S v Mathope and Others

• Jurisdiction: South Africa
• Judge: Steenkamp J
• Judgment Date: 02 November 1981
• Citation: 1982 (3) SA 296 (B)
• Hearing Date: 19 October 1981
• Court: Bophuthatswana Supreme Court

Steenkamp J:

F The four appellants were charged in the regional court with contravening s 3 (1) (a) (ii) read with ss 15 (e) and 16 (1) of Act 32 of 1979 (B) (hereinafter referred to as the Internal Security Act). All four appellants were found guilty and each of them was sentenced to G six years' imprisonment of which four years were suspended on certain conditions. The appeal was against their convictions and sentences and has already been upheld. Here are the reasons.

The chargesheet reads as follows:

'Dat die beskuldigde skuldig is aan die misdryf van oortreding van art 3 (i) (a) (ii) saamgelees met arts 15 (e) en 16 (1) van Wet 32 van 1979. Die Wet op Staatsveiligheid.

Deurdat die beskuldigdes op of gedurende Julie 1979 en te of naby Ga-Rankuwa in die distrik van Odi wederregtelik in besit was van publikasies te wete vlugskrifte wat die doelstellings van die verbode 'African National Congress' organisasie bepleit of bevorder en dat die genoemde beskuldigdes derhalwe ampsdraers, beamptes of lede van die genoemde organisasie is.'

The gravamen of the charge is, therefore, that the appellants possessed pamphlets which advocated or promoted the aims of the African National Congress (hereinafter referred to as the 'ANC'), and

Steenkamp J

that, therefore, they were office bearers, officers or members of the ANC.

Before the appellants pleaded in the court a quo, counsel for the A defence objected to the charge and submitted that the charge does not disclose an offence in that the ANC is not an unlawful organisation in Bophuthatswana in terms of Act 32 of 1979.

The court a quo rejected the objection and ruled that the appellants should plead on the charge as it stands. The reasons of the court a quo for rejecting the objection are not clear to me but Mr Farrell, who B appeared for the State in this Court, repeated some of the arguments. I will deal with these arguments at a later stage.

In this Court Mr Dane, who appeared for all the appellants, submitted that the appellants committed no offence in terms of the Internal C Security Act with which they had been charged. He contended further that the Minister of Law and Order can only declare an organisation unlawful if he is satisfied that the grounds enunciated in (a), (b), (c ) or (d) of s 2 (1) are present. Failing the presence of such grounds, it was submitted that the Minister is not entitled to declare an organisation unlawful.

D It was pointed out by Mr Dane that no proclamation declaring the ANC unlawful in terms of s 2 (1) of the Internal Security Act has been promulgated; accordingly, it was submitted that no offence was committed in terms of s 3 (1).

It was further contended that it is not competent to try and rely upon E the South African Act 34 of 1960, which declared the ANC unlawful in South Africa, because the said Act has no bearing on a charge under s 3 (1) of the Internal Security Act.

Mr Farrell, on behalf of the State, has countered the arguments advanced by Mr Dane by submitting that Act 34 of 1960 is still in force in Bophuthatswana as well as the proclamations and regulations issued by virtue of it. (See s 93 (1) and (2) of the Constitution Act 18 of 1977.) F It was pointed out by Mr Farrell that s 1 (1) of Act 34 of 1960 provides that if the Governor-General of South Africa is satisfied that the public order 'is seriously threatened, or it is likely to be seriously threatened' by the ANC, he is entitled to declare the ANC, without any notice, to be an unlawful organisation. In terms of Proc 119 G of 1960 (as amended by s 22 of Act 93 of 1963) the ANC was declared an unlawful organisation in South Africa. He also referred to s 2 (a) of Act 34 of 1960 which provides inter alia that:

'any reference in the Suppression of Communism Act 1950 to any organisation which has in terms of ss (2) of s 2 of that Act been declared to be an unlawful organisation, shall be construed as a H reference to an organisation which has been declared to be an unlawful organisation under ss (1) or (2) of s 1 of this Act;'.

Mr Farrell contended further that s 46 (1) of the Internal Security Act has repealed Act 44 of 1950 but s 2 (1) of the Internal Security Act has re-enacted s 2 (2) of Act 44 of 1950 in the manner envisaged by s...