S v Mbele and Others

• Jurisdiction: South Africa
• Judge: Caney J, James J and Harcourt J
• Judgment Date: 18 September 1964
• Citation: 1964 (4) SA 401 (N)
• Hearing Date: 31 August 1964
• Court: Natal Provincial Division

F Caney, J.:

The seven appellants, all Bantu males, were charged, along with 18 other Bantu males and females, in the court of a regional magistrate with contravening the provisions of the Suppression of Communism Act, 44 of 1950, as amended. Count 1 alleged them to be guilty of the offence of contravening sec. 3 (1) (a) (i), read with secs. 1, 11 and 12 of the Act, and further read with other relevant legislation, G in that during or about the period 8th April, 1960, to 30th June, 1963, they

'did wrongfully and unlawfully become or continue to be office-bearers, officers or members of an unlawful organization, to wit, the organisation known as the African National Congress, which became unlawful on 8th April, 1960'.

Count 2 alleged them to be guilty of the offence of contravening sec. 3 H (1) (a) (iv), alternatively sec. 11 (a), or further alternatively, sec. 11 (b), read with secs. 1, 11 and 12 of the Act, and further read with other relevant legislation; the main allegation against them in count 2 was that, during the same period as that stated in count 1, the accused

'did wrongfully and unlawfully take part in activities of an unlawful organization, or carry on in the direct or indirect interest of an unlawful organization, any activity in which it was or could have engaged'

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at the date upon which it became an unlawful organisation, that is to say, 8th April, 1960, the organisation being the African National Congress, and that the accused did these things

'by attending and taking part in meetings thereof, and/or by taking part in or assisting in the organisation of its affairs, and/or by A advocating, advising, defending or encouraging the promotion of the purposes of the said African National Congress'.

It is unnecessary to say more of the alternative and further alternative to count 2.

Sec. 3 (1) (a) (i) and (iv) of the Act read:

'(1) As from the date upon which an organisation becomes an unlawful B organisation . . .

(a)

no person shall -

(i)

become, continue to be or perform any act as an office-bearer, officer, or member of the unlawful organisation; or . . .

(iv)

in any way take part in any activity of the unlawful organisation, or carry on in the direct or indirect interest of the unlawful organisation, any activity in which it was or could have engaged at the said date.'

C In response to applications for further particulars, the prosecutor made it clear that the State relied, in relation to count 1, upon establishing de facto membership on the part of each accused in the African National Congress and, in the alternative, on the presumption raised by sec. 12 (1) of the Act from attendance alleged on the part of each accused at meetings of that organisation and from their having D allegedly advocated, advised, defended or encouraged the promotion of the purposes of the organisation; a schedule (annexure 'Z') was supplied containing information by which to identify meetings alleged to have been attended in each instance by those of the accused whose numbers were set against the particulars of the relevant meeting in the E schedule. Other particulars, in addition, were supplied, but it appears to be not necessary now to discuss them, in view of the turn the case took at the trial. Sec. 12 (1), so far as is relevant, reads as follows:

'If in any prosecution under this Act . . . in which it is alleged that any person is or was a member . . . of any organisation, it is proved that he attended any meeting of that organisation . . . he shall be presumed until the contrary is proved, to be or to have been a member . . . of that organisation. . . .'

F All the accused pleaded 'not guilty' at the commencement of the trial and they were all represented, various of them by different counsel.

The evidence laid before the magistrate commenced on 1st April, 1964, with that of one Steven Mtjali, who admittedly had been a member of the G African National Congress and was a confessed saboteur. His evidence, largely, was directed to telling of the various meetings attended by the various accused, and the part each took at those meetings. On 7th April Mtjali's evidence was interrupted by the announcement on behalf of the seven appellants that they desired to change their pleas from 'not guilty' to 'guilty' in certain respects. Those who changed their pleas, H and the extent to which they pleaded 'guilty', are indicated by what follows: the accused Nos. 1, 2, 5, 16 and 18 pleaded 'guilty' to count 1 and to the main count 2; Nos. 11 and 17 pleaded 'guilty' to count 1 only and persisted in their pleas of 'not guilty' to count 2. The prosecutor then applied for and was granted a separation of trials, with the consequence that the case then proceeded against only those who had pleaded 'guilty'. It is to be noted that the cases against Nos. 11 and 17 on count 2, in respect of

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which they both maintained their pleas of 'not guilty', were also separated. The trial of the seven accused who had pleaded 'guilty', now the seven appellants, proceeded. They continued to be designated by the numbers by which they had been formerly designated.

A Apart from the evidence of a policeman who spoke of the arrests and put in documents relating to the African National Congress and that of an interpreter, the State case rested on Mtjali, who continued this evidence after the change of pleas, and on one Solomon Mbanjwa, also admittedly a member of the African National Congress and a confessed saboteur; he followed Mtjali as a witness. His evidence, like that of B Mtjali, was directed to showing that various of the seven accused now remaining before the court had attended various of the meetings scheduled in the annexure to the particulars, and the part each took at those meetings. In respect of some meetings both witnesses spoke and, consequently, in so far as their evidence agreed as to which of the C accused attended such meetings, they corroborated each other to that extent; in addition, each of them spoke of meetings in respect of which the other gave no evidence and so, in relation to those meetings, there is the evidence of only one of them concerning the alleged attendance of those accused whom that witness says attended such meetings. None of the accused gave evidence in his defence, nor were any witnesses called on behalf of any of them. After hearing addresses on the part of the D prosecutor and defending counsel, the magistrate delivered a considered judgment in which he found six of the accused to be guilty on those counts to which, on 7th April, they had pleaded 'guilty'; the remaining one, No. 5, he convicted on count 1 only, despite his plea of 'guilty' on count 2. After verdict, all seven accused made unsworn statements, E pleading in mitigation of sentence; also there was called as a witness on their behalf Ronald Charles Albino, a Professor of Psychology, who gave evidence of the effects of solitary confinement, to which all the accused had, in greater or smaller degree, been subjected during the course of detention under the provisions of sec. 17 of the General Law Amendment Act, 37 of 1963, prior to charges having been laid against F them. The magistrate passed sentences on the accused as follows:

No. 1, on count 1, 18 months' imprisonment and, on count 2, 21/2 years' imprisonment.

No. 2, on count 1, 18 months' imprisonment and, on count 2, 21/2 years' imprisonment;

G No. 5, on count 1, 12 months' imprisonment;

No. 11, on count 1, 2 years' imprisonment;

No. 16, on count 1, 18 months' imprisonment and, on count 2, 18 months' imprisonment;

No. 17, on count 1, 2 years' imprisonment;

H No. 18, on count 1, 2 years' imprisonment and, on count 2, 3 years' imprisonment.

All seven accused noted appeals against the sentences passed upon them and, in addition, No. 17 noted an appeal against his conviction.

Before coming to the consideration of the grounds contained in the notice of appeal, it is convenient to refer to the fact that at the commencement of the argument on the appeal, Mr. Unterhalter, on behalf

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of the appellants, applied to amend the grounds of appeal in two respects. In so far as concerned those appellants who had been convicted on both counts, he sought to add a new ground that

'There was an improper splitting of convictions in that the accused were convicted of both a contravention of sec. 3 (1) (a) (i) and sec. 3 (1) (a) (iv) of'

A the Statute. Mr. Combrinck, who appeared for the State, withdrew his opposition to the addition on this ground of appeal upon our putting to him that, if it were to appear that there had been an improper splitting of charges and consequently of convictions, we would, in all probability, feel constrained to correct the situation by the exercise B of our powers of review under sec. 98 (4) of the Magistrates' Courts Act, 32 of 1944, and that, in any event, the proposed new ground of appeal was appropriate for consideration in relation to the sentences. We allowed this ground of appeal to be added.

The other ground which Mr. Unterhalter wished to be added was expressed C to be on behalf of all the appellants as a ground of appeal against their convictions, but Mr. Unterhalter said it related solely to No. 5 accused, apparently because his conviction was based solely and entirely on the presumption contained in sec. 12 (1) of the Act; there was no evidence whatsoever of any activity on his part. The ground sought to be raised was

'that the evidence did not disclose that the meetings allegedly attended D by the appellants were meetings of the African National Congress, and, consequently, the State did not prove that the appellants were members of the African National Congress'.

On the face of this, it appeared that the appellants wished to canvass the evidence in relation to the question whether the meetings had been E established to be meetings of...