, who are 'ictims of apurtheid, in the secretariats and programmes of the a~encies.

-94- \ (2) Assistance to the national liberation movement of the oppressed people of South Africa

25. No information i.s available of' assistance by the agencies to the national liberation movement of the oppressed people of South Africa, directly or through the OAU Assistance Fund, Some of the agencies nave decided on assistance to liberation movements recognized by OAU but no programmes of assistance for the South African liberation movements have yet been undertaken.

(3) Otller assistance

26. The United Nations High Commissioner for Refugees has rendered assistance to ref'ugeee from South Africa.. ManJT of the other agencies have lent co-operation to UNHCR and to the United Nations Educational and Training Programme for Southern Africa (UNETPSA) in their programmes of assistance to Soutb African refugees. The offices of the United Nations Development Programme in tbe African States, for instance, assist in tbe administration of UNETPSA~ Several of tbe agencies have indicated tbeir readiness to provide scholarships or educational and training facilities to southern Africans: but little information is available on tbe number 0f South Africans who have benefited froro tbese offers.

I 27. As regards assistance by UNHCR for refugees from South Africa, the Special '1 Committee has received the following particulars from the Office of the United Nations High Commissioner for Refugees: I "The number of refugees from the Republic of South Africa who are the "j concern of UNHCn is at present estimated at approximately one thousand. ):¡ They are mainly concentrated in countries of southern and eastern Africa, ,'1 particularly Botswana, Lesotho, Swaziland, Tanzania and Zambia. They quali~! as refugees in terms of the mandate of the Office as defined in the annex to the United Nations General Assembly resolution 428 (V). As such they benefi~ from UNHCR's legal protection and are eligible for the various types of assistance which the Office may be able to provide to refugees.

"In the legal protection field UNHCR endeavours bear mainly on ensuring for the South African refugees the benefit of velevant international conventions, in particular the 1951 Refugee Convention and the Protocol of 1967. The Office endeavours to ensure that all bon~ fide South African refugees without distinction are recognized in the countries in which they choose to seek asylum. This implies for the South African as for any other refugee an assurance that he will not be expelled,to his country of origin, detained for reasons other than common law offences, or suffer discrimina-t,ion D .l in any formo While durable settlement in the country of asylum is t.he objective, if in exceptional cases the presence of a South African refugee is genuinely embarrassing to tbe host Government., the UNHCR will attempt to secur0 his admission to another country and facilitate his transfer. On such an occasion the intervention of UNHCR is often required to ensure the delivery to the refugee of the 1951 Refugee Convention travel document with a return , ! clause, which might be en indispensable prerequisite for resettlement in ·.··,,,< !,·.·{ , I another country. ,·,f, , ~¡ ~I : ; ~t.", ti ;.·,,'lI [J. ¡ -95- •. .I .~,~ i I ,1 j.' I ~'i ~_ J , •1jlJ "In the field of'~material assistance UNHCR provides needy refugees from South Africa with the usual type of aid. On arrival they are given relief or supp1ementary aid in the forro of foad, medicines, clothing, shelter and so forth, so as .¡.,~~ tide them over the difficulties of the initial periodo However, as SOOl zs posafb.Le , solutions on a more long-term basis are attempted with a view to 'enabling the refugee to become self-supportingo Individual refugees and small groups have been helped to settle on lánd or in urban employment. Cases for whom straightforward solutions cannot be implemented either because they are handicapped or for other reasons~ are examined and counselled by social workers who assist with UNHCR financial ,participation where necessary in elabol"ating solutionso

"UNHCR also facilitates the education and training of South African refugees o Needy children and s'tuderrts at the primary and lower secondary level are helped without distinction from refugee students or any ~ther origine Various formulae are resorted to in order to he1pdeserví.~ South African st-identis to obtain higher secondary education and vocationa1 or technical trainingo The co-operation of sorne of the specia1ized agencies of the United Nations system is often sought in this respecto Sorne agencies have made fe110wships avai1ab1e for this category of refugeeso Other agencies assist with the eva1uation of the refugee's ability to fo110w specific studies and the selection of and admission to educationa1 or training facilities. The financing of the fellowships for South African refugees which are not ensured by specialized agencies or sources outside the United Nations system is subject to an understanding between UNETPSA and UNHCR whereby the latter considers app1ications for the financing of studies of these refugees up to the end of 10wer secondary education or equivalent, while UNETPSA is competent for the higher studies.

"The financing of UNHCR assistance to South African refugees is ensured ccth from funds a110cated under the UNHCR Regular Programme activities as we11 as from various trust funds administered by this Office; prominent among the 1ntter is the amount made avai1ab1e on an annual basis by the Uni:ed Nations Trust Pund for South Africa, which in 1972 ~ounted to $70,000 and 1ast year to $80,000; these funds serve main1y to finance supplementary and emergency aid to individual refugees facing temporary difficulties. The other trust funds from which education of South Africans has been financed inc1ude the UNHCR Education Account."

c. Dissemination of informaticn en apartheid 28. In a number of reso1utions since 1965, the General Assemb1y requested the specialized agencies to co-operate with the United Nations, particularly the Office of Public Information and the Unit on Apartheid, in the widest possib1e ¡. 1 dissemination of the information ~n the evi1s of apartheid and the efforts of the United Natións to e1iminate apartheid, in the light of the recommendations of the Special Committee. 6/

6/ General Assemb1y res01utions 2054 A (XX) of 15 December 1965; 2396 (XXIII) of 2 December 1968; 2671 C (XXV) of 8 December 1970; 2775 G (XXVI) of 29 November 1971; ~'l923 D (XXVII) of 15 November 1972; and 3151 E (XXVIII) oí' 14 December 1973.

-96- r~esolution 29 & In 22'r5 B (XXVI) of 29 November 1971, the General Assembly specifically commended the activities of UNESCO in disseminating information on apartheid, with special reference to its efforts on education, science and culture. Taking note of the 'consultations between the Special Committee and UNESCO, it requested UNESCO to prepare an educational kit on southern Africa for possible adaptation by national commissions of that organization and for distribution to institutions of learning. It further requested UNESCO to consider the production of films and audio-visual material on apartheid, with special reference to its adverse effects on education, science and culture.

30. The United Nations Educational, Scientific and Cultural Organization has indicated that the educational kit referred to aboye had finally been completed. I~ is in the form of a teacher's source book on southern Africa, and was scheduled to be published in English in 1974 and in French in 1975. Up to the time of the presentation of this report, the source book had not been published, however. The Special Committee has also requested UNESCO to publish a Spanish s edition of the source book not later than 1975. s 31. In resolution 3151 E (XXVIII) of 14 December 1973, the General Assembly requested UNESCO:

"(a) To expedite the publication and distribution of the educational kit on racial discrimination and apartheid in southern Africa; i "(b) To continue its programme of studies, seminars and conferences on the role of culture in combating colonialism, racism and apartheid and, in particular, to consider convening, in co-operation with the Special Committee, a conference of prominent educators, 1flriters and other intellectuals to discuss their role in the struggle against apartheid. u

32. In resolution 3151 A (XXVIII) of 14 December 197'3, the Assembly requested the Unit on Apartheid and the Office of Pub1ic Information oí' the Secretariat tamske special efforts, in co-operation with the ILO, "to acquaint trade unions all over the world with the situation in South Africa and to pub1icize the activities of the trade union movement towards the eradication of apartheid i.n South Africa".

33. On the other hand, in resolution 3151 C (XXVIII) of 14 December 1973, the General Assemb1y requested the Secretary-General to make appropriate arrangements to enab1e the Unit on Apartheid, in co-operation with the Office of Pub1ic Infonnation, "to publicize information on the activities of the specialized agencies .•• against ~..partheid"•

34. UNESCO and the ILO have made a subst,8:ltial contribution to the disseminat:ion of information on apartheid and, more recent1y, fo110wing consu1tations by the Special Committee, FAO and WHO have undertaken to lend greater co-operation in this respect ..

35. On the suggestion of the Specia1 Committee, UNESCO prepared a specia1 study in 1967 on Apartheid: Its Effects on Education, Science, Culture and Information. A second revised edition was published in 1972. The Courier, published by UNESCO in 12 1anguaBes, devotcd a specia1 issue to apartheid.

-97- 36. As regards the provision in paragraph 2 (b) of General Assembly resolution 3151 E (XXVI~I), U~ESCO has indicated that it intends to continue its programmes of studies, seminars and conferences on the role of culture in combating colonialism~ racism &id apartheid, and that these activities will involve the participation of the African liberation movements recognized by OAU in accordance with the Executive Board decision quoted in paragraph 20 (e) aboye. The Director­ General has also made provision for an expert meeting on social structure, revolutionary change and the creative artist in southern Africa in the draft programme and budget for 1975-1976 which will be submitted to the General Conference at its eighteenth session.

1 37. As regards the I10, the annual special reports of the Director-General on ) 1 apartheid, which have been published in many languages and have attracted wide ,¡ attention, have contributed significant~y to the dissemination of information on i apartheid. At the suggestion of the Special Committee, the I10 issued a pamplet ;¡ ,¡ entitled I10 and Apartheid in many languages. 7/ It published the resolution I f'l of the International Trade Union Conference against Apartheid, held in Geneva ;1 in June 19'73, in pursuance of a propcs.a.l by the Special Committee. The ILO is ~rartheid , also closely co-operating with the Unit on in the dissémination of "\'~: information on apartheid to trade union organizations .

..:i 38. The Food and Agriculture Organization of the United Nations has, through ¡; messages by its Director-General on the International Day for the Elimination of ¡'1 Racial Discrimination and articles in its magazine Ceres, publicized its . -f'~ '\;'1 opposition to apartheid and racial discrimination. The FAO Freedom from I-'.!.'1 Hunger/Action for Development prograrnme (FFH/AD), which works in support of . 1,(r'f non-governmental and governmental partners concerned to s'timul.at.e. critical I 'l." awareness of development issues, places particular emphasis in its current 1,1 J programme on research, education and action regarding liberation movements in 1I "~ I southern Africa.

\ i 39. Following the consultations by the officers of the Special ~ommittee with the Director-General of FAO in May 1974, FAO is considerinr the }reparation of a study and publicizing of the crucial problem of discrimination and oppression as regards land o~mership 2n South Africa, where the white minority has appropriated 87 p0r ~ent of the land.

40. Pursuant to a suggestion by the Special Committee, and followin~ decisions by th~ Executive Board of WHO and the twenty-seventh World Health Assembly, the Director-General of vJHO has undertaken to prepare a report on the health implications of ~partheid for the people of South Africa and on specific measures which might be initiated by that organization. 8/

\ D. Co-operation with the Special Committee

41. In several resolutions, the General Assembly invited the specialized agencies

'. ,i 11 The first edition was published en 21 March 1969 and a rev~sed edition in j ¡ 1971.

i . 8/ T'he World Health As aemb.ly had, as early as 23 May 1963, called on the ·.",'·.,r, "'. ,; 1 Soutll Africen Goverrnrer-f bo renounce the policy of' apar-ched.d in the interests of the fJi ~i phvs í cal , mental and :::c c í a.l well-being uf' the popul.atí.ons ;'-aild pledged to support ~.'.' :~,.'..' '.' 0.11 measures that may be taken to contribute tiowar-ds the solution of che probl.em of anartheid. I h -98- ¡ (

i ..¡ 1 t~eir ~s to give to the Specia1 Committee assistance and co-operation in the fu1fi1ment of its mandate. 9/ ice 42. The Specia1 Committee has from its inception shown interest in the co-operation ;or- of the specialized agencies in action against apartheid. In 1963, the Specia1 Committee received documentation from the 110 which a1so appointed an observer to attend its meetings. Subsequent1y, in January. 1964, the Specia1 Committee addressed 1etters to specia1ized agencies inviting them to appoint representatives to discuss possibi1ities of co-operation with the officers of the Specia1 Committee and to attend its meetings as observers. In response to this invitation, ) FAO, lAEA, the 110, UNESCO and WHO appointed representatives (A/AC.115/1.491). 43. The Specia1 Committee has he1d consu1tations with these and other agencies on a number of occasions.

44. The Specia1 Committee has noted with particular appreciation the co-operation of the I10 in connexion with consu1tations with the Workers' Group and the Emp1oyers' Group of the 110, and the convening of the Internationa1 Conference of Trade Unions against Apartheid in Geneva in June 1973. '

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9/ General Assemb1y reso1utions 1978 A (XVIII) of 16 December 1963; the 2054 A (XX) of 15 Decemb6r 1965; 2202 A (XXI) of 16 December 1966; 2307 (XXII) of t 13 December 1967; and 2396 (XXIII) of 2 December 1968.

-·99- III. ACTION BY OTHER INTERGOVERNMENTAL ORGANIZATIONS

45. As indicated earlier, little information is at present available on the actions by intergovernmental organizations other than the specialized agencies and institutions within the United Nations system. 46. 'South Africa, however, is a member of the following such intergovernmental organizations: 101 '1 '1 )-; ¡ Antarctic Treaty Organization , ,1 , I Commonwealth Forestry Association , \ Custams Co-operation Council Inter-Governmental Comroittee for European Migration International Bureau for Custom Tariffs ',' International Bureau for Protection of Copyrights . , International Bureau for Protection of Industrial Property 1, I !' ? I International Bureau for Protection of Literary and Artistic Works International Bureau for Weights and Measures International Commission for the Conservation of Atlantic Tunas International Commodities Arrangements International Hydrographic Bureau International Institute for Refrigeration International Institute for Vine and Wine International Lead and Zinc Study Group International Ofrice of Epizootlcs International Seed Testing Association International Sugar Council International Telecommunications Satellite Consortium International Territorial Committee on Foot and Mouth Disease

International Whaling Commission I l International Wheat Council International Wool Study Group South Afri.can Regional Commission for Conservation and Utilization of the Soil Union of }l'orest Research Organizatrí ons

10/ South Africa, House of Assembly Debates (Hansard), 7 August 1970, cols .1247-1248. -100-

i ';'11 'J ..i .... L. IV. CONCLUSIONS P.ND RECOMMENDATIONS tions 47. In the light of the foregoing, the Special Committee considers it essential that information should be obtained from all specialized agencies and other 1

intergovernmental organizations on concrete action taken by them in the light of !1 the specific requests contained in the resolutions of the General Assembly. It suggests that a detailed questionnaire should be addressed to all the organizations concerned. 48. The Special Committee further recommends that the General Assembly should again invite the specialized agencies and other intergovernmental organizations to formulate programmes of action against apartheid, within their mandates, in - -;;...;...... ;;.;;~~ consultation with the Special Committee.

49. In this connexion, the Special Committee notes that the ILO has adopted a programme of action against apartheid leading to continuous activity against apartheid. The International Labour Conference, on 8 July 1964, unanimously adopted a Programme tor the Elimination of Apartheid in Labour Matters, and requested the Director-General to submit special annual reports on the application of the Programme. These special reports have been considered by subsequent sessions of I i thl= Conference. ;1 • 50. The United Nations Educational, Scientific and Cultural Organization has adopted a numoer Qf decisions on apartheid and has been engaged in a wide range of activities against apartheid. It is hoped that the studies being undertaken by FAO and WHO, in consultation with the Special Committee, will enable these agencies to for~ulate programmes of action. The other agencies will need to be encouraged and rereinded to formulate their own programmeS' of action.

51. The Special Committee, because of its mandate to promote a concerted international campaign against apartheid, at various levels, can advise the agencies on appropriate action which may be taken by them, each within its mandate, and thereby help to prc~ote co-ordination. To this end, the Special Committee will continue to undertake consultations with the Directors-General of the agencies and, if necessary, make appeals to the member States o: the agencies.

52. The Special Committee considers, moreover, that the Administrative Committee on Co-ordination should be requested periodically to consider the progress made by the specialized agencies in action against apartheid in the light of the resolutions of f l the General Assembly.

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