The Suppression of Communism Act

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Alternative title Notes and Documents - United Nations Centre Against ApartheidNo. 7/72 Author/Creator United Nations Centre against Apartheid; Yengwa, Massabalala B. Publisher Department of Political and Security Council Affairs Date 1972-03-00 Resource type Reports Language English Subject Coverage (spatial) South Africa Coverage (temporal) 1972 Source Northwestern University Libraries Description INTRODUCTION. Criticism of Bill in Parliament and by the Bar. The real purpose of the Act. African Opposition. Use of the Act. Legislative overkill. PROVISIONS OF THE ACT. Punishment without Trial. More Severe Conditions of Banning Orders. "House Arrest Orders." Periodical Reporting to the Police. Imposition of Banning Orders after Completion of Prison Sentences. Banning of the Free Press. Restriction of Persons Administratively Without Trial After Serving Sentence. The banning of exiles. Creation of Harsh and Mandatory Penalties. Presumption of Attendance at Meetings of an Unlawful Organization and Presumptionof Membership. Format extent 16 page(s) (length/size)

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http://www.aluka.org NOTES AND DOCUMENTS*

NOTES AND DOCUMENTS* March 1972 THE SUPPRESSION OF COMJNISM ACT by Massabalala B. Yengwa Northwestern Univers"4 Library IAPR 24 1912 m/ Af ricana [Note: Mr. Massabalala Bonnie ca.aye hoprisdncSouth [Note: practised in South Africa and Swaziland, is now Director of the Lutuli Memorial Foundation in London. A member of the African National Congress since 1945, he was Secretary of the Natal ANC Youth League from 1948 to 1952. In 1952, he became Secretary of the Natal African National Congress, and member of the National Executive of the ANC. He was also Volunteerin-Chief for Natal in the "Defiance Campaign against Unjust Laws" launched by the ANC that year. He was one of the accused in the abortive Treason Trial of 1956-1961. Mr. Yengwa has himself been persecuted under the Suppression of Communism Act for his opposition to apartheid. He has been thrice banned and banished and thrice gaoled for his political activities. The last prison sentence was for two years, from 1963 to 1965, for the violation of section 3 (1) (a) read with section 11 of the Suppression of Cemunism Act (membership of an unlawful organisation). On his release from gaol, he was served with a 24-hour "house arrest" order confining him to a remqte country .district of Mapumulo near Zululand. He fled to Swaziland soon after, and moved to the United Kingdom in 1969. The views expressed in this paper are those of the author.] *Allmaterial in these notes and documents may be freely reprinted. Acknowledgement, together with a copy of the publication containing the reprint, would be appreciated. No 7/72

INTRODUCTION Few laws have had such a dramatic and pervading effect on the political scene in South Africa as the Suppressi^n of Communism Act of 1950. The Act has been used as a dreadful weap^n of suppression, intimidation and terror against the opponents of white supremacy and apartheid. There is scarcely a leader in the struggle of the Black people for liberation who has escaped the merciless and all- embracing provisions of the Act. In the Suppression of Communism Act the Nationalist Government placed itself above the law, to be judges of what should be the permitted political activities of the people of South Africa. It placed those who opposed the policy of white supremacy and apartheid outside the pale of the law. Its opponents could be punished without trial and be deprived many rights, including freedom of movement, freedom of association and even the freedom to earn a living The Nationalist Party won its election in 1948 on its policy of white baaskap (domination) and apartheid.( It claimed, perhaps with justification, that this had been the traditional policy of white South Africa. It then set about to protect and reinforce this policy by arming the Government with powers to crush oppositior. The Nationalist Government excels in its use of euphemisms as legislative titles to its most drastic legislation. It is hardly surprising therefore that when the law was drafted to outlaw opposition against the status quo. it was called the Suppression of Communism Act. When the bill to "suppress communism" was first introduced, it was entitled the "Unlawful Organizations Bill". The Minister of Justice assured the Parliament when piloting the bill that "this Bill was only intended to fight communism". 1/ In fact, perhaps to demonstrate his "good faith", he even agreed to change the title of the bill from the Unlawful Organizations Bill to the Suppression of Communism Bill. He, however, refused to change the provisions of the bill. Criticism of Bill in Parliament and by the Bar The Inister's solemn assurance that he was only fighting communism did not satisfy the critics of the Bill. Mrs. Margaret Ballinger, a Member of Parliament representing African voters, said : "It is a staggering measure ... it is a terrifying measure ... nobody whose views differ from the Government's will have any security whatever. We are not drifting but rushing towards the Police State at a tempo which is absolutely breathtaking." 1/ House of Assembly Debates (Hansard), Junel4, 1950, col. 8923 72-07735

- 2 Speaking for the United Party, hr. Harry Lawrence said: "The bill will require the closest scrutiny and in the interests of the liberty of the individual, the opposition will have to undertake this task in spite of being named communist ..... Certain clauses of the bill are sufficiently wide to enable Mr. Swart (the Minister of Justice) to prevent a citizen from being a member of a football Club, a Debating Society and a Church. It virtually confers on him the power to excommunicate a citizen from society." The Johannesburg Bar Council also issued a statement condemning the bill because, "it seriously and in a far reaching manner tempered with the principle upon which all freedom was founded, namely that no man whould be punished or ortherwise made to suffer by the State except for a distinct breach of the law, proved in the ordinary manner before the Courts of the Land". The real purpose of the Act Despite the strenuous objections to the provisions of the bill, the Government went ahead in getting the legislation passed by Parliament. The task of the Government was made easier by the fact that the majority of the whites had become apprehensive about the increasing militancy of the Blacks. Militancy of the Black people had been demonstrated in various ways during the post-war period. In 1946, the African hine Workers' Union, led by Mr. J.B. Marks, called a strike in support of a demand for higher wages. The strike, which was supported by over 60,000 African miners, was ruthlessly suppressed on the fourth day, when police opened fire on the miners. Nine miners are reported to have died and 1,248 injured. The Native Representative Council, which was in session during the strike, decided to adjourn indefinitely, when its Government-appointed white Chairman refused to allow it to debate the strike. 1,hembers of the Council complained that the Government had been treating it as a "toy telephone". During the same year the Indian community was in a militant mood opposing the Asiatic Land Tenure and Representation Act of 1945, which restricted their rights to own and occupy land. The South African Indian Congress led its members in a Passive Resistance Campaign in 19B,6: thousands of Indians participated and went to jail for occupying land reserved for European occupation. The African National Congress had in 1949 adopted a programme of political action which included the staging of national strikes and other forms of direct action. In projecting itself to the world during the period of the "cold war" as the guardian of Western Christian civilization against communism, the Government hoped to get favourable responses from some influential section of the Western

- 3 - world. In a pamphlet written in 1943, r. Eric Louw, who later became hinister of Foreign Affairs in the Nationalist Government, had preferred, as the main charge against communism, that it "recognizes no distinction of colour or race ... At meetings of the Communist Party, White, Black and Brown persons sit together... The effect of such (communist) inflamatory propaganda was quickly visible in the impertinent and even challenging attitudes of natives towards Europeans." During the debate on the bill in 1950, the Minister of Justice painted a horrifying picture of the dangerous situation facing the country if communism was not suppressed. He warded the House of Assembly: "We are living on a volcano in our beautiful land. In the great world beyond our shore there is war. A cold war. It is war of communism against Christianity itself." The Ivinister went on to tell the House about "a secret organization among the Natives led by Communist leaders who are preparing those Natives belonging to the organization for a great coup on a particular day. The Natives were trained to poison water supplies and to see that there is no power and light at the Central Power station." It was left to Mr. M.D.C. de Wet Nel, who later became Minister of Native Affairs, to give the House a clearer view of what the Nationalist Government regarded as communism. He stated before the House: "Among the non-European population communism is taking another form, a form which is spreading like wild fire not only through South Africa but through the whole of Africa. That form of communism is Nationalism; not Nationalism as we know it, but Bantu or Negro Nationalism. That so-called Bantu Nationalism is the wooden horse in which communism is hiding in order to enter the gates of South Africa ..." Clearly in the Government1s view, communism in South African conditions meant racial equality and any other activities that encouraged racial integration which, it holds ,would lead to Black domination. The Suppression of Communism Act was designed to arrest this tendency and to suppress the ideas that would lead to the achievement of political power by the Africans. African opposition The African people were not taken in by any of the protestations of the Government concerning the Suppression of Communism Act. The National Executive Committee of the African National Congress met at an emergency meeting in Thaba 'Nchu and decided to stage a National Day of Protest and Mourning in the form of a general 2/ House of Assembly Debates (Hansard), June ,1950,col. 8909 strike. Walter Sisulu, Secretary-General of the ANC who is now serving life imprisonment on Robben Island, declared that the protest was an expression of the general dissatisfaction of the African people with the conditions in their country. He cited the Suppression of Communism Act as a further example of the determination of the white people to keep the Africans in permanent subordination and stated that "the African people are equally determined that they are not going to remain in that position for ever". The call for a national strike was supported by the South African Indian Congress. Its president, Dr. Y.M. Iadoo, stated that the bill was not an anticommunist bill as made out in some quarters but was deliberately calculated to impose a fascist dictatorship on the South African people. The National Day of Protest on June 26, 1950, was the first country-wide political strike on which Africans and other non-white groups participated. June 26 was from that year observed as Freedom Day. Other important political campaigns were subsequently launched on that date: the Defiance Campaign of 1952 and the Congress of the People of 1955. Use of the Act The Suppression of Communism Act has been used by the Government of South Africa as a formidable weapon to strike its opponents who are struggling for political and economic change in South Africa. The Act has been amended over eighty times to meet new challenges posed by new forms of political action and to close loopholes exposed by Court decisions against the Government. In the last twenty years of its existence it has become so tightened in its application that all political opposition which challenges white supremacy and apartheid has been banned and those individuals who were brave enough to raise their voices against the system are either silenced, in gaol or forced into exile. Those who are known to be against the system, even if they are doing nothing unlawful, are harassed, and their lives are severely restrictcd and hamstrung. The Act has created a new class of people in South Africa, called by the collective name of "statutory communists", who are beyond the pale of the law. They live in or outside gaol at the pleasure of the iinister of Justice. They may only earn a living and/or follow a profession at the pleasure of the Minister. These people cannot communicate their ideas to fellow South Africans because in terms of the Ministerts orders they may not receive visitors or communicate with each other. Their views cannot be published in the press and they may not attend gatherings. Their only constant and most unwelcome visitors are the ubiquitous Special Branch police, who call on them day and night at the slightest pretext. The Act has been used as a cruel instrument of political intimidation and harassment. One hundred and fifty-six leaders of the Congress movement, mostly members of the African National Congress, were arrested in 1956 and charged with treason and contravention of the Suppression of Communism Act. The trial lasted almost five years and in 1961 the Court held that the African National Congress was not a communist organisation. Though the accused finally won the case, the ordeal of forcing them to face trial for such a long time was no doubt sufficient consolation for the Government.

-5 Ten years after the passing of the Suppression of Communism Act, the Government enacted the Unlawful Organizations Act of 1960, the object of which was to outlaw the African National Congress and the Pan Africanist Congress. The provisions of the Suppression of Communism Act were made applicable to members of the ANC and the PAC. Thus through a cunning use of the provisions of an Act that was designed on the face of it to deal with communists, people who had nothing to do with communism were to face the penalties and disabilities of those who had been listed as communists. Legislative overkill The Suppression of Communism Act is a political measure, designed to cope with political action and to suppress it in various ways. In addition to the many amendments to the already far-reading provisions of this Act, the Government also enacted other legislation to deal with specific political events as they arose. This may appear unnecessary: there has been a tendency for over- legislation or legislative overkill in political and security matters in South Africa. When the African National Congress launched the Defiance Campaign in 1952, over 8,000 people took part in the breaking of various discriminatory aws. The Government then passed the Criminal Law Amendment Act of 1953, which was designed to prevent future organized civil disobediance by laying down heavy penalties for minor violations committed "by way of protest". The Public Safety Act of 1953 authorized the Government to declare a State of Emergency in any area. After the banning of the African National Congress and the Pan Africanist Congress in 1960, and the ruthless suppression of the stay-at-home campaign on May 31, 1961, it became clear to most African people that non-violent and peaceful protests were no longer possible in the face of the Governmentts violence. There emerged a strong body of opinion amongst the African people that there was no avenue open to them other than to meet violence with violence. In 1961-1962, bombings of certain Government installations took place. The Government reacted by enacting the "sabotage" Act (section 21 of the General Law Amendment Act of 1962). The next year, it enacted another General Law Amendment Act., with the 90-day detention clause, to help the South African Police cope with the underground activities of the "Spear of the Nation" and Pooo, militant wings of the ANC and PAC respectively. The 90-day clause was suspended in 1965, but was soon replaced by the 180-day law, (section 215 bis of the Criminal Procedure Amendment Act)which permitted detention without trial of persons believed to be connected with various political offences. As substantial numbers of the freedom fighters trained abroad began to return, the Terrorism Act was passed in 1967. It defined the crime of terrorism so broadly that the Government could prosecute virtually anyone it pleased. It provided for the unlimited detention of arrested persons and denial to the detainees of the right to habeas corpus and any other judicial relief of any sort. The "Boss Law" (the General Law Amendment Act) was enacted in 1969,making it an offence punishable by 7 years'

-6- imprisonment to disclose any "security matter". Further,, the Act authorized the Minister or his nominee or any Cabinet Minister to prohibit the giving of any evidence or the production of any document to any court or statutory body if the evidence or document is, in their opinion, prejudicial to the interests of the State or public security. PROVISIONS OF THE ACT The definition of Communism contained in Section 1 (ii) of the Suppression of Communism Act is a very wide one and this is easily the most important provision of the Act. Communism is defined as "the doctrine of Marxian socialism.., or any related form of that doctrine" and it includes, in particular, any doctrine or scheme (a) which aims at the establishment of a despotic system of government based on the dictatorship of the proletariat under which one political organization only is recognized and all other political organizations are suppressed or eliminated; or (b) which aims at bringing about any political, industrial, social or economic change within the Republic by the promotion of disturbance or disorder, by unlawful acts or omissions or by the threat of such acts or omissions or by means which inclue the promotion of disturbance or disorder, or such acts or omissions or threat; or (c) which aims at bringing about any political, industrial, social, or economic change within the Republic in accordance with the directions or under the guidance of or in co-operation with any foreign government or any foreign or international institution whose purpose or one of whose purposes (professed or otherwise) is to promote the establishment within the Republic of any political, industrial, social or economic system identical with or similar to any system in operation in any country which has adopted a system of government such as is described in paragraph (a); or (d) which aims at the encouragement of feelings of hostility between the European and non-European races of the Republic the consequences of which are calculated to further the achievement of any object referred to in paragraph (a) or (b). As will be seen from the reading of the section, it is only in the introductory paragraph that a statutory crime is created related to "communism" as used in legal definitions attempted elsewhere. The definition in this paragraph has been admitted even by the Courts as imprecise.

-7- The first major court test of the meaning ard scope of this definition came in R. v. Sisulu. 3/ In that case, Dr. Moroka, Nelson Mandela, and 19 leaders of the Defiance Campaign were charged with infringement under section 11 (b) by advocating the achievement of an object of communism as defined in section 1. They had sought to bring about a non-racial society through the refusal to carry passes and similar means of non-violent protest. On appeal, the Court had to face squarely the question whether each paragraph (a) to (a) of section 1 (ii) constituted activity, that is "species" of the "genus" which is defined in the first paragraph. The judge decided : "I think that the attitude of the law-giver in using these words was that, whatever might be the position in regard to the doctrine of Marxian socialism or "any related form", he intended to make it clear that at least, or in any case, the aims set out in paragraphs (a), (b), (c) and (d) were for the purposes of this Act to be regarded as objects of communism and were to be suppressed." The Court took the view that the paragraph covered any unlawful act aimed at producing any political, industrial, social and economic change although there was no violence or threat. The Sisulu judgment is important in that it confirmed the Government's intention fully to entrench the doctrine of racial separation and apartheid and to suppress any attempt to upset the social order of racial superiority. The fortress which Parliament had built to protect apartheid in the form of the Suppression of Communism Act had become indeed impregnable. Fourteen years later the Appellate Division passed on another fundamental question concerning the definition of communism. In S. v. Arenstein, 4/ the defendant appEaied against a conviction under section 11 (a), (i.e. unlawfully performing acts calculated to further the achievement of the objects of communism) on the ground that his actions had not been directed toward the achievement of any of the ultimate objects of communism - that is, the establishment of a Communist state - but merely toward the achievement of certain ancillary and intermediate objectives, many of which were the objectives also of clearly legal organizations. Mr. Arenstein had been found guilty under the section in that he had delivered lectures on Marxist and Communist theory to a group of African National Congress activists, an apparently innocuous and lawful exercise in lecturing to students of political science. The court held that there was no onus on the State to show that the objects which the appellant's activities were calculated to further were numbered among 2/ . v. Sisulu, 1953 (3) S.A. 276, 287 (A.D.) 4/ S.v. Arenstein 1967 (3) S.A. 366 (A.D.) the fundamental objects of harxian socialism. Once the State showed that acts of the accused fell within the statutory description of any prohibited act under (a), (b), (c), or (d), all that was left was to show that appellant's intention was to further the ultimate achievement of communism - and this had been established by his own testimony. Section 1 (1) (iii) creates a statutory definition of "communist", which has no necessary relationship to communism as it is understood outside South Africa. A "Communist" is anyone who at any time admitted that he was a Communist or anyone who is deemed by the State President to be a Communist because at some time and at some place he "advocated communism" or was a member or "active supporter" of any organization which propagated the principles of communism or engaged in activities furthering the achievement of any of the "objects of communism". The definition is so broad that there is no doubt that the State President may "deem" anyone a Communist; and there is probably no one who has not advocated some of the "objects of communism" (including, for example, peaceful political or social change achieved by lawful means), as interpreted in the Sisulu and Arenstein cases. As an Opposition member of the House said: "Every politician must have at some time or other advocated the objects of Communism ... Republicanism is one. Education is another". Punishment Without Trial Subsection 10 (1) (a) empowers the hinister of Justice to apply various kinds of restrictions to any person who, he is "satisfied", "advocates" or is likely to advocate "communism" or who engages in activities which (may) further the achievement of any of the objects of communism. A ban on individuals took the form of restricting them from attending "any gathering with a common purpose." The phrase "common purpose" was judicially interpreted as meaning "the purpose to achieve a common object by concerted action". The Appeal Court also held in 1953 that banning notices issued until then were invalid because the audi alteram partem rule* had not been complied with. This ruling that the banned person was entitled to a prior hearing was invalidated by subsequent statute, with the result that banning orders are now issued, without prior notice, by two policemen acting on the instructions of the Iiinister. The Minister is not obliged to give any reason for the restrictions but may do so if requested. Prior to the passing of the General Law Amendment Act in 1962, no lists of banned persons were published. But the 1962 law made it an offence to publish anything said or written at anytime by any person banned from attending gatherings. * A judicial principle which decrees that no man should be condemned without a prior hearing.

-9- After it had been pointed out that the public had no means of knowing who the prohibited persons were, the iVnister issued a list of 102 persons to whom the ban applied. Four of the 102 were banned under the Riotous Assemblies Act and the other 98 under the Suppression of Communism Act. Thereafter lists were published at frequent intervals, adding names of more South Africans. A revised list dated April 28, 1967, showed that there were 664 people subject to banning orders. By June 30, 1968, the number had grown to 741 including 26 people whose bans had expired and were renewed. Most of the people banned were active members of the ANC and its allied organisations, such as the South African Indian Congress. The banning orders were usually operative for a period of five years and were sometimes accompanied by orders confining the banned persons to specified magisterial districts. Chief A.J. Lutuli, PresidentGeneral of the ANC and Nobel Peace Prize winner for 1960, was banned successively fox five-year periods and was ordered confined to a remote district where he remained until he was killed in a train accident in 1967. More Severe Conditions of Banning Orders In 1962, amendments to the Suppression of Communism Act empowered the Minister to ban persons from performing any action, being in or leaving any place (thereafter defined as including a house of portion of a house), communicating with any person, or attending any kind of a gathering whether with a common purpose or not. "House Arrest Orders" Paragraph 10 (1) (a) specifically empowers the Minister to prohibit a person from being in a designated place or from being outside a specified area or place. In its application this section has involved very cruel restrictions on the lives of banned persons. Some banning orders restrict the person to his house for 24 hours, some for 12 hours. Ivkrs. Helen Joseph, the Johannesburg social worker, was the first person to be placed under house arrest and it is believed that more than 40 persons are so affected at present. Banned persons are usually prohibited from communicating with all or certain persons or receiving any visitor (other than an advocate or attorney, not himself banned or listed, who administers the banned person's affairs). This section also empowers the lvnister generally to prohibit a person from "performing any act specified"; the prohibitions under section 5 (membership in specified organizations) Section 5 bis (nomination to public office), Section 5 ter (participation in activities of organizations listed in the Gazette) and section 9 (attendance at meetings) and a requirement under section 10 quat (reporting periodically at the police station) appear to be covered by this section. Banning orders normally include numerous and detailed restrictions, which are issued under different sections of the Act and are served simultaneously on an individual. They usually run to seven or eight pages or more.

- 10 - Periodical Reporting to the Police The condition which causes great concern to all banned persons is the standard one that requires any listed or banned person to report to a police station at stated intervals (usually either weekly or daily). Its purpose is generally to humiliate or intimidate rather than protect State security, since most such persons are under more or less constant police surveillance. However, it can cause terrible hardships to Africans in the reserves who may, although very poor, be required to report to a police station ten or more miles away. Breaches of restrictions under this section appear to have been quite numerous, perhaps because the requirement so frequently forces an interruption in the otherwise customary routine of a normal day. In most of the reported cases, the accused has pleaded that he or she had forgotten due to the pressure of work or other similar circumstances. This appears to be borne out by the fact that in most cases the accused did report one to three hours late. The Courts have been severe in holding such explanations as inadequate, requiring banned persons to show a high degree of care in complying with the terms of their banning orders. However, they have frequently punished the offenders lightly; suspending a good part of the imprisonment mandated by subsection 11 (a) quat, which makes violation of an order under section 10 quat punishable by one to 10 years in prison. The Minister of Justice reported in February 1966, that 21 persons had been sentenced to prison for contraventions of Subsection 11 (a) quat; of whom 20 had received partially suspended sentences. Imposition of Banning Orders after Completion of Prison Sentences Banning orders are used to punish administratively, persons accused of political offences. In cases where the accused have been acquitted under the Suppression of Communism Act or Unlawful Organisations Act, the people are often banned as they leave court. In 1970, Mrs. Winnie Mandela and 19 other accused, who had been detained for 22 months, were all served with banning orders after being acquitted of the charge of the second time. Similarly, most political prisoners, after serving their sentences without remission, are served with banning orders as they leave prison and deported to remote country areas. This is clearly a second sentence passed on the political opponent through administrative means. The banning orders have many disturbing features which make them particularly harsh undemocratic and vindictive in the extreme. In the first place they are imposed by the Minister of Justice as a result of "information" he has received from the Special Branch of the Police. The banned person is not tried before a court of law and there is no right to judicial review even after the banning orders have been served. The only right which a banned person is entitled to exercise is to ask for information from the Minister about his reasons for

- 11- banning him. Where the reasons are asked for the Ninister usually repeats the words in the section of the Act and concludes by stating that he may not divulge the other information because this might be detrimental to public policy. It must also be remembered that some of the restrictions, like those of house arrest, restrictions againt receiving visitors and communicating with other banned persons may be harsher than conditions in gaol, for there one has the society (in most cases) of fellow prisoners; whilst one does not earn a living, he is not a burden to his family, and he is fed, clothed; and housed by the State. Secondly, the banning orders are used to punish political opponents of the Nationalist Party; persons who need not be communists or threats to the security of the State. The banning orders were first used against non-white trade unions and political organizations to break them up by depriving them of their leadership. Iiore recently, action has been taken against members of the Liberal Party and the Progressive Party, as well as individual churchmen. The Government claims that it has to restrict not only communists but also people who may possibly further the objects of communism and subversive activities of that nature. Thirdly, the banning orders do not take into account the economic circumstances of the persons on whom the orders are imposed. Africans are often restricted to townships where there are no opportunities for employment; factory workers are banned from entering factories; journalists are banned from having anything to do with printing and publishing; lawyers are removed from the roll of lawyers; teachers are barred' from entering educational institutions; and trade unionists are ordered to resign as officers of organizations. . There is a provision that the hinister may provide relief, in cases of hardship, from public funds. This is rarely, if ever, done. Most banned people get assistance from friends and welfare agencies. It is significant that the South African Defence and Aid Fund, which provided relief to families of political prisoners and banned persons, was banned under the Suppression of Communism Act in 1966. Banning of the Free Press Section 6 abrogates the freedom of the press by administrative fiat. It empowers the State President, without prior notice to the publication concerned, to prohibit, by proclamation in the Gazette, the printing or dissemination of any publication which he is satisfied, professes to be a communist publication, conveys views or information calculated to further the achievement of any of the objects of communism, is published or disseminated by or propagates the views of an unlawful organization, or replaces any other publication banned under this section.

- 12 - Section 6 bis was subsequently enacted : it provides that every newspaper must deposit a sum not exceeding 20,000 rand ($28,O00) to be entitled to the certificate of registration required by the Newspaper and Imprint Act, unless the Minister of Justice certifies that he has no reason to believe that the paper will ever be served with a prohibition under Section 6. No interest is payable on such deposits except at the end of five year periods during which no prohibition has been served. If a prohibition is served, the deposit and interest earned thereon shall be forfeited to the State. This provision is clearly designed to discourage overt opposition to apartheid by small newspapers. New Age was then forced to cease publication, without a successor : virtually the whole staff was served with banning orders prohibiting them from being within "any place which constitutes the premises on which any publication as degined in the Suppression of Communism Act, 1950, is prepared, compiled, printed or published." Restriction of Persons Administratively Without Trial After Serving Sentence Subsection 10 (1) (a) bis is the st-called Sobukwe clause, known by the name of the only person to whom it has been applied, Mr. R.M. Sobukwe, President of the Pan Africanist Congress. The clause provides that any person convicted of any of certain political offences may, on the completion of his sentence, continue to be detained in prison at the pleasure of the Minister, if the Minister believes that he is likely to advocate "any of the objects of communism". The clause was made effective for only one year, but renewed annually for five years. Mr. Sobukwe was released in 1969 and was immediately served with banning orders prohibiting him from being outside Kimberley. The Minister of Interior "granted" him an application for an exit permit, but the Minister of Justice refused his application to relax the restriction confining him to the Kimberley magisterial district. Thus, by some cruel administrative joke, he has been effectively prevented from travelling to an international airport to board a plane. In December 1971, the appeal court in Bloemfontein dismissed the appeal of Mr. Sobukwe against a decision which prevented him from leaving the country because of the terms of the banning order The banning of exiles Section 11 (g) bis is aimed primarily at expatriate South Africans most of whom were not banned when they left the Republic. It has been claimed that the primary purpose was to prevent South Africans from reading the works of the most distinguished of their country's non-white English language writers.

- 13 - Creation of Harsh and handatory Penalties Section 11 defines offences under the Act and establishes the penalties thereof. The table below indicates the offence, the Section and the penalty. Section 11 subsection (a) (b) (b) bis (b) ter (c) (d) (d) his (d) ter (d) quat Nature of offence performing act calculated to further any object of communism advocating communism advocating communism by foreign or international intervention undergoing guerrilla training contravention of section 3 (1) (a) - participating in unlawful organisation contravention of section 6printing or disseminating prohibited publication failing to notify police of change of address listed or banned person failing to give police correct name and address contravention of section 10 quat (1) - failing to report to police (e) allowing premi for offences u (b)ter, (c), ( ses to be used nder (a), (b), 1), or (g) .. / o. Penalty 1-10 years 1-10 years as for treason as for treason 1-10 years 1-10 years 1-10 years 1-10 years 1-10 years not exceeding 3 years

- 14 - Section 11 subsection (f) bis (f) ter g) (g) Dis (h) (i) (j) (k) (1) Nature of offence not complying with notice issued under section 5 accepting nomination for public office while ineligible under section 5 bis becoming a member or officer of organisation in contravention of notice under section 5 ter convening or giving notice of gathering in contravention of prohibition under section 9 reproduction of speech or writing of persons banned, listed or forbidden to attend gatherings under section 5, 8 or 9 attending gathering in contravention of prohibition under section 9 failing to comply with ban issued under section 10 (1) refusing to answer question of liquidator or authorised officer under section 7 refusing to comply with requirement of liquidator or authorized officer hindering liquidator or authorized officerremovingaltering or destroying document or property of unlawful organization or held by person on behalf of such organisation occupier of premises entered by authorised-officer refusing to furnish required facilities Penalty not exceeding 3 years not exceeding 3 years not exceeding 3 years not exceeding 3 years not exceeding 3 years not exceeding 3 years not exceeding 3 years R400 (4560) 1 year, or both R400 ($560) 1 year~or both 400 ($560) 1 year or both R400 ($560) 1 year, or both --______

- 15 - Section 11 read with section 10 quat creates offences punishable by 1-10 years. These offences are very broadly defined and all-embracing. For instance, the Courts have gone so far as to suggest obiter dicta, that Section 5 (i) alone creates 9 separate offences; i.e. becoming, or remaining, or performing any act as either a member or an officer or an office bearer of an unlawful organisation. Presumption of Attendance at ieetings of an Unlawful Organization and Presumption of hembership In proving contraventions of Section 3 () (membership), it is customary for the prosecution to make use of the presumption created by subsection 12 (i) of the Act, which puts the burden of proof on the accused to prove that he is not or was not a member or active supporter of an unlawful organization, once the prosecutor established that the accused ever attended any meeting of that organization or advocated any of its purposes or was involved in any way in the distribution of any document or publication of, or on behalf of, the organization. It is customary, in turn, to establish the attendance at a meeting, which makes this presumption operative, by witnesses, normally either paid informers or former members who have been persuaded after a period in detention under the "90-day" or "180-day" clauses to testify against friends and associates. Clause (c) of section 11 which makes contravention of subsection 3 (i) (a) punishable by 1-10 years imprisonment, has sent a flood of cases involving ANC and PAC members or adherents on appeal to higher Courts. Some of the most significant cases have turned directly or indirectly on the difficult legal issue of "splitting" of a cause of action. In particular, it has been argued that Clause (i) (making it illegal to become, remain or act as an officer or office bearer or member of an unlawful organization) and Clause (v) (making it illegal "in any way" to take part in the activities of an unlawful organization or to participate directly or indirectly in any activity in which the organization was or could have engaged) create a single offence. However, the Courts have three times rejected various forms of this argument. hany Africans have been tried for such offences as soliciting membership or using a member's house or distributing pamphlets. In the Eastern Cape, the prosecution was even more vicious than in the other areas and went all out with a political vengeance. For instance, Dr. TI.S. Pather was sentenced for allowing his premises to be used for the meeting of an unlawful organisation. On his release, he was re- arrested on three more counts relating to the same activities.