S v Gaba

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Viljoen JA, Hoexter JA and Hefer JA
• Judgment Date: 12 September 1985
• Hearing Date: 20 May 1985
• Court: Appellate Division

A Viljoen JA:

The appellant was accused No 3 in the Court a quo. Together with one Patrick Ntobeko Maqubela (accused No 1) and Mboniswa De Villiers Richard Maqhutyana (accused No 2) he stood arraigned on a number of charges. In addition each accused separately faced one or more charges. Count 1 contains a charge of high treason. This count was regarded by the State as the B main charge. There were alternative charges alleging contraventions of the Terrorism Act 83 of 1967, of sabotage in contravention of the General Law Amendment Act 76 of 1962, and various other charges which I need not specify.

The appellant was arrested at his place of employment near East London on 25 November 1981. It is and was at all material times common cause that he was born in Cape Town of a father born in C Transkei and a mother born in Ciskei and that his parents were domiciled in Transkei at the time of his birth. According to a travel document found in his room when he was arrested he is a Transkeian citizen. On this document is an endorsement dated 8 December 1980 authorising him to proceed to Johannesburg to pursue a study course of two years at the D Technikon in Bedfordview. Although the endorsement suggests that he intended to absent himself from Transkei for two years, counsel for the State conceded in the Court a quo that from information he had received the appellant was employed and was residing in Umtata at the time an explosion in Field Street, E Durban, took place on Saturday morning of 7 February 1981. It was formally admitted by the defence that appellant was employed by LTA (a building construction firm) and that he resided in Mdantsane, a Black township near East London which now falls in Ciskei, from 1 May 1981 until the day of his arrest on 25 November 1981. Ciskei became independent on 4 F December 1981.

Count 1 (high treason) was based on a conspiracy to overthrow the State alleged to have existed between the ANC, the appellant, the two other accused and certain other people mentioned in the indictment. The Court a quo found on the facts, on count 1, that the residence of accused Nos 1 and 2 in the Republic was of sufficient permanence throughout the whole G period covered by the indictment (October 1980 to November 1981) and that of the appellant during the period 1 May 1981 to 24 November 1981, for them to have owed a debt of allegiance to the Republic during those periods.

The judgment in this regard in so far as it relates to the H appellant reads as follows:

"Some of the acts committed by accused No 3 in furtherance of the objectives of the conspiracy were committed before he took up residence and owed allegiance to the Republic. When he visited Swaziland the first time and when he caused the Field Street explosion he was not resident in the Republic. This complicates his position somewhat. It however still leaves him as a member of the conspiracy and does not reduce his actual I participation, as the Court has found, in the conspiracy, nor does it in any way affect the hostile intent with which the Court has found he committed those acts. The conspiracy continued right through the period of the indictment and always with the same objectives and so did accused No 3's membership thereof and participation therein continue right through that period. It is only after he became resident in the Republic that his membership of the conspiracy is relevant in regard to the charge of high treason, and his first visit to Swaziland in October 1980 and his act of causing the explosion in Field Street can accordingly not form part of the offence of high J treason as far

Viljoen JA

A as he is concerned. The explosion in Field Street is covered by count 2, which charges the accused with the contravention of s 2 (1) (a) read with certain other sections of the Terrorism Act. This charge is based on the same principle as alleged in count 1. This offence can be committed by a person who does not owe allegiance to the Republic. The act of explosion committed by accused No 3, which took place in Durban in the Republic, certainly had or was likely to have the results set out in paras (b), (c), (e), (f), (g), (h), (i), (k) and (l) of s 2 (2) B of the Terrorism Act and it follows that, there being no proof to the contrary, accused No 3 committed this act with intent to endanger the maintenance of law and order in the Republic.

The end result is perhaps not any different as far as all three accused are concerned, for, as was stated in S v Mange 1980 (4) SA 613 (A) at 619, this is terrorism in any language, but in C common law, if committed by persons owing allegiance to the State, it is also high treason."

The Court a quo convicted the other two accused and the appellant of high treason on count 1 and convicted the appellant on count 2 in regard to the explosion in Field Street. It sentenced the appellant and the other two accused to serve a sentence of 20 years' imprisonment each. With the leave of this Court, leave having been refused him by the Court a D quo, the appellant now appeals against his conviction.

Mr Wentzel, counsel who appeared before the Court a quo, prepared a set of heads of argument. In these heads an attack was made on the validity of a certificate issued by the Minister of Justice in terms of s 111 (1) of the Criminal E Procedure Act 51 of 1977, the contention being that, as the majority of the offences alleged against the appellant were committed in the present Ciskei, the Courts of the Republic of South Africa had no jurisdiction after Ciskei became independent and the certificate was, consequently, a nullity; since it affected the offences alleged to have been committed F outside Ciskei, the appellant was seriously prejudiced. A further submission was that the Court a quo wrongly convicted the appellant of high treason, because the appellant was neither a citizen of the Republic of South Africa, nor did he reside in the Republic at the time of the Field Street explosion. In all the circumstances the appellant was not shown G to have that quality of allegiance which is an essential ingredient of the crime of high treason, it was contended. It was submitted, thirdly, that a confession made by the appellant before a magistrate should not have been admitted by the Court a quo.

Mr Bizos, who appeared for the appellant before this Court, H submitted supplementary heads of argument on the issue of the admissibility of the confession only and informed the Court that, while not abandoning the submissions of his predecessor on the issues of the validity of the certificate issued by the Minister and the allegiance the appellant owed to the Republic, he did not propose to address the Court thereon. Mr Bizos was as good as his word and contented himself with assailing the I finding of the Court a quo that the confession was admissible. It was contended, both in the first set of heads of argument as well as by Mr Bizos, that if the confession were wrongly admitted the conviction cannot stand. Mr Slabbert, for the State, on the other hand, submitted that, even if the confession were held to have been wrongly admitted, there was sufficient other evidence for a conviction. There is certainly J a considerable amount of evidence corroborating that which appears in the confession but

Viljoen JA

whether such evidence is, standing alone, sufficient to support A a conviction I need not, in the view I take of the matter, consider. Since Mr Bizos has not abandoned the contentions relating to the validity of the Minister's notice and the allegiance owed by the appellant to the Republic of South Africa, I shall consider these submissions before proceeding to deal with the contention that the confession was wrongly B admitted.

Section 111 of Act 51 of 1977 provides that where the Minister deems it in the interests of the administration of justice that an offence committed within the area of jurisdiction of one Attorney-General be tried within the area of jurisdiction of another Attorney-General, he may in writing direct that criminal proceedings in respect of such offence be commenced in C a Court at a place within the jurisdiction of such other Attorney-General. The offences in respect of which the Minister issued the certificate were all alleged to have been committed in Mdantsane township, East London, within the jurisdiction of the Attorney-General of the Eastern Cape Provincial Division of the Supreme Court. These offences were specified in an annexure D to the notice as follows: participation in terroristic activities in contravention of s 2 (1) (c), read with certain other sections, of Act 83 of 1967; possession of explosives in contravention of s 28 read with s 1 of Act 26 of 1956; possession of a fire-arm, being a Makarov pistol, in contravention of s 2 read with s 1 and other sections of Act 75 E of 1969; possession of ammunition in contravention of s 36 read with s 1 and certain other sections of Act 75 of 1969 and possession of hand grenades in contravention of s 32 (1) (b) read with other sections of Act 75 of 1969.

The appellant was not convicted of any of these offences. In the heads of argument submitted by Mr Wentzel it was contended that as the offences were alleged to have been committed in F Mdantsane, now in Ciskei, the appellant was not amenable to the jurisdiction of the Natal Provincial Division. Jurisdiction, the argument proceeded, ordinarily is territorial unless there is a statutory exemption, for example the Terrorism Act; accordingly the certificate given by the Minister was of no force and effect. It follows, in counsel's G submission, that an irregularity occurred in charging the appellant with matters which concerned offences allegedly committed outside the jurisdiction of the Court in which he was tried and concerned matters highly prejudicial to him as far as the charge of high treason was...