S v Essack and Another

• Jurisdiction: South Africa
• Judge: Rumpff JA, Trollip JA and Muller JA
• Judgment Date: 28 September 1973
• Citation: 1974 (1) SA 1 (A)
• Court: Appellate Division

Muller, J.A.:

This is an appeal against the convictions of the appellants on a charge of contravening sec. 2 (1) (a) of the Terrorism Act, 83 of 1967.

The appellants, both Indians, appeared together with two other A Indians, before SNYMAN, J., at a summary trial in the Transvaal Provincial Division. All four accused were found guilty of participating in terroristic activities as defined in the aforesaid Act. Leave to appeal in terms of sec. 363, sub-secs. (6) and (7) of Act 56 of 1955, was granted to the appellants (to whom I shall herinafter refer as accused B No. 2 and accused No. 3, respectively) but was refused in respect of the other accused, i.e. accused numbers 1 and 4.

The indictment, in a lengthy preamble, contains a number of averments in support of a charge that the accused participated in a conspiracy to promote the causes and policies of certain organisations with the intent C to endanger the maintenance of law and order in the Republic of South Africa. In brief these averments are that the South African Communist Party (also referred to as the S.A.C.P.) and the African National Congress (also referred to as the A.N.C.) - both of which organisations have been declared unlawful organisations under Act 44 of 1950 and Act 34 of 1960, respectively - in promoting their respective causes and D policies in the Republic of South Africa, strive by violent means, or means which envisage violence, for the overthrow of the present Government or system of government in the Republic of South Africa. And it is further averred that, in pursuance of their said policies and aims, certain named subversive publications, in the form of pamphlets and leaflets, were issued for distribution in the Republic of South E Africa, by or on behalf of the said organisations, with the intent to endanger the maintenance of law and order in the Republic. One of the documents mentioned in the indictment is a pamphlet entitled 'No. 1 Inkululeko - Freedom, July, 1971, Organ of the Central Committee of the South African Communist Party' (herein referred to simply as No. 1 F Inkululeko). This is an extremely subversive document, containing highly inflammatory matter exhorting the non-White people of South Africa to fight, and by force of arms to overthrow what is called in the pamphlet 'The White Régime' in the Republic.

The aforementioned averments were admitted on behalf of all the accused.

G A further averment in the preamble to the indictment is the following:

'And whereas one Ahmed Timol, who was an office bearer, member, agent or active supporter of the S.A.C.P. and an agent or active supporter of the A.N.C., did wrongfully, unlawfully, and with intent to endanger the maintenance of law and order in the Republic of South Africa, or any portion thereof, and at the time and place and in the manner set out H in schedule 5 hereto, associate himself with and promote the aforesaid policies of the S.A.C.P. and the A.N.C., or any of those policies, and associate himself with the aforesaid acts done by or on behalf of the S.A.C.P. and the A.N.C., or any of those acts:'

In schedule 5 to the indictment (referred to in the above quoted passage) it is alleged that the said Timol was engaged in various activities in furthering the causes and policies of the S.A.C.P. and the A.N.C. in the Republic. Among such alleged activities was the distribution of subversive literature, including copies of No. 1 Inkululeko.

Muller JA

Inasmuch as the State sought to weave its case against the accused around the activities of Timol, and, inasmuch as the role played by him in the events which led to the present prosecution was, at least at the appeal stage, common cause, it is convenient to set out briefly at A this early stage of the judgment what that role was.

Until 1966, when he left South Africa for England, Timol was a teacher at the Roodepoort Indian School in the Transvaal. He stayed in England for approximately four years, during which period he was in contact with B persons who were either known communists or had communistic leanings.

When he returned to South Africa in 1970, he again took up a teaching post at the Roodepoort Indian School. During the night of 22nd October, 1971, he and accused No. 1, while travelling by car near Coronationville, were stopped by the police at a routine road-block. In C the boot of the car the police discovered a large number of documents which show that Timol was in communication with the Central Committee of the S.A.C.P. in England and the A.N.C. and that he co-operated closely with these organisations in carrying out the schemes which they had devised for furthering communism and revolution in the Republic.

D The documents found in the boot of the car, and other documents and materials discovered by the police upon further investigation, as well as the evidence generally, clearly establish that among Timol's activities was the distribution in South Africa of subversive literature, including No. 1 Inkululeko. One of the methods of distribution was by postal delivery to individual addresses in E the Republic. One of the documents produced at the trial was a mailing list containing 583 names and addresses of persons and institutions in South Africa and overseas.

The reason why Timol was not prosecuted was because of his death on 27th October, 1971, some five days after his arrest, while in the detention of F the police. At a subsequent inquest it was found that he had committed suicide by jumping out of a window in the John Vorster Square building.

As I have already stated, the participation by Timol in a conspiracy with the S.A.C.P. and the A.N.C., as charged in the indictment, and the performance by him of the aforementioned activities in pursuance of G the said conspiracy, are not in dispute.

The charge against the accused, in what is referred to in the indictment as the 'main count', was one of

'participation in terroristic activities in contravention of sec. 2 (1) (a), read with secs. 2 (2), 2 (3), 4 and 5 of Act 83 of 1967, and further read with sec. 263 bis of Act 56 of 1955.'

H And this charge was particularised as follows:

'Main Count.

At the times and places and in the manner mentioned in respect of each accused in schedules 1-4; the accused, either jointly or severally, did wrongfully, unlawfully, and with intent to endanger the maintenance of law and order in the Republic of South Africa, or any portion thereof, conspire with one another (or each of them with one or more of his/her co-accused), and/or the A.N.C. and/or the S.A.C.P., and/or the said Ahmed Timol, and/or the agent of the S.A.C.P. referred to in para. 1 of schedule 5, and/or the person (or persons) responsible for the issue of No. 1 Inkululeko, and/or the leaflets entitled 'The African National Congress says to Vorster and his gang', and 'Sons and daughters of

Muller JA

Africa', respectively, and/or persons unknown to the State, to aid or procure the commission or, or to commit any of the following acts, viz:

(a)

to promote the cause and policies of the S.A.C.P., as set out hereinbefore;

(b)

to promote the cause and policies of the A.N.C., as set out herinbefore.'

A There was also an alternative charge under sec. 2 (1) (a), read with secs. 2 (2), 2 (3), 4 and 5 of Act 83 of 1967, particulars of which were the following:

'In that at the times and places and in the manner set out in respect of each accused in schedules 1-4 hereto, the accused, either jointly or severally, and acting individually, or in concert with the said Ahmed Timol, did wrongfully, unlawfully, and with intent to endanger the maintenance of law and order in the Republic of South Africa, or any portion thereof, commit one or more of the acts set out in respect B of each of them, in schedules 1-4 hereto.'

(It may here be mentioned that alternative charges under the Suppression of Communism Act, 44 of 1950, were also preferred against the accused, but, for reasons mentioned later in this judgment, discussion thereof is unnecessary for the purpose of this appeal).

C Schedule 2 to the indictment refers to accused No. 2, and schedule 3 to accused No. 3. Inasmuch as there is no connection between the activities alleged in these schedules to have been performed by the said accused, respectively, - other than the common purpose in pursuance whereof the said activities are alleged to have been performed - the case against, and the appeal of each of the said accused, can D conveniently be dealt with separately. I proceed, therefore, to deal first with the case against accused No. 2.

Omitting part thereof which refers to activities not relevant to this appeal, schedule 2 to the indictment reads as follows:

'Accused 2, Y.H. Essack, being a member or active supporter of the South E African Communist Party, and/or the African National Congress, performed one or more of the activities set out hereunder:

1.

During approximately July-August, 1971, and at Roodepoort in the district of Roodepoort and Johannesburg, in the district of Johannesburg, accused 2 assisted in the preparation and distribution of copies of No. 1 Inkululeko in that he

(a)

assisted Ahmed Timol in assembling the pages of copies of No. 1 Inkululeko, stapling them together, placing them in envelopes, stamping the envelopes and posting them: or

(b)

F handled, in a manner unknown to the State, the envelopes in which copies of No. 1 Inkululeko were posted.'

The evidence led on behalf of the State was that on two occasions during August, 1971, envelopes containing copies of No. 1 Inkululeko were G seized by the police at the post office in Bloemfontein, and that on each occasion a fingerprint of the accused was found on one or more of these envelopes. The first occasion was on 9th August, 1971 when four such envelopes were siezed. A fingerprint of the accused was found on one envelope...