S v Ffrench-Beytagh

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson JA, Botha JA and Trollip JA
• Judgment Date: 14 April 1972
• Citation: 1972 (3) SA 430 (A)
• Court: Appellate Division

G Ogilvie Thompson, C.J.:

After a protracted summary trial in the Transvaal Provincial Division before CILLIÉ, J.P., appellant, an ordained priest of the Church of the Province of South Africa who has since 1965 been the Dean of Johannesburg, was convicted of participation in terroristic activities in contravention of sec. 2 (1) (a) of the Terrorism Act of 1967 (83 of 1967 to which I hereinafter refer as 'the H Act'). Sentenced to five years' imprisonment - the mandatory minimum prescribed by the Act - appellant has now appealed to this Court against his conviction.

Subject to a proviso not relevant to the present case, sec. 2 (1) (a) of the Act provides that

'Any person who -

(a)

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

Ogilvie Thompson CJ

attempts to commit, or conspires with any other person to aid or procure the commission of or to commit, or incites, instigates, commands, aids, advises, encourages or procures any other person to commit, any act; or

(b)

..........

(c)

..........

shall be guilty of the offence of participation in terroristic activities and liable on conviction to the penalties provided for by law for the offence of treason:

A Provided that, except where the death penalty is imposed, the imposition of a sentence of imprisonment for a period of not less than five years shall be compulsory, whether or not any other penalty is also imposed.'

As clearly appears from its wording, what this section prescribes is an 'act' committed, attempted, etc., B

'with intent to endanger the maintenance of law and order in the Republic'.

This intent is a vital element of the offence created by the section and, save in cases where the presently to be mentioned presumption created by sec. 2 (2) of the Act obtains, the State must prove the existence of such an intent in order to obtain a conviction. For, in C contrast with secs. 2 (1) (b) and 2 (1) (c) of the Act - which respectively relate to

'training which could be of use to any person intending to endanger the maintenance of law and order'

and to the possession of explosives and kindred articles - sec. 2 (1) (a) does not in itself alter the normal dominant rule of the criminal D law that the State must prove its case beyond reasonable doubt. It must, however, be borne in mind that, in relation to prosecutions for contraventions of sec. 2 (1) (a), the normal burden of proof is, under certain circumstances, radically altered by the provisions of sec. 2 (2) of the Act. I shall later in this judgment have occasion to refer more fully to sec. 2 (2). At the present juncture it suffices to say that, upon proof that an 'act' falling within sec. 2 (1) (a) was committed and E that such commission 'had or was likely to have had' any of the results mentioned in paras. (a) to (l) of sec. 2 (2), the accused is presumed to have committed such act with intent to endanger the maintenance of law and order in the Republic

'unless it is proved beyond reasonable doubt that he did not intend any of the results'

F listed in those paras. (a) to (l).

The indictment preferred against appellant charged him with the offence of participation in terroristic activities in contravention of sec. 2 (1) of Act 83 of 1967 and read with secs. 1, 2 (2), 4, 5 and 9 of the said Act. The indictment reads as follows:

G 'Whereas:

(a)

During 1961 the African National Congress, South African Communist Party, South African Indian Congress, South African Coloured People's Organisation and persons to the prosecutor unknown, formed a plan to prepare for, and to commit, acts of violence in order to bring about the overthrow of the State;

(b)

This plan was put into effect in 1961 and is still in force at the present date;

(c)

H The plan to commit acts of violence comprised the following stages, to wit, the commission of sabotage on private and public property, the training of fighters and participation in guerilla warfare;

(d)

The plan to train fighters and thereafter take part in armed attacks on Rhodesian and South African Forces was put into effect in 1967;

(e)

The overseas branches of the organisations mentioned printed, published and distributed pamphlets in which non-whites in the Republic were incited to take part in an armed uprising against the State and to give active support to the trained guerrilla fighters;

(f)

The accused accepted the said plan and worked actively towards its implementation;

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Now therefore:

During the period between 26th April, 1965, and 21st January, 1971, within the Republic and elsewhere, the said accused did, wrongfully, unlawfully and with intent to endanger the maintenance of law and order, within the Republic, participate in terroristic activities, to wit, did commit or attempt to commit one or more of the acts set out below, A and/or did conspire with one another, the persons and organisations mentioned in annexure A, to commit or aid or procure the commission of one or more of the said acts:

(1)

During the period between 28th August, 1967, and 21st January, 1971, the accused possessed for distribution and/or personally or through the agency of Ian Thompson or persons to the prosecutor unknown, distributed to Winnie Mandela and others to the prosecutor unknown, pamphlets, detailed below, published by the overseas branches of the organisations mentioned in which B readers were incited to support, prepare for or take part in, a violent uprising against the State, to wit,

(a)

'We bring you a message - The A.N.C. calls you to action' (issued by the African National Congress);

(b)

'Sons and daughters of Africa' (issued by the African National Congress);

(c)

C 'These men are our brothers, our sons' (issued by the African National Congress);

(d)

'The A.N.C. says to Vorster and his gang' (issued by the African National Congress);

(e)

'We are at War' (issued by the African National Congress);

(f)

'Freedom' (issued by the SA Communist Party);

(2)

At a gathering held at 43 St. Davids Road, Houghton, Johannesburg, on 12.1.1968 he incited or encouraged the persons present to support a violent revolution with the object of D effecting social, political and economic changes in the Republic;

(3)

During the period between January, 1968, to January, 1971, in Johannesburg, the accused prepared written notes for purposes of propagating the need for a violent revolution within the Republic in order to overthrow the present State;

(4)

At a conference of the SA Council of Churches held between 5 and 6.2.1969 at Auden House, de Korte Street, Johannesburg, to discuss the subject, entitled 'Generation Gap', the accused E incited or encouraged the persons there present to support a violent revolution in order to effect the overthrow of the State;

(5)

On or about 15th May, 1970, in England, the accused participated in a decision taken by the overseas branches of the said organisations to grant financial aid to the Frelimo guerrilla fighters in order to expedite the overthrow of the Portuguese rule in Mozambique and Angola as a necessary step preparatory to F the overthrow of the South African State;

(6)

During May or June, 1970, in England, he advocated the need for sabotage and a violent revolution in South Africa to bring about social, political and economic changes and reaffirmed his intention to contiue to assist in the achievement of the said aims by administering in the Republic the moneys received from one Canon Collins and/or the Defence and Aid Organisation, London;

(7)

At a meeting of the Black Sash Movement, held at 4A, 2nd Avenue, Parktown North, Johannesburg, on 2.12.1970, he incited or G encouraged the persons present to contravene the laws of the Republic and to support and prepare for a violent revolution with the object of bringing about social, political and economic changes in the Republic;

(8)

During the period between 18.8.1969 and 17.10.1970, in Johannesburg, he incited or encouraged one Louis Henry (Ken) Jordaan to support the commission of acts of violence and to take part in preparations for a violent uprising against the H State, inter alia, by making the following statements on the dates mentioned below:

(a)

On 15.8.1969: that he had large sums of money available to finance activities directed against the safety of the State; that boycotts could be effective as a means of undermining the authority or safety of the State; that one major Swanepoel of the Security Police was a sadist and should be killed;

(b)

On 23.8.1969: that there should be an organisation in existence to control and direct the commission of acts of violence, in the event of it being resorted to; that Winnie Mandela was recruiting youths in furtherance of the aims of the African National Congress;

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(c)

On 20.1.1970: that he could arrange training in methods of sabotage for the said Jordaan in England; that he distributed moneys in South Africa in order to further the achievement by the African National Congress of its aims to overthrow the State by means of a violent revolution;

(d)

A On 3.10.1970 and 15.10.1970: that it was decided by the overseas organisations that their major financial support should be given to the Frelimo guerrilla fighters as the downfall of the Portuguese Government in Mozambique and Angola would facilitate the destruction of the South African State; and that the said Jordaan could receive instructions in England in the use of explosives and electronics in the commission of acts of sabotage;

(9) (a)

During the period between 18th March, 1966, and 21st B January, 1971, in Johannesburg, the accused, in furtherance of the said plan, received from the Defence and Aid Organisation, London...