S v Cooper and Others

• Jurisdiction: South Africa

S v Cooper and Others
1976 (2) SA 875 (T)

1976 (2) SA p875

Citation	1976 (2) SA 875 (T)
Court	Transvaal Provincial Division
Judge	Boshoff J
Heard	August 4, 1975; August 5, 1975; August 6, 1975; August 7, 1975; August 8, 1975; August 9, 1975; August 10, 1975; August 11, 1975; August 12, 1975; August 13, 1975; August 14, 1975; August 15, 1975; August 16, 1975; August 17, 1975; August 18, 1975; August 19, 1975; August 20, 1975; August 21, 1975; August 22, 1975; August 23, 1975; August 24, 1975; August 25, 1975; August 26, 1975; August 27, 1975; August 28, 1975; August 29, 1975; September 1, 1975; September 2, 1975; September 3, 1975; September 4, 1975; September 5, 1975; September 6, 1975; September 7, 1975; September 8, 1975; September 9, 1975; September 10, 1975; September 11, 1975; September 12, 1975; September 13, 1975; September 14, 1975; September 15, 1975; September 16, 1975; September 17, 1975; September 18, 1975; September 19, 1975; September 20, 1975; September 21, 1975; September 22, 1975; September 23, 1975; September 24, 1975; September 25, 1975; September 26, 1975; September 27, 1975; September 28, 1975; September 29, 1975; September 30, 1975; October 1, 1975; October 2, 1975; October 3, 1975; November 17, 1975; November 18, 1975; November 19, 1975; November 20, 1975; November 21, 1975; November 22, 1975; November 23, 1975; November 24, 1975; November 25, 1975; November 26, 1975; December 2, 1975; December 3, 1975; December 4, 1975; December 5, 1975; December 6, 1975; December 7, 1975; December 8, 1975; December 9, 1975; December 10, 1975; December 11, 1975; December 12, 1975; February 2, 1976; February 3, 1976; February 4, 1976; February 5, 1976; February 6, 1976; February 7, 1976; February 8, 1976; February 9, 1976; February 10, 1976; February 11, 1976; February 12, 1976; February 13, 1976; February 14, 1976; February 15, 1976; February 16, 1976; February 17, 1976; February 18, 1976; February 19, 1976; February 20, 1976; February 21, 1976; February 22, 1976; February 23, 1976
Judgment	March 23, 1976

Flynote : Sleutelwoorde

Criminal law — Terrorism Act, 83 of 1967 — 'Law and order' in sec. 2 (1) (a) — Meaning of — Presumption in sec. 2 (2) of Act — When operative — Conspiracy — Conspiratorial agreement — Effect of — Evidence of — Admissibility of against co-conspirators — Criminal procedure — Indictment — Further B particulars — Purpose of — When to be furnished — Act 56 of 1955, sec. 315 (3) — Evidence — Circumstantial evidence — Inferences to be drawn from — Duty of triers of fact — Trial — Duty of triers of fact — Rules of logic — When to be applied.

Headnote : Kopnota

In terms of section 2 (1) (a) of the Terrorism Act, 83 of 1967, to C endanger the maintenance of law and order an act has to be directed either at the constituted authority or the general body of law-abiding members of society in the Republic or portion thereof or both.

The presumption referred to in sub-section (2) of section 2 of Act 83 of 1967 comes into operation if the prosecution proves that the accused committed or conspired to commit, as the case might be, the act alleged D in the charge and the commission of the act, falling within the ambit of sub-section (1) (a), i.e. participation in terroristic activities, had or was likely to have had any of the results specified in sub-section (2). The act alleged in the charge must be a specified act.

When a conspiratorial agreement has been made the offence of conspiracy is complete, it has been committed and the conspirators can be E prosecuted even though no performance has taken place. The agreement continues in operation until it is discharged (terminated) by completion of performance or by abandonment or frustration or whatever it might be. While the agreement is in existence it may be joined by others or some may leave it. The persons who join it are equally guilty.

Allegations of conspiracy and common purpose widen the ambit of initially admissible evidence. When two or more persons are engaged in a F common purpose, the acts and declarations of any one of them in pursuance of that common enterprise are admissible against the other. It is immaterial whether the existence of the common enterprise or the participation of the persons therein be proved first although either element is nugatory without the other.

An accused is not entitled to be informed of every detail of the case against him and the prosecution should not be tied down with further G particulars in a way which would limit its case unfairly at the trial. Where, e.g., particulars are unknown to the prosecutor, it is in terms of section 315 (3) of Act 56 of 1955 sufficient to state that fact. The use of particulars is intended to meet a requirement imposed in fairness and justice to both the accused and the prosecution.

When triers of fact come to deal with circumstantial evidence and inferences to be drawn therefrom, they must be careful to distinguish between inference or speculation. There can be no inference unless there H are objective facts from which to infer the other facts which it is sought to establish.

The rules of logic referred to in R. v. Blom, 1939 AD 188, are to be applied by the triers of fact in respect of proved facts at the end of the trial, in order to see whether the guilt has been proved beyond a reasonable doubt and there is generally speaking no scope for their application by the Judge at the close of the case for the prosecution; at that stage the facts are not yet proved and he only has to determine whether a reasonable man might convict, not should convict. Indeed if there is more than one inference possible from the facts assumed to be uncontradicted at the close of the case for the prosecution, then it is just the sort of evidence that should be referred to the triers of fact for decision.

1976 (2) SA p876

Case Information

Criminal trial. At the commencement of the trial application was made for the quashing of count 1 and for the furnishing of further particulars to counts 2 and 4, and at the close of the State case application was made in terms of sec. 157 (3) of Act 56 of 1955 for the A discharge of the accused. Facts not material to this report have been omitted.

C. Rees, S.C., (with him K. M. Attwell ), for the State.

R. C. P. Allaway, S.C., (with him D. Soggot and A. S. K. Pitman ), for accused Nos. 1, 2, 6 and 7. B

D. Soggot, for accused Nos. 3, 4 and 9.

A. S. K. Pitman, for accused Nos. 5 and 8.

[The Court refused the applications and filed the following reasons for judgment on 23 March 1976].

Judgment

Boshoff, J.:

The nine accused are being charged jointly in an C indictment, which contains 13 counts of participation in terroristic activities in contravention of sec. 2 (1) (a) of the Terrorism Act, 83 of 1967, hereinafter referred to as the Act. Accused Nos. 1, 2, 6 and 7 are represented by Mr. Allaway assisted by Messrs. Soggot and Pitman, accused Nos. 3,4 and 9 by Mr. Soggot and accused Nos. 5 and 8 by Mr. D Pitman. Counts 1 to 4 are against some of the accused in different combinations and counts 5 to 13 against single accused. The accused are being tried jointly in this Court in one indictment and summarily without a preparatory examination having been instituted against them, under and by virtue of the provisions of sub-secs. (a), (c) and (d) of sec. 5 of the Act. Before plea, the procedure prescribed by law in E respect of a criminal trial in a magistrate's court applies mutatis mutandis because of the provisions of sub-sec. (e) of the last-mentioned section. The prosecution furnished further particulars in response to a request for particulars and the defence, before plea, applied to the Court, under the provisions of sec. 167 (1) of the Criminal Procedure F Act, 56 of 1955, to quash count 1 on the ground that it is calculated to prejudice and embarrass the accused concerned in their defence, and under the provisions of sec. 179 (1) of the last-mentioned Act, for an order directing the prosecution to furnish certain particulars requested in respect of counts 2 and 4. The Court refused the applications and indicated that reasons for the refusal would be furnished.

For a proper G appreciation of the charges preferred against the respective accused, it is necessary first of all to refer to the relevant provisions of sec. 2 of the Act on which the charges are based. The material portion of sub-sec. (1) (a) provides that a person is guilty of the offence of participation in terroristic activities, who H

(i)

with intent to endanger the maintenance of law and order in the Republic or any portion thereof,

(ii)

commits any act... or conspires with any other person... to commit... any act.

Basically the onus rests upon the prosecution to establish (i) and (ii) above, before a conviction can follow. This can be done with either direct or circumstantial evidence or both. As far as the intent in above is concerned, the prosecution is by reason of sub-sec. (2) assisted by a presumption if it proves that the accused committed or conspired to commit the act alleged in the charge and that the commission of such act had or was likely to have had

1976 (2) SA p877

Boshoff J

any of the results specified in paras. (a) to (l) in sub-sec. (2), the presumption being that the accused person committed or conspired to commit the act, as the case may be, with intent to endanger the maintenance of law and order, unless it is proved beyond a reasonable doubt that he did not intend any of the specified results. The word A 'likely' in this context connotes probability and refers to the objective quality of the act; the act must be of such a character that in the particular circumstances disclosed in the evidence it would probably have any of the results specified. The act here referred to is the act referred to in sub-sec. (1) (a) and must...