S v Ratshitanga

• Jurisdiction: South Africa
• Judge: Klopper ACJ and Van der Spuy AJ
• Judgment Date: 07 April 1986
• Hearing Date: 10 March 1986
• Court: Venda Supreme Court

Van der Spuy AJ:

This is an appeal against the conviction of appellant by the learned regional magistrate for Venda of a E contravention of s 3 of Act 83 of 1967 (the Terrorism Act, hereinafter referred as "the Act").

Appellant was found guilty on a charge which alleged that, during or about November to December 1981 and in the district of Sibasa, in the regional division of Venda, appellant unlawfully rendered assistance either directly or indirectly to persons whom he had reason to believe to be terrorists.

F The appellant was sentenced to the minimum compulsory sentence, namely five years' imprisonment as prescribed by s 3 of the Act. The salient facts, as outlined by the State, were that appellant had introduced one Alfred Denga, the main State witness, to three alleged terrorists (hereinafter referred to G as "terrorists"). These terrorists' names were unknown to the State and in fact they were at no time arrested or held inside the Republic of Venda, but seem to have been in transit through Venda to some extraterritorial destination.

Appellant had accompanied Denga and the three terrorists from the garden of one Rasheka Ratshitanga, that is the elder brother of appellant, to Tshidzivhe. Appellant requested Denga H en route to assist the terrorists. During the same journey the terrorists requested food from Denga who took them to the late Samuel Tshikhudo to obtain food. At this stage appellant parted company from the terrorists and Denga, but the following day appellant went to Denga and ordered him to accompany one of the terrorists from Tshidzivhe to Tshixwadza. At the I Tshixwadza-Gogogo T-junction appellant met Denga and the three terrorists on their arrival. Appellant then transported Denga and the terrorists around an area called Tshixwadza Mountain in the direction of the Fefe Location where the terrorists were left and thereafter they were not seen again in Venda.

Appellant concedes in his heads of argument that assistance was rendered to these three terrorists within the meaning of s 3 of J Act 83 of 1967. The appeal was argued on the footing that, even if it could be said

Van der Spuy AJ

that the appellant had reason to believe that these three A persons were terrorists, there was still a further element of the offence which required proof, namely that in fact the three persons were terrorists. On this aspect the Attorney-General for Venda, Mr J H du Plessis, joined issue, arguing that it is not a requirement of s 3 that there must be proof that the persons involved were in fact terrorists.

We find it convenient to deal at the outset with the legal B contentions advanced on behalf of the parties, namely by Mr Schwartzman SC, with him, Mr Loxton, for appellant, and Mr Du Plessis for the State.

Section 3 reads as follows:

"3.

Harbouring of or concealing or rendering assistance to terrorists - Any person C who harbours or conceals or directly or indirectly renders any assistance to any other person whom he has reason to believe to be a terrorist, shall be guilty of an offence and liable on conviction to the penalties provided by law for the offence of treason:..."

The rest of the section is not material to this appeal since the appeal against the sentence is not proceeded with. The words "whom he has reason to believe to be a terrorist" are D italicised by us.

Section 1 of Act 83 of 1967 defines a "terrorist" as any person who has committed an offence under s 2 or an act which had or was likely to have had any of the results referred to in s 2 (2). For purposes of this judgment it is necessary to consider and to decide upon the proper interpretation of Act 83 of 1967 E since it still obtains in the Republic of Venda, albeit already repealed in the Republic of South Africa by the Internal Security Act of that country, namely Act 74 of 1982. Mr Du Plessis referred us to s 54 of the Internal Security Act, but we find that we can gain no benefit from studying the provisions of that Act which in no way corresponds with s 3 of F Act 83 of 1967.

It is necessary in this matter to decide the issue whether it is a requirement of the law in terms of s 3 to prove that the persons, whom the accused had reason to believe were terrorists, were in fact terrorists. Section 2 (1) of Act 83 of 1967 describes several offences. It provides in general that any persons who with intent to endanger the maintenance of law and order undergoes or attempts or consents to undergo training G to be used to endanger the maintenance of law and order and who

"(c)

possesses any explosives, ammunition, fire-arms or weapons and who fails to prove beyond a reasonable doubt that he did not intend using such explosives, ammunition, fire-arms or weapon to commit any act likely to have any of the results referred to in ss H (2) in the Republic or any portion thereof shall be guilty of the offence of participation in terroristic activities and..."

For purposes of this judgment we need not quote the rest of the subsection which deals with sentence. The above italicising is ours.

The offence under s 2 (1) (c) is therefore not concerned only with the mere possession of fire-arms but it contains another element, although the onus of proving it rests upon an accused, I namely that the accused has to prove that he did not intend using the fire-arms to commit any act likely to have any of the results which are referred to in s 2 (2).

Now in turn s 2 (2) provides for certain presumptions, namely that if in any prosecution for an offence under ss (1) it is proved that the accused has committed or attempted to commit, or conspired with any other person to aid or to procure the J commission of, an act alleged in the charge

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A which is likely to have any of the results which then follow in s 2 (2) or results in hampering or deterring a person from assisting in the maintenance of law and order or in the embarrassment of the administration of the affairs of the State, then such accused shall be presumed to have committed or B attempted to commit such act with intent to endanger the maintenance of law and order in the Republic.

We pause to state that whenever the word "Republic" is used in Act 83 of 1967 the "Republic of Venda" must be substituted for that word by reason of s 61 of the Venda Constitution Act of 1979 which provides that all legislation which is not specifically withdrawn by the Venda Parliament shall be deemed C to be part of the law of Venda and that includes the Terrorism Act 83 of 1967.

We, therefore, agree with the submission of Mr Schwartzman that the "Republic" referred to in ss 2 and 3 of the Terrorism Act 83 of 1967 must be deemed to be a reference to the "Republic of Venda".

In our opinion, the...