S v Tsotsobe and Others

• Jurisdiction: South Africa
• Judge: Rabie CJ, Jansen JA, Joubert JA, Viljoen JA and Van Heerden AJA
• Judgment Date: 26 November 1982
• Citation: 1983 (1) SA 856 (A)
• Hearing Date: 03 September 1982
• Court: Appellate Division

Rabie CJ:

The three appellants were found guilty of high B treason in the Transvaal Provincial Division (THERON J sitting with two assessors) and sentenced to death. The indictment contains a number of charges in the alternative to the main charge of high treason, but they are not relevant to the appeal and particulars thereof need not be given. The learned trial C Judge gave the appellants leave to appeal to this Court. Each of the appellants appeals against his conviction and sentence.

In the preamble to the indictment it is alleged inter alia that the appellants were at all relevant times members and/or active supporters of the organisation known as the African National D Congress (hereinafter referred to as "the ANC"); that the ANC at all relevant times had as its goal the unlawful overthrow and/or endangering of the lawful Government of the Republic of South Africa by means of violence and/or threats of violence or by other means which involved or included the use of violence; that, in pursuing its said aim, the ANC and its members and E active supporters jointly and severally committed the following acts, viz:

"(i) the recruiting of persons in the Republic of South Africa to support the ANC and/or to join the ANC; (ii) the recruiting of persons in the Republic of South Africa for the purpose of receiving from or through the agency of the F ANC military training and/or training in warfare, sabotage and subversion; (iii) the deployment of persons, trained as aforesaid, in the Republic of South Africa with instructions to commit acts of war, sabotage and subversion; (iv) the supply of weapons and other equipment to persons trained as aforesaid, which weapons and other equipment are needed and can be used for committing acts of war, sabotage and subversion"

G (translation, the indictment being in Afrikaans); that the appellants at all relevant times owed allegiance to the Republic of South Africa by virtue of their being citizens and/or subjects and/or inhabitants of the country; that the appellants at all relevant times conspired with the ANC and all H its members and active supporters, and thus with each other, to pursue the aforesaid aims of the ANC, and that in carrying out this conspiracy each of the appellants committed the acts set out in the charges contained in the indictment.

In the introductory paragraph to the charge of high treason it is alleged inter alia that the appellants

"with a common purpose and acting in the execution of the aforesaid conspiracy with members and/or active supporters of the ANC

Rabie CJ

in an effort to further the aims of the ANC, wrongfully and with hostile intent against the State and with the intention of overthrowing or endangering the State"

(translation) committed one or more of the acts set out in A annexures "A", "B" and "C" to the indictment.

Annexure "A", in which the acts the first appellant is alleged to have committed are set out, reads as follows (translation):

"1.

During the period 1976 to 1977 (the exact date is not known to the State) the accused joined the ANC.

2.

During 1977 to 1980 (the exact dates are not known to the B State) the accused received military training in Angola.

3.

On 3 April 1980 at Diepkloof, Soweto, the accused and another person, not known to the State, robbed one Derrick Ndlovu of a Valiant motor car with the intention of using it in an attack on the South African Police Station at Booysens, Johannesburg.

4.

During the early hours of the morning of 3 April 1980 the C accused and other persons, not known to the State, attacked the building housing the charge office of the South African Police at Booysens, Johannesburg. During the attack a large number of shots were fired with AK 47 submachine guns, and also three shots with an RPG 7 rocket launcher.

5.

During the night of 5 May 1980 the accused and other persons, not known to the State, launched an attack on 'Uncle Tom's Hall' at Orlando West, in the district of Johannesburg. In the course of the attack the D night-watchman, one Wilson Lebea, was overpowered, his hands and feet were tied and he was left in the kitchen of the building. Thereafter the building was set on fire by the accused and his companions.

6.

During the night of 14 - 15 October 1980 the accused and a person not known to the State made an attack on the South African Railways station at Dube, in the district of E Johannesburg. Ten charges of TNT-explosive were at various points placed underneath and next to railway lines and connected with an electric self-timer switch and detonators. Only two of the charges exploded and damage was caused to a railway line and a points machine.

7.

During the evening of 30 October 1980 the accused and a person to the State unknown launched an attack on the offices of the West Rand Administration Board at Diepkloof, F in the district of Johannesburg. During the attack two hand-grenades were thrown on to the verandah of the building. The explosions caused damage to the building and injured one Zephanie Thungo and one Maggie Molalo, who were on the verandah at the time of the attack. One Wilson Memasalzhe left the verandah moments before the hand-grenades exploded and was in a room next to the verandah when the explosions occurred.

8.

During the period April to November 1980 the accused G together with other persons not known to the State established an underground base at Meadowlands, in the district of Johannesburg, which was to serve as living-quarters for members of the ANC who had received military training and/or as a hide-out and/or as an arms storage depot and from which attacks on various targets (the exact nature of which is not known to the State) could be planned and executed.

9.

Prior to or during November 1980, and in the district of H Johannesburg, the accused had in his possession or under his control, or had knowledge of, or hid, the weapons, ammunition and explosives mentioned in annexure 'AA' hereto, which weapons, ammunition and explosives were intended to be used for committing acts of war, sabotage and subversion."

Annexure "AA", referred to in para 9 immediately above, contains a list of weapons, ammunition and explosives which had been hidden underground and were found by the police at four places in or near Johannesburg which were...