S v Coetzee and Others

• Jurisdiction: South Africa
• Citation: 1972 (3) SA 526 (O)

S v Coetzee and Others
1972 (3) SA 526 (O)

1972 (3) SA p526

Citation	1972 (3) SA 526 (O)
Court	Orange Free State Provincial Division
Judge	Klopper J and Kumleben AJ
Heard	May 1, 1972; May 2, 1972; May 3, 1972
Judgment	May 18, 1972

Flynote : Sleutelwoorde

Communism — Suppression of Communism Act, 44 of 1950, as amended — 'Unlawful organisation' — When 'branch' or 'section' to be considered an 'unlawful organisation' within definition in sec. (1). B

Headnote : Kopnota

An organisation is to be regarded as a 'section' or 'branch' of an 'unlawful organisation' (main body) as defined in section 1 of the Suppression of Communism Act, 44 of 1950, as amended, if the following requirements are satisfied: firstly, it must purport to be a branch or section of the main body (whether the same name is used or some other name) and, secondly, its objects and activities must substantially C conform to those of the main body.

Case Information

Appeal from convictions in a regional court. Facts not material to this report have been omitted.

R. J. Coertzen, for the appellants.

C. Cillié, for the State. D

Cur adv vult.

Postea (May 18th).

Judgment

E Kumleben, A.J.:

The six appellants were charged in the regional court with the contravention of certain sections of the Suppression of Communism Act, 44 of 1950. The first count alleged that they contravened sec. 3 (1) (a) (i) of the Act in that during the period from April, F 1960, to April, 1970, at Welkom, they became or continued to be office-bearers, officers or members of the 'Pan Africanist Congress (P.A.C.)', also known as 'Poqo'. According to the second count they are alleged to have contravened sec. 3 (1) (a) (iv) by taking part in the activities of the said organisation or by carrying on in its direct or G indirect interest an activity in which it was engaged or could have been engaged at the time it was declared an unlawful organisation. Notwithstanding pleas of 'not guilty', all the appellants at the conclusion of the trial were convicted and sentenced to terms of imprisonment. They have appealed against their convictions and the sentences imposed. In the court below each appellant was referred to not H by name but as 'accused no. 1' or 'accused no. 2' as the case may be. For convenience, I shall retain this nomenclature in this judgment.

Background evidence on the objects and activities of the P.A.C. was given on behalf of the State by Captain Dirker, an officer of the security branch of the South African Police. His evidence was not contested by the defence and consequently need not be discussed in any detail. He explained that on 21st March, 1960, he found a copy of the P.A.C. constitution in the house of one of the P.A.C. leaders, Potlako Leballo. This document was handed in as an exhibit. It sets

1972 (3) SA p527

Kumleben AJ

out, inter alia, the formal requirements for membership and the aims and objects of this organisation. On 8th April, 1960, the P.A.C. was 'banned' by Proclamation in terms of the Act and in 1963 its alter ego ' Poqo' was similarly declared to be an unlawful organisation in terms of A the Act. After the banning of the P.A.C., according to Captain Dirker, its character changed. It became an underground organisation and understandably the formal, and potentially incriminating, requirements of the constitution were put aside. For instance, membership cards were no longer issued. A pamphlet entitled 'A Call to P.A.C. Leaders' was B distributed to members at that time which stressed that small branches or 'cell units' should be formed. These were required to maintain or establish contact with the 'regional executive committee or with the Johannesburg national centre' and to continue to further the objects of the P.A.C. The main object at all times material to this case was to overthrow the Government by force. This was to be achieved by C recruiting Bantu men and by providing the necessary funds for their military training beyond the borders of this country. They were then to return to be the leaders in the envisaged uprising. A further State witness, Marcus Mogatele, confirmed the extent to which the plans were implemented. As a member of the P.A.C. he described a secret meeting in D this country and his subsequent military training elsewhere in Africa.

[The learned Judge then analysed the evidence and proceeded.]

Three State witnesses - Moses Lebere, Edgar Morake and Ernest Molatsi - gave evidence implicating the accused in these activities.

E It must be stressed that the above examination of aspects of the evidence of each of the accused does not establish fatal inherent defects in the evidence of each one of the accused without taking into account the weight of the State case. It does, however, assist the Court to an extent in its ultimate task which - to quote again from R. v. F Hlongwane, 1959 (3) SA 337 (AD) - is to consider the defence 'in the light of the totality of the evidence in the case'.

On this approach the Court finds:

(a)

That the evidence of Moses reads convincingly in its detailed account of the role played by each accused.

(b)

That the evidence of Edgar Morake is similarly satisfactory and corroborates Moses, particularly in regard to the fourth and fifth meetings.

(c)

That the evidence of the accused, considered jointly and severally, reveals unsatisfactory aspects adversely affecting the weight to be attached to it. G

(d)

That the magistrate did not misdirect himself in his approach to the evidence. H

(e)

That, in the result, in regard to the fourth and fifth meetings, the State has proved its case implicating the accused beyond a reasonable doubt.

A fortiori, on a more conservative approach, this Court on appeal is in no way convinced that the magistrate's acceptance of the evidence of the State witnesses relating to these two meetings was wrong (cf. Rex v Dhlumayo and Another, 1948 (2) SA 677 (AD) at p. 706).

1972 (3) SA p528

Kumleben AJ

Consequently the criminal liability of the accused, if any, is to be determined on the basis of such facts.

Dealing firstly with the first count, the prohibition is contained in...