S v Alexander and Others (1)

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Ogilvie Thompson JA, Wessels JA and Potgieter AJA
• Judgment Date: 25 March 1965
• Citation: 1965 (2) SA 796 (A)
• Hearing Date: 02 March 1965

D Ogilvie Thompson, J.A.:

After a protracted trial before VAN HEERDEN, J., sitting with assessors in the Cape Provincial Division, the 11 appellants were all convicted of contravening sec. 21 (1) of Act 76 of E 1962 in that they had committed sabotage by conspiring to overthrow the Government of the Republic of South Africa by means of violent revolution, guerilla warfare, and the commission of sabotage. First, second, third, fourth and fifth appellants were each sentenced to imprisonment for ten years. The sixth and eleventh appellants were sentenced to seven years' imprisonment each, while the remaining F appellants - i.e. numbers seven, eight, nine and ten - were each sentenced to five years' imprisonment, being the minimum period prescribed by the relevant statutory provisions.

After the conclusion of the trial, application was made to VAN HEERDEN, G J.. for leave to appeal, for the reservation of certain questions of law under sec. 366 of the Criminal Procedure Act 1955 (Act 56 of 1955, hereinafter referred to as the Code), and for the making of certain special entries on the record in terms of sec. 364 of the Code. The learned Judge refused leave to appeal, but reserved two questions of law for the decision of this Court and also made two special entries on the H record. A subsequent petition, pursuant to the provisions of sec. 363 (4) of the Code, by appellants for leave to appeal on the merits was refused by this Court. The present appeal is, therefore, confined to the two points of law reserved and the two special entries on the record mentioned above.

For a proper appreciation of the first special entry on the record, it is necessary to make some preliminary reference to certain relevant facts. Throughout the trial all the accused - numbered as in this appeal - were

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represented by counsel. Mr. Marais and Mr. Strauss appeared for the third, tenth and eleventh appellants, while Mr. Gordon, Q.C. (with him, Mr. Marais and Mr. Strauss), represented the remaining appellants. At a A stage when the State's case was not yet concluded, the trial, which had commenced early in November, 1963, was adjourned for the Christmas Court-vacation. Thereupon the male appellants were detained in custody on Robben Island, which is described in the evidence as a security prison mainly for persons convicted of what are commonly called undermining activities. In order to confer with their clients, defending B counsel were thus obliged to visit Robben Island. This was attended by practical difficulties: inter alia, counsel found the indemnity they were required to sign in respect of the ferry trip from the mainland to the island to be unacceptable. To obviate this, counsel arranged with the prison authorities that the male appellants would be brought to C Roeland Street Gaol, situate in Cape Town on the mainland, for purposes of consultation. At the same time, counsel also directed the male appellants to prepare a written statement of instructions for their use at the resumed hearing of the trial. In compliance with this direction and while the male appellants were still in custody on Robben D Island, such a statement was duly compiled. This document, comprising some 60 foolscap pages, was the joint effort of all the male appellants and is claimed to have been the statement, for the use of their legal advisers, both of the male appellants and of the female appellants as well. I shall hereafter refer to this document as the 60 - page statement. On the morning of 13th January, 1964, the male appellants E - who had the previous day been informed that they would the next morning be conveyed to Roeland Street Gaol where they would confer with their counsel - were lined up in front of the chief warder's office preparatory to proceeding to the ferry for the mainland. On this occasion, and under circumstances more fully referred to below, the 60 F - page statement was taken from the male appellants, who then proceeded to the mainland without it. Upon ascertaining that their clients had been deprived of the 60 - page statement, defending counsel at once protested to a senior member of the Attorney-General's staff in Cape Town, who undertook to communicate with the Robben Island prison G authorities. Although the male appellants returned to Robben Island Prison at about 6 p.m. on Monday 13th January, it was not until about 4.30 p.m. on Tuesday, 14th January, 1964, that the 60 - page statement was restored to them. Upon paging through this statement after it had been thus returned, there was discovered therein a sheet of paper (exh. FF), which admittedly bears the handwriting of detective sergeant van H Wyk, a member of the security police who has an office in Cape Town, and who had been closely associated with the preparation of the State's case against the appellants.

The trial was resumed on 3rd February, 1964, but it was not until the cross-examination - deferred from December and now more specifically directed to the document exh. FF - of van Wyk on 5th February, 1964, that the aforementioned episode on Robben Island was indirectly, albeit pertinently, brought to the notice of the presiding Judge. According to the record, the matter was not alluded to again until several

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of the appellants, in the course of their unsworn statements from the dock, mentioned, as one of the reasons why they had elected not to give evidence on oath, the circumstance that the 60 - page statement had been read by 'State authorities' or, as some of the appellants put it, 'by officers of the State'. The matter was again referred to during A counsel's concluding arguments, which latter are not reproduced verbatim in the record. The learned Judge, however, caused the following note to be contemporaneously recorded, viz.:

'Mr. Nöthling has given an assurance to this Court that neither he nor his junior counsel, Mr. Brunette, appearing with him for the State, either saw or became aware of the contents, as far as they are aware, of B any instructions written by the accused to their counsel while they were kept in the gaol on Robben Island.'

After the appellants had been convicted and sentenced, defence counsel applied for a special entry to be made upon the record, inter alia, in relation to what had occurred on Robben Island in connection with the 60 C - page statement. The special entry thus applied for was couched in the following terms:

'Whether the proceedings were irregular and resulted in a failure of justice by reason of the fact that prior to opening the defence case full and detailed written instructions from accused Nos. 1, 2, 3, 5, 6, 7 and 11 to their legal representatives were confiscated and

(i)

perused by members of the Prisons Department; and

(ii) (a)

perused by Detective Sergeant van Wyk or another member or D members of the Police Force having an intimate connection with the investigation and prosecution of the case against all the accused;

(b)

were accessible to members of the Police Force.'

VAN HEERDEN, J., thereupon heard a considerable body of evidence concerning the circumstances constituting appellants' complaint in E relation to what had occurred at Robben Island. First, third and seventh appellants gave, on oath, their version of how first appellant came to be deprived of the 60 - page statement and in support of the special entry sought. In opposition, the State called one Venter, the Head Warder at the Robben Island Prison; one Killian, the Chief Warder at the Robben Island Prison; and Captain Visser, the Security Officer and Censor of the Robben Island Prison. At all material dates, Venter, F Killian and Visser were officials of the Department of Prisons.

It was common cause between the witnesses testifying before VAN HEERDEN, J., in regard to the episode at Robben Island Prison that, at the time when he was deprived of the 60 - page statement, first appellant also G had in his possession a copy of the record of the trial proceedings as far as it had then progressed and three sealed envelopes. The evidence conflicted as to whether these three envelopes were held by first appellant in his hand or were in the file containing the 60 - page statement, but it was also common cause that they respectively contained (i) an alleged résumé of pamphlet No. 5 (a feature in the trial, and to H which fuller reference will be made later in this judgment); (ii) an account purporting to reflect the statement of a so-called 90 - day detainee; and (iii) a letter, written in the German language, by first appellant. Although the evidence discloses some conflict as to the precise circumstances whereunder he did so, it was also common cause that, after glancing through the 60 - page statement, Killian told first appellant that he could take both it and the record with him to the mainland. The attitude taken up by the first appellant however was that

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he would take all the documents (i.e. the record, the 60 - page statement, and the three envelopes) or none at all. In consequence, all these last-mentioned documents remained with Killian and, upon the latter's reporting the incident to Visser, they were removed by Visser A to his office, where he examined them. Visser freely admitted in his evidence before VAN HEERDEN, J., that he quickly glanced through the 60 - page statement on the Monday and thereafter read it carefully on the Tuesday. Visser further testified that he conceived it to be his duty as censor officer of the prison to read through all these documents. This, B he said, was all the more especially the case since Killian's report to him of the episode culminating in the departure of the male appellants for the mainland without the documents had aroused his suspicions regarding the contents of those documents. Under cross-examination, Visser admitted that he had been...