S v Francis

• Jurisdiction: South Africa
• Judge: Smalberger JA
• Judgment Date: 26 November 1990
• Citation: 1991 (1) SACR 198 (A)
• Hearing Date: 02 November 1990
• Counsel: P A M Magid SC (with him P N Langa) for the appellants B J Schönfeldt for the State
• Court: Appellate Division

G Smalberger JA:

Twelve accused, including the two appellants, were arraigned in the Natal Provincial Division before Thirion J and two assessors on a main count of terrorism in contravention of s 54(1) of the Internal Security Act 74 of 1982 ('the Act'). In addition there were various alternative counts against all but two of the accused. The appellants were respectively accused No 5 and accused No 10 at the trial. For the sake of convenience I shall refer to them individually as H such. At the end of the State case accused Nos 7 and 8 were discharged; accused No 1 was acquitted at the conclusion of the trial. The remaining accused were all convicted on the main count and sentenced to varying terms of imprisonment. The appellants were subsequently granted leave by the Court a quo to appeal to this Court against their convictions only. Hence the present appeal.

I Section 54(1) of the Act provides:

'(1) Any person who with intent to -

(a)

overthrow or endanger the State authority in the Republic;

(b)

achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the Republic;

(c)

induce the Government of the Republic to do or to abstain from doing any act or to adopt or to abandon a particular standpoint; J or

Smalberger JA

(d)

A put in fear or demoralise the general public, a particular population group or the inhabitants of a particular area in the Republic, or to induce the said public or such population group or inhabitants to do or to abstain from doing any act,

in the Republic or elsewhere -

(i)

B commits an act of violence or threatens or attempts to do so;

(ii)

performs any act which is aimed at causing, bringing about, promoting or contributing towards such act or threat of violence, or attempts, consents or takes any steps to perform such act;

(iii)

conspires with any other person to commit, bring about or perform any act or threat referred to in para (i) or act referred to in para (ii), or to aid in the commission, bringing about or performance thereof; or

(iv)

C incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about or perform such act or threat,

shall be guilty of the offence of terrorism and liable on conviction to the penalties provided for by law for the offence of treason.'

At the time of the alleged conduct giving rise to the appellants' convictions, the African National Congress ('the ANC') and its so-called D military wing, Umkhonto We Sizwe ('MK'), were unlawful organisations in terms of the provisions of s 1 of the Act. The preamble to the main count in the indictment alleged that at all relevant times

'the aims of the ANC included inter alia the overthrow or coercion of the Government of the Republic and/or the endangering of the State authority in the Republic by means of violence or threats of violence E or by means which include or envisage violence and/or threats of violence',

and that the accused, being members or active supporters of the ANC,

'associated themselves with the aims, objects and activities of the ANC and furthered or attempted to further the aims, objects and activities of the ANC'.

The gravamen of the main count was that the accused, acting alone or in furtherance of a common purpose with each other, and with intent to F achieve one or more of the objects set out in s 54(1)(a)-(d) of the Act, unlawfully conducted themselves in one or more of the respects listed in s 54(1)(i)-(iv) of the Act. Details were furnished of the specific conduct alleged against each accused.

The indictment sets out, in certain annexures thereto, the acts of accused Nos 5 and 10 on which the State relies to prove their guilt. It G is not necessary to detail these. Nor is there any need to analyse the indictment and further particulars thereto. At the hearing of the appeal it was common cause that the convictions of accused Nos 5 and 10 were dependent upon proof, against each personally, of their alleged conduct. That conduct will in due course become apparent when I deal with the evidence against them. The conviction of accused No 5 was based on the acceptance by the trial Court of the evidence of an accomplice referred to at the trial as D (to whom I shall continue to refer as such). The H conviction of accused No 10, on the other hand, was based on inferences drawn by the Court from certain pointings out which it accepted had been made by accused No 10. Neither accused No 5 nor accused No 10 gave evidence in their defence. Because their respective convictions were based on totally different facts and considerations I propose dealing separately with the appeal of each. I

The appeal of accused No 5

The gist of D's evidence, insofar as it relates to accused No 5, is as follows. He (ie D), a recognised political activist, was recruited as a member of the ANC and MK by accused No 3. The latter was a doctor at the King Edward VIII Hospital ('the Hospital') in Durban. After joining MK (which had been described by accused No 3 as the 'underground structure' J of the ANC) D was told by accused

Smalberger JA

A No 3 to recruit a cell of 'reliable people'. He considered accused No 5 a suitable candidate, and approached him in a bus when returning from a meeting of the United Democratic Front at Natal University. He arranged with accused No 5 to meet accused No 3 at the Hospital the following morning. The meeting took place at the Hospital cafeteria. D was present at the meeting. Accused No 3 told accused No 5 that he was recruiting B Indians for the ANC. Accused No 5 was apparently willing to join the ANC. He was told by accused No 3 that ANC operators do not function under their own names. Accused No 5 chose the code-name 'Lantis'. (D had previously been given the code-name 'Revelano Singh' alias 'Rev'; accused No 3's code-name was 'Mike'.) They were thereafter joined by one Lincoln. It is common cause that Lincoln at the time was the commander of MK for the C Natal region. They accompanied Lincoln to a room in the Hospital where he proceeded to give them theoretical training in the use of explosives (grenades and limpet mines) and the maintenance of 'dead letter boxes' ('DLB's'), the latter being a depository for arms and explosives. He also instructed them on surveillance, discipline and the use of code-names. They later returned to the cafeteria. They had lunch with accused No 3; thereafter accused No 3 gave them money for their bus fares and they went D home. There had earlier been some discussion, initiated by accused No 3, about recruitment. Accused No 5 had mentioned that he had two persons in mind to recruit.

On the following Wednesday a further meeting took place between accused No 3, accused No 5 and D at the Unit 2 swimming pool. Accused No 5 reported that he had been unsuccessful in enlisting the persons he had attempted to recruit. On a later date accused No 3 telephoned D. He E asked D to contact accused No 5, and arranged for them to meet him that same night at the Unit 2 shopping centre. They met as arranged. Accused No 3 was accompanied by Lincoln. D and accused No 5 were blindfolded. They were then driven to a house where they were taken into a room. There various explosive devices were taken out of a bag. Lincoln instructed them in the use of grenades and the operation of limpet mines. After the training session they were again blindfolded, and were F then taken home. An arrangement was made to reconnoitre the...