S v Malinde and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ, Botha JA, Nicholas AJA
• Judgment Date: 25 September 1989
• Citation: 1990 (1) SA 57 (A)
• Hearing Date: 24 August 1989
• Court: Appellate Division

Nicholas AJA:

This is an application on petition for directions concerning the prosecution of a criminal appeal.

D The petitioners (who will be referred to collectively as 'the appellants') were 11 of 22 persons who were indicted in the Transvaal Provincial Division on charges of treason, alternatively terrorism (in terms of s 54(1) of the Internal Security Act 74 of 1982), subversion (in terms of s 54(2) of that Act), murder and, after an amendment E granted on 4 November 1985, furthering the objects of an unlawful organisation (in terms of s 13 of that Act).

In terms of s 145(2) of the Criminal Procedure Act 51 of 1977 ('the Act'), the trial Judge, Van Dijkhorst J, summoned two assessors to assist him in the trial. They were Dr W A Joubert, formerly a professor F of law, and since 1980 an honorary professor of law, at the University of South Africa; and Mr W F Krugel, the president of the regional court for the Northern Transvaal.

The trial began at Bethal on 16 October 1985, and continued at Delmas from 4 November. The first two months were occupied with preliminary G legal argument. The accused pleaded on 20 January 1986, and the first State witness was called on the following day. The State case closed in September 1986, and an application for discharge resulted in three of the accused being acquitted. The defence case was begun on 21 January 1987. On 15 November 1988 the learned Judge began reading the trial Court's judgment. The seventh, ninth, tenth and eleventh petitioners H were convicted of treason, and the first, second, third, fourth, fifth, sixth and eighth petitioners were convicted of terrorism. The remaining eight accused were acquitted. The first, seventh, ninth, tenth and eleventh petitioners were sentenced to terms of imprisonment which they are now serving on Robben Island. The remaining petitioners received suspended sentences.

I The appellants made application to the trial Judge for the noting of special entries on the record in terms of s 317 of the Act and for general leave to appeal.

The trial Judge made certain of the special entries sought, but refused to make the others. He granted leave to appeal on the merits, limited in certain respects, to those accused who had been convicted of J treason, and

Nicholas AJA

A refused it to the others. The appellants intend to petition the Chief Justice for leave to appeal in respect of the areas in which leave was refused by the trial Judge.

The trial, which became known as the Delmas trial, is believed to be the longest in South African legal history. It stretched over 37 months, during which the Court sat on 437 days. 278 witnesses (152 for the State B and 126 for the defence) gave evidence. The record of evidence and argument comprises 459 volumes containing 27 194 pages. There are 1 556 documentary exhibits which are composed of 14 425 pages. There were put in at the trial 42 video and audio tapes, five rolls of 16 mm film and numerous photographs and maps. The trial Court's judgment took four days to deliver and runs to over 1 500 pages. The hearing of the case in C mitigation occupied four days, and the application for leave to appeal spanned three days.

The events which gave rise to the special entries to which this application relates, had their beginning on 10 March 1987. When the D Court sat on that day Van Dijkhorst J made an announcement. He said:

'Before the witness is sworn in, I would like to make a statement. It is the case for the State that the ANC called for the formation of a United Democratic Front which was to organise, mobilise, condition, and politicise, inflame, indoctrinate, co-ordinate and/or activate the Black masses to participate in activities, deeds, projects, and/or violence whereby the Republic of South Africa is made ungovernable. It is the E State's case that the UDF was formed with its aims, the unlawful overthrow and/or endangerment of the lawful Government by violence and/or threats of violence and/or by other means which include or intend violence. It is the State's case that the UDF knows that it must unite, organise, mobilise, politically incite, condition and/or activate the Black masses to participate in acts and/or violence whereby the Republic of South Africa is made ungovernable and that, to attain this goal, F inter alia propaganda attacks are used. It is the State's case that the UDF adopted broad guidelines for a programme of action and in furtherance of its aim to organise, mobilise and activate the Black masses around day-to-day issues, certain campaigns were decided upon. On 5 and 6 November 1983 the National Executive Council discussed a strategy to further the ANC and South African Communist party and/or UDF's campaign against the new constitutional policy of the Government by a million signature campaign against the constitution, so it is G alleged. It is alleged that this campaign was to improve the organisational capabilities of activists and general organisation of the UDF, to strengthen affiliated organisations and to create enormous propaganda against the Government and its policies. This is the State's case. It has to be proved. I express no opinion on the State's chances in this respect. What is clear is that the million signature campaign is an important facet of the State's case. It follows that it merits dispassionate and unfettered consideration by Judge and assessors. When H I approached my learned assessors to act in that capacity, I enquired whether they had had any relationship with the UDF. The answer was negative in both cases. Yesterday during the course of the morning, accused No 6 was cross-examined on the million signature campaign. During the tea adjournment in a discussion of the case the learned assessor, Dr W A Joubert, informed me that he had in fact participated in the million signature campaign by signing one of its declarations. An I example is exh AS1 document 2 which has as its logo 'the UDF' and on top 'One Million Signature Campaign' and then the following declaration is set out to which the signatories subscribe:

'We, the freedom loving South Africans, declare for the whole world to know that we reject apartheid, we support the struggle and J unity of our people against

Nicholas AJA

A the evils of apartheid, we stand for the creation of a non-racial democratic South Africa free of oppression, economic exploitation and racism, we say no to the new constitution because it will further entrench apartheid and White domination, no to the Koornhof laws which will deprive more and more African people of their birthright, yes to the United Democratic Front, UDF, and give it our full support in its efforts to unite our people in their fight B against the constitution and Koornhof Bills.'

Whether the UDF's efforts to unite the people in their fight against the constitution, and inter alia the Black Local Authorities, that is the Koornhof Bills, are unlawful and treasonable is one of the main issues in this case. I was perturbed at the implication of these facts and considered the matter from all angles last night. I also consulted the C learned Judge-President of the Transvaal Provincial Division. I have regretfully come to the conclusion that there is no option but to rule that Dr W A Joubert has to recuse himself. I hold that Dr Joubert has become unable to act as assessor and in terms of s 147 of the Criminal Procedure Act 51 of 1977. I direct that the trial proceed before the remaining members of the Court.'

There followed an application by the accused for an order quashing the D trial on the ground inter alia that the dismissal of Dr Joubert had been made without power and was wrong in law, and that in consequence the Court was not properly constituted. In the alternative it was asked that the trial Judge and Mr Krugel recuse themselves from the trial.

In support of the application reliance was placed on two affidavits by E Dr Joubert (one, 'the first report', was annexed to the founding affdavit; the other 'the second report', was annexed to the replying affidavit).

The hearing of the application commenced on 30 March 1987. Before counsel for the accused began their argument, Van Dijkhorst J said that he would like to place certain facts on record. He then made a statement which covers some 16 pages. It was largely in reaction to Dr Joubert's F reports. the learned Judge referred to the relations during the trial between Dr Joubert and himself, and the circumstances which gave rise to, and discussions preceding, his decision to exclude Dr Joubert from further participation in the trial as an assessor. The statement was in some respects critical of Dr Joubert and of his competence as an assessor. It also dealt with certain allegations which had been made in G the founding affidavit against Mr Assessor Krugel.

During the argument the defence received a further report from Dr Joubert ('the third report') which was a response to the statement made by the learned Judge on 30 March 1987. After argument, Van Dijkhorst J H ruled on 2 April 1987 that the third report was inadmissible, and that any direct or indirect reference to its contents would not be permitted. He made a similar ruling in respect of para 6 of the second report. He indicated that it would not be permissible to contradict what he had said in his statement in regard to the events leading up to the exclusion of Dr Joubert.

I Defence counsel then informed the Judge that in view of his rulings the accused were not able to proceed with the application for recusal.

The application was then dismissed in toto on 2 April 1987. Reasons for judgment were handed down on 10 April 1987. They are reported sub nom S v Baleka and Others (4)1988 (4) SA 688 (T), and the judgment will J be referred to hereinafter as 'the reported judgment'.

Nicholas AJA

A During the application for the noting of...