23722.

in treason. MB. JUSTICE .̂ JiCOI. :

And the observations of the learned Judge that the ballot box is the only other way of changing the constitution? MR. NICHOLAS s

My lord, my submission is that the Crown has misunderstood what the learned Judge said there, I am going to deal with. that. ME. JJ5TICL. HUMPET :

Taking an example - it may perhaps make the position clear - in regard to the princi le. Assume that there are a hundred people who conspire to form an army to overthrow the state, the army being only the embryo for a bigger army, but it is an armed revolt which is planned, and the conspiracy is entered into and it is a term of the conspiracy that there will be money sent to th- Secretary, who will thhn order arms from some overseas person. Now assume that the secretary is found in possession of money, equivalent to the amount which has been agreed upon would be contributed by the various mer.bers of thj conspiracy. He is just found in possession of the money, say £2,000. His possession of the money, is that an overt act or not? ME. NICHOL-uS :

In my submission not, My Lord, it doesn't manifest the int-nt. The intent is proved by the conspiracy, the possession of the money proves no more than that.

23723-

MR. JU3TIC-J RUMPFF' s Without evidence of the conspiracy,

the possession of the money would mean nothing. But if the conspiracy is proved ... MR. NICHOLAS :

It takes the natter n further, My Lord, it only shows that thvj money has been received with an intent. MR. JUSTICE RUMPx F

That would not be an overt act. MR. NICHOLAS :

It would not* MR. JU3TICL, RUMPFF s

And assume that - with what intent? MR. NICHOLAS :

With the intent which appears from the conspiracy. MR. JUSTICJ RUMPFF ;

To buy riflus. MR. NICHOLAS s

To bu"r rifles, yes, My Lord. And he would be convicted upon proper proof of the conspiracy. But in our submission no further overt act has been committed. MR. JUSTIC, RUMPFF 5

No, I say, if a conspiracy is proved, and he is proved to have been found in possession of the money. You say that possession of tho money is not an overt act committed in purorsuance of the conspiracy?

23724.

ML. NICHOLAS ' We submit, My Lord, that thj possession

of the money, or rather the receipt of the money, does not manifest a hostile intent. MR. JUSTICJ RUMFF §

Well, let us put it slightly on a dif-ferent "basis. Assume that the evidence is that he is arrested while the money is being paid tc him as secretary - he being the secretary in terms of the conspiracy, and in t-rms of the conspiracy he having the duty to order the rifles and send the money across. You say that this person who then is arrested at the time when ha receives the money, that he can not be found guilty of an overt act of treason in receiving the money. Affi. NICHOLAS :

That is our submission, yes, My lord. MR. JUSTICE HJflDrPF s

Th ,t is your submission, and your argu-ment is because the act itself does not show the intent tc commit treason, th- hostile intent, you must look -and it is an act in pursuance of a conspiracy... MR. NICHOLAS i

It is not enough for an act to be in pursuance of a conspiracy to be an overt act. ML. JUSTIC-. B-iiZK+jP. 5

It must further th- conspiracy. MR. NICHOLAS :

•̂ nd it must manifest the intent.

23725.

ME. JU3TICJ RUMPFF : i

You are not satisfied even with an act which you have done in furtherance, unless -why do you say that? ME. NICHOLAS :

Because of the authorities. MR. JUoTIC-i RUMPFF i

i'hat only? ME. NICHOLAS i i

And My Lord, the submission - with submission, His Lordship Mr. Justice Goetzee said in Erasmus' case our law of treason is "based on justice and reason, My Lord, and the law requires, for the safeguard of subjects, that there should be an overt act recognisable as such. ME. JU5j-'IC--J RUMPFF :

Now this particular point has not crop-ped up before our Courts you say, this particular difficulty? MR. NICHOLAS :

ffij Lord , witn respect ... ME. JUjTIC-J RUIIPI'I :

In the sense that the evert act ... ME. NICHOLAS ?

It has never charged ... ME. JUSriO-J RUMPFF s

Yes, they were never charged with overt acts which, locking at themselves, did not disclose the intent.

23726.

MR. NICHOLAS : It has never boon charged, My Lord,

because there is no authority, either in the cases or in the old writers for charging any overt act oth^r than one which manifests a hostile intent. MB. JUSTICJ RUMPFF s

Now assume that in this conspiracy which I mentioned the secretary had sent a letter ordering th^ rifles, ordering five hundred rifles. The letter contains an order for five hundred rifles. Would that be an overt act? MR. NICHOLAS s

In my submission, My Lord, thatlett-r, depending on what oth.r circumstances were proved, that th. t letter taken by itself, would support an inference of a hostile purpose, and would therefore manifest the hostile intent. MR. JUSTIC.J RUMPFF :

And assume that the conspirators ordered one sten gur. for treasonable purposes, however that may be possible, and the secretary ordered one sten gun, would that letter be, on the face of it - would it disclose that intent? I am trying to find your reasons. Because fiv- hundred rifles ordered by a single individual... MR. NICHOLAS s

May manifest a hostile intent. MR. JUS ..IC-. RUMPFI s

And one sten gun? MR. -ilCHOLiiS s

My Lord, it is possible, it is possible -

23727.

Mo, My Lord, I don't think it is even possible that the ordering of one sten gun would support the inference of an attack on the state. MR. JUSTIC.J RUMPFF s

But would a letter ordering five hundred rifles, without anything more, without anything more, would that support an inference of treason? MR. NICHOLAS s

In my submission, yes. MR. JUSTICE RUMPF1 5

Without anything more? Just the letter? MR NICHOLAS ?

Yes, My Lord. Just in the same way as the letter written by Mrs» Wantzel, which wasnto be communicated to the enemy, supported an inference of treason. MR. JUSTICE RUMPFF t

The position there is slightly different, I think. Here I am putting it on the basis that the postal authorities intercept a letter from Mr. A, to a firm on the continent somewhere, for five hundred rifles, that is all. Now in the absence of anything else, you say that letter may support an inference of treason? MR. NICHOLAS :

It is capable of supporting an inference that a hostile purpose is to be effected. It may turn out, My Lord, on further examination that Mr. A is an arms merchant. ICR. JUSIICJ RUMPFF s

Could the Crown charge a man on that only

23728.

MR. NICHOLAS : My Lord, if they allege it - that with

hostile intent he orderad five hundred or a thousand rifles from England, that would with submission be a proper evert act charged. Whether they could prove ultimately that he had a hostile intent, or whether he could displace the prima facie inference from the ordering of such a large quantity of rifles is another matter. MR. JUSTICE EUMJFF ;

But you say on the evidence then, if that is the only evidence, that the signature is proved and the letter is produced, he ordered five hundred rifles, that is all4 you say that is capable of an inference that the man had a hostile intent against the state? MR. NICHOLAS :

Yes, My Lord, at the pleading stage. I submit, My Lord, that is the Crown alleged that with hostile intention, with intention ... MR. JUSTICE PJJMPFF' :

'o are on an cv^rt act, we are not at the pleading stage .,. MR. NICHOLAS 2

Y.s, My Lord. If the Crown alleged that A, with hostile intent, that is with an intention to levy war against the stace, ho ordered five hundred rifles, ... MR, JUSJIC^ RrC.TPFF s

I am looking at the act only, I am not

23729.

looking at the pleadings. man orders five hundred rifles. You s-iy that act. by itself is capable of an inference that he had a hostile intent? ME. NICHOLAS 5

Yes, My lord. It is capable... ME. JUSTICE RUHriT :

But when he orders twenty rifles? ME. NICHOLAS s

My Lord, one can reach a line where one wouldn't draw the inference. One can reach a point. But with a hundred Saracens My Lord, it would no doubt be clear. And he wouldn't be able to displace the suggestion of hostile intent. MR. J US TIC RUMPFF t

You say that an act done in pursuance of a conspiracy is not an overt act, however much it is relevant to the conspiracy and however much it is relevant tc the overthrow of the state, if that act does not by itself manifest ... MI;. NICHOLAS °

-s-nd if it is not capable of manifesting - I put it no higher than capable of manifesting an intent. COURT ADJOURNS.

23730.

COURT RJSUMJS.

ME. NICHOLAS :

May it pleasj Your Lordship* My Lord, I should have mentioned that Mr. Justice Ramsbottom in Wentzel' s case said at page 272 "7/hile it appears from thj authorities that hostile intent is the essence of the crime, th^xe must be an act which shows the existence of the hostile intent."

My Lord, I was making the submission that an act which is not treasonable is not a hostile act, does not suffer a change because it has been com-mitted in pursuance of a conspiracy. Because it is committed in pursuance of a conspiracy, it doesn't reveal the hostile intent any more than it would reveal hostile intent if there were no conspiracy. If a conspiracy is proved, that act of agreement manifests the hostile intent. The people agree together to overthrow the state, there is a plain manifestation of a hostile intent and an overt act of treason is committed. But if thereafter innocent acts, acts which dc not amount to acts of war, which do not reveal the hostile intent in themselves are committed, those acts do not show a hostile itveont merely because of the prior conspiracy. MR. JU3TIC-J iCrfSINiUDY s

But don't they become tainted by the conspiracy? MR. NICHOLAS %

My Lord, what they have to do is &o

23731.

manifest an intent, and one ioesn't get the intent unless one says I prove, the intent from the conspiracy, and here is the act. Then all that you are doing is to say this act is being done in conspiracy of - in pursuance of the conspiracy, in execution of the conspiracy. But one cannot say that this act manifests hostile indent. MR. JUSTICE K^NN^DY

If it is done in pursuance of the conspiracy, does it not therefore contain in itself the hostile intent? ME. NICHOLAS s

The hostile intent is still derived from the conspiracy. It is no different, My Lord, than a case where a person writes a letter, where he sets down his plan to murder, his personal plan to murder, in a document. One could then look at various acts afterwards and say this relates to your plan as set out in the letter. One coulin't say that those acts manifest an intention to kill so as to bring it within the rules stated in tho Digest... ME. JUS TIG ̂ ILDIu'IaDY s

A Doesn't this all turn, lor. Nicholas, on thw terms of the conspiracy? ME. NIOHOL-b.3 ;

My Lord, with respect, it turrB on the nature of an overt act in law. That it must manifest intent. Because My Lord, in any cmspiracy there may be treasonable t~rms and thvjre may be non-treasonable terms. There may be an arrangement

23732.

for tea to^be supplied^(?)# tQ a n e e t i n g c ^ x

subinited, My Lord, if such an arrangement were proved, it wouldn't turn the innocent act of making tea into a treasonable act, merely because it was dene in pursuance of the conspiracy. The reason is thatit doesn't manifest the intent. The submission is My Lord, that there is a fundamental difference between acts which are shown by the conspiracy to be warlike acts, and acts which notwithstanding the con-spiracy merely remain as political acts.

We submit, My Lord, that the test is an objective one, «ne must in every case look at the act and ask the question, whit does it reveal. If the act does not reveal the intent, then it cannot be an overt act of treason, even though it could be proved that the act was done with that intent. My Lord, the Crown has argued, and it has argued again, that any aot, whatever its nature, may be an overt act. If our contention is correct that a treasonable act is one which manifests hostile intent, then this statements carries its own refutation (?), because on our argument, the only acts which can be treasonable acts are those which manif .st hostile intent, and therefore there - they - and therefore there would have to bo excluded all acts which didn't manifest hostile intent. MR. JUSTICE 33KKEE ;

.There is something that is not clear to me. Mr. Nicholas. The ringiag of the bell in pursuance of an agreement to overthrow the state by violence, that you say is an overt act?

23733.

MR. NICHOLAS 3 If it is agreed that it should he a

1 signal for war. ME. JU^TIG^ BBKKaR i

The act in itself, the ringing of the "bell is a completely innocent act, taken by itself. But it becomes an overt act because cf the conspiracy. MR. NICHOLAS I

My Lord, it becomes an overt act in the res gesta, in th e setting. It is an overt act because it is a signal for insurrection. MR. JUS TIG., 3JKM. :

Now instead of having a conspiracy of that nature, let us assume there is a conspiracy as alleged by the Crown, and the means whereby that conspiracy, the aims of the conspiracy is tc be achieved, is the making of speeches, as alleged by the Crown. What is it that distinguishes the making of speeches from the ringing of the bell? What quality is it? MR. NICHOLAS i

My Lord, a treasonable conspiracy is a conspiracy tc commit treasonable acts, insofar as the conspiracy is for the commission of acts which are not treasonable, pro tanto, it is not a treasonable conspiracy. Whatever the intention, My Lord, behind the parties to the agreement - if they say we shall overthrow the state and we agree to that end to make speeches on the City Hall steps, My Lord, so far as

an the agreement concerns/agreement tc make speeches on

23734.

the City Hall steps, it is not a treasonable conspiracy. It is only insofar as it is an agreement to commit acts, violent warlike acts, that it is a treasonable conspiracy. And it is only insofar as acts committed in pursuance of th- conspiracy are hostile and warlike acts that they are treasonable acts. MR. JUS'I'IC-i J.JKIL̂ I. S

So if the conspiracy is one which does not include warlike acts, no matter what acts are done in pursuance or furtherance of the conspiracy, these overt acts can never amount to treasonable acts, MR. NICHOLAS s

•i-'hat is the submission. My Lord, the Crown has argued that any act will do^ And My Lord, the argument is correct to the extent that any act will do if in its setting it is deemed to be a warlike act. But it is in our submission incorrect to say that any act which in its setting is not a warlike

act, can be a treasonable act. My Lord, the Crown has referred to the definitions of van der Linde and Moorman. My Lord, v:e have made the submission before that definitions are generalisations, they are

extractions from particular cases, and in order to look at the content of the definition, one must look at the examples which are given. And if all of the examples w ich are given are examplesof hostile and warlike acts, then it is fair to say that this definition applies to hostile and warlike acts, xjid our submission is that it is quite clear from

23735«

the examples that van der Linde and Moorman and every other writer who has discussed the matter, from every example given, that they . . . . . . always to warlike acts. Then My Lord, the Grown has attempted to rely on Wentzel, but as I have pointed out to Your Lordship, His Lordship said that there must be an act which shows the existence of an hostile intent. My learned friend has attempted to rely on Leibbrandt, where Hia Lordship Mr. Justice Schreiner said "The nature of the crime of high treason is explained in the case of Rex against Jiramus, 1923 a.D. at page 73. It is commit-ted by any person who does any act, whatever its nature, with hostile intent, that is with the intent to overthrow the government or to coerce it by force11. My Lord, when my learned friend relies on that, he is taking the statement out of its context and he is giving to it a meaning which it does not bear. He is rendering himself guilty of the vice th which Mr. Justice van den Heever referred in the case of Nolutshungu against the Alliance Assurance Company, LiMited, which was reported in 1952 (4) o.a.L.R. 155, at page 161, His Lordship said s "There is a tendency t- use such dicta, that is dicta in cases, as if they were abstract statutory enactments applicable to all circumstances which can be brought within the terms. They are not. Divorced from the circumstances to which they relate and literally apply to others, they may well prove to be nonsensical propositions." My Lord, Mr. Justice Schreiner, in making this statement, purported -r or referred to the case of Rex against iirasmus. But,

23736.

Erasmus was a case which was concerned with warlike acts, armies marching, attacks on police stations, organised armed movements against the government, instigating of uprising against the government, acts of hostility against the state. Sc that Erasmus is certainly no authority for saying that any act whatever its nature can "be an overt act. But the rest of the judgment mako-s it quite clear that when Schreiner J. referred to any act, he was contemplating a forcible act. MR. JUSTICE 3-iKJLoP, s

Well, there I have a little bit of difficulty, that one passage where he says that in South .Africa -there are only two ways of getting a change in government» Did he have violence in mind there? MR. NICHQLaS s

Yes, My Lord, My Lord, His Lordship said, in South Africa - My Lord, I am dealing very briefly with this, My learned friend Mr. Kentridge is going to analyse the Judgment in detail, but His Lordship said in South Africa there is a lawful method of changing the government. No other method exists which does not rest upon the use of illegal force. Th-rj is no intermediate course between constitutional action through a ballot box and treasonable action through the illegal use of force. MR. JUSTICE D-jAiai-. ?

Yes, well now force, force has th-re

23737.

been suggested to include pressure, illegal pressure. ME. NICHOLAS s

With respect, My lord, it can't. What is it His Lordship is saying? His Lordship wasn't laying down here any rule of law. He was stating a proposition of practical politics as he saw it. He said, as a natter of fact there are two ways in which the government can be changed. The one way is by going to the polls and voting against it. The other way is by starting a war against the state. There is no other way. His Lordship meaning by that, there is no other way which can succeed. His Lordship didn't say the use of pressure, the use of strikes, the use of boycotts, the use of any other method amounts to force* His Lordship was simply saying that such methods do not bring about a change of government, because that can happen in 3inly two ways, the ballot box and the illegal use of force.

My Lord, I just make that submission in general terms. My learned friend Mr. Kentridge will make submissions on the correctness of the observation as a political proposition. But as a matter of interpretation, My Lord, His Lordship said that therj are only two ways, the one is the peaceful ballot box, and the other is the illegal use of force. And Schreiner J. continually throughout the Judgment refers tc a treasonable act as involving the use of force. And our submission is, My Lord, that there is no authority which suggests, except in the case of dicta which in our submission have been

23733.

misunderstood, there is no authority for the proposition that an act whic.i doesn't manifest force can he a treasonable act. Certainly not in South Africa or in the Roman Dutch law or the Roman law. There are some cases in England, but we submit, My Lord, that they should not be followed. MR. JUSTICE B-iKKdE :

Why as a matter of interest, why isn't it high treason if you achieve by means other than force exactly the same result - for instance if you force the government by sit down strikes or whatever it is, if you achieve exactly the same results through pressure, rather than by violence, why is the one high treason and the other not? MR. NICHOLAS s

My Lord, the law of treason has been established on authority just as the law relating to every other crime. My Lord, if a man has £10 in his pocket, there are, say two ways of getting it. The one is to go along to him and make a fraudulent representation and get the money in that way. The other is to shoot him and to take his money after murdering him. In the one case, My Lord, you have murder, in the other you have fraud, but the same end has been achieved. MR. JUSTICE BJACK-Jl j

But both are crimes. MR. NICHOLAS :

Both are crimes. But we are charged with treason, My lords.

23739.

MR. JUSTICE BoKKAiR ; As far as traason is concerned, it

is the overthrow of the state, disturbing the tranquility of the state, I think, your argument was on the last occasion that really makes this a crime. Nobody should be allowed to disturb: the tranquility of the state. And you used in this regard the example of the member of parliament being bribed. That illegal act did not disturb the tranquility of the state and therefore it is not treason. That was your argument. So if it is suggested by the same token, an act which does dis-turb the tranquility of the state should be high treason? MR. NICHOLAS I

Nc, My Lord. MR. JUoTICuJ BJIOL̂ R s

Why not? MR. NICHOLAS !

My Lord, the only thing that disturbs the tranquility of the state are forcible actions. MR. J US TIC A s

You say th.t the Crown has suggested here that mass carraigning, mass lawlessness, and I think Luthuli conceded that that may disturb the safety and s-curity of the state... MR. NICHOLAS ?

My Lord, that is a lay view. MR. JU5TICA 3i£KAR s

Be that as it may, but assuming for example that such a campaign, divorced of any violence

23740.

has the result of disturbing the tranquility of the state .... MR. NICHOLAS :

Your Lordship is using metaphor, talk of disturbing the tranquility of the state. The tranquility of an individual, My Lord, is a concept which is easier understood. But when one talks of disturbing the tranquility of the state, what one means in effect is that thorj is an arm^d attack on the state. It is really a metaphorical way of talking of an armed attack on the state, Merely to disobey the law isn't an attack on the tranquility of the state. The stat- has its apparatus and punishes that breach of the law. The state is not overthrown, the state is not disturbed, the state is not co-erced, except by force.

My lord, if it is felt that nation wide strikes with extensive boycotts are a bad thing to happen in a country, you deal with it, through the Statute Book. Parliament lays down that people who commit acts by way of protests against the law, people who have nation wide strikes in order to persudde (?) a change of' government, shall be guilty upon conviction and liab^S t) be sentenced But My Lord, as the law now stands, there is in our submission no warrant or^the>suggestion ^ ^

that sort of conduct, however damaging it may be regarded, amounts to high treason. We submit, My Lord, that there is in an overt act of treason a particular character or quality. Bohhmer says you

23741.

must plead (?) a hostile intent ex qualitate facti. You must look "it the quality of the act. And it is only if the act reveals or proves the hostile intent from its quality, from its nature orkind, that you have an overt act. ML. JUSTICL, AJAIPi s

May I just put it to you again, that example of the - I just want to got this clear. There is a conspiracy first of all to overthrow the state by violenc_, and the means agreed upon is that each conspirator will steal ten gallons of petrol and hoard it. Thereafter some armoured cars willbe stolen and the petrol will be used for that. In your submission, when the ten gallons of petrol is stolen by a particular conspirator in pursuance of the conspiracy, that is not in overt act of treason. MR. NICHOLAS 3

Yes, My Lord, that is my submission. MR. JUoIIJu HITT11 s

although it is absolutely necessary for the violence to bo committed at a later stage. MR. HIGH0L..3 s

Y^s, it hasn't Oot that quality which the law regards as a prerequisite to an act of treason. MR. JUJIIG~I S'JMrFl ;

Eut when the armoured car is stolen, th:.t is an ov.rt act? MR. NICHOLS s

Yes, My Lord, .aid My Lord, ...

23742.

MR. JUSTICE BJI^JK % Well, if the armoured car is stolen,

and thereafter the petrol, in that case the petrol .. ME. NICHOLAS :

My Lord, the petrol put into the armoured car, maybe you have got an act manifesting hostile intent, but merely to acquire petrol doesn't manifest any hostile intent. So that we submit, My Lord, that except insofar as the act alleged in Parts C, D, and E of the Indictment carry a hostile intent on their face, that is except insofar as they indicate in themselves a purpose by the accused to make an armed attack on the state, they are not overt acts of treason. And if, My Lord, that submission is accepted, then it would follow as a consequence, in order to comply with the two witness rule, that the conspiracy will have to be proved by the equivalent of two witnesses. But My Lord, if thatsubmission is rejected, and if Your Lordship holds that the acts in Parts C, U and Z of the Indictment are overt acts because they are given a special quality by the conspiracy, then we shall submit that here again, My Lord, if the conspiracy is an essential part of the act, that it will hav^ to be proved . . . . . . . . . . .

But that, My Lord, is an argument which will be developed by my learned friend Mr, Kentridge.

My Lord, I leave the law of treason, but My Lord, if Your Lordships do want to hear

23743-

argument again on the question of whether treason necessarily involves violence, auch an argument can he presented at very short notice. I am not prepared to go on with such an argument . .. ME. JUSTICE BiiiKIC.jE a

I doubt whether it really arises, because the Orown does rely on violence. ME. NICHOLAS :

A As Your Lordship pleases. Now My Lord, in Part A of the Indictment, it is alleged that the .accused did certain things with hostile intent, and thathostile intent is particularised as being an intent to subvert and overthrow the state or to disturb, impair or endanger the exis-tence or security of the state, .and it is alleged that tha accused did (a), disturb, impair and endanger the existence or security of the state or (b) did actively prepare to subvert and over-throw the state, or to disturb, impair and endanger the existence or security of the state.

We have, My Lord, previously made the submission, which is amply supported by authority, that in our law there are , . . „ 7.. . . within the crime of high treason, three groups of activity; Arding the enemy in time of war; plotting or attempting the death of the sovereign? and waging war against the state internally by making rebellion revolution or insurrection. ^nd since, My Lord, the disturbance or the impairing or the endangering of the existence of the state necessarily involvs the use of force, and since it is alleged in any

23744.

case that this was to be done by violence, this charge falls under the catagory of treason of making war against the state internally. That is the alle-gation in Part A. The Crown alleges there, as an alternative in Part A, to the making of actual revolution, it alleges that the Accused made active preparation to overthrow the state, that is they made active preparation towards revolution. And that is an allegation which recurs throughout the Indictment. There is active preparation referred to in Part A, sub-paragraph (b)$ active preparation is referred to in B(i)(b); it is referred to in Part C, in pursuance and furtherance of th« conspiracy, more particularly as part of the act of preparation for the violent overthrow, and similarly in the second part - second line of Parts D and JL.

Now it seems clear, My Lord, that the words "active preparation" comes from the definition of high treason in the second volume of Gardiner and Lan^downe, where they say that treason is committed by thosJ who impair the existence or security of the state, or attempt or actively prepare to do so. And in V/entzel's case, at page 272, Mr. Justice Eamsbottom said ; "It is clear that to attempt to hinder or endanger the state is to commit treason". We submit, My Lord, that this part of the definition of treason is open to the objection that it describes the completed crime of treason in terms of attempt or

23745.

preparation. Because the crime of treason is complete when a person commits with hostile intent an overt act of treason. As Your Lordship Mr. Justice Bekker ... ML. JUSTICE B ^ K M :

How does Mr. Justice Rams "bottom put it? MR. NICHOLAS s

He said, My Lord, that it is clear that an attempt to injure or endanger the state is to commit treason. But Your Lordship Mr. Justice Bekker said, at page 13 of the Judgment on Exception, that the crime of treason is perhaps it is an incorrect (?) crime, it is never successful in the sense that the Accused can be said to have achieved their purpose. The Accused are brought to Court bocause their endeavour failed.

The submission is, My Lord, that insofar as the Crown talks of active preparation, it is really not saying anything material to the charge. MR. JU3TIC-. RUMIEI ;

Except that In Part B(i) it says that not only did the people conspire to overthrow the state, but they also agreed to prepare... MR. NICHOLAS s

My Lord, I will come to deal with that. But I make the submission, My Lord, that there is an error, an error in law underlying the crown thinking in this indictment. It is clear that the actual consequences of the act which is committed

23746.

are immaterial. Mr. Justice Ramsbottom said in "entzel, the act need not in itself be an act which might endanger the state. It is unimportant whether the act actually disturbs or impairs or endangers the existence or security of the state. And we submit, My Lord, that consequently the use of language which is appropriate to attempt or acts of preparation in other crimes is entirely inappro-priate to the crime of treason. In treason one do=sn't say, is this an act of preparation, is this an act which amounts to an attempt. In treason one says, is this an act which manifests the intent. If it is an act which manifests the intent, it will normally be - it will almost certainly be an act of preparation or an attempt. But it must be an act that manifests the intent, and no questions are answered if it is said that it is an act which amounts to an act ££ preparation* As Mr. Justice Maasdorp said in Lhlovu's case, on

23747.

case it was argued that tnis act of writing a letter preparatory to communication of information to the

attempt ? enemy, didn't amount to an offence. (?). And His Lordship answered that by saying, even if it didn't amount to an attempt, even if it is only an act of preparation, it is neverth«;l JSS a treasonable act. But that judgment is no authority for saying that if an act can in any sense be described as an act of preparation for a revolution, it is a treasonable act and punishable as such. MR. JUjTIC-i RUID-FJ S

Th. case which you have quoted, considering the oxuestions of attempt and so on, that is not a case, is it, in which the approach to the question of an a ttempt is discussed, inter alia, on the basis that such acts of preparation that purely indicate the intent of the perpertrator, must be regarded as an attempt, because it discloses the intent. MR. NICHOLAS ;

His Lordship Mr. Justice i.Iaasdorp said one must be careful in looking t the Roman ^nd Roman Dutch authorities. Sometimes it was punishable because an act was committed which manifests an intent. But those aren't cases of attempt at all. attempt ? Because in such cases the intent alone is punished provided that thei.- is an ov.rt act.

But we submit, My Lord, on the authority of that case, that th- vocabulary of attempt and active preparation is entirely inappropriat

23748.

It is inappropriate in consilenng a question of treason. . In crimes which are not incoate crimes, the term act • • of preparation is a useful term to describe acts which are not in law regarded as amounting to an attempt. But we submit that it is not a term with a precise connotation, and it is not helpful in any other branch of legal discussion. In attempt cases the question, is whether the act proved to have been done is the commencement of the consummation of the completed crime. And in such cases the Court is c ,ncerned to ascertain whether that act is a final act of preparation, or whether it is more than that, the beginning of the consummation. And in those cases the Court is concerned with the terminal stage of the preparation. It is concerned with the shadowy borderline between preparation and attempt. It is not in any way concerned with the initial stage of preparation, where can preparation be said to begin. MR. JUoTIC-J RUMPFi s

May I just pose this question. If you do an act in pursuance of the conspiracy, then the commission of that act par excellence shows that you still have the intent which you had when you entered the conspiracy. MR. NICHOLAS :

The nature of the act as such? MR. JUSTICE KUMPFF ?

No, the commission of the act. If the act is done in pursuance of the conspiracy and it is proved to have been committed in pursuance of the

23749.

conspiracy, then th-ro is no bettor proof, is there, of your infant at tho time whon you committed the act, of the sane intent that you h.; d wh-n you entered tho conspiracy. MR. NICHOLAS s

Tho fact that ycu entorod into a conspiracy is rolcvant to show that in committing tho act you had tho particular intont. With subnission, My Lord, th:. question is not whother there is ovidenco of hostile intent elsowher-, but whether tho act is of such a quality is to reveal hostile intont. But wo submit, "Ay Lord, that it doesn't liolp in any way to say thit an act of preparation is a treasonable act unless you define tho limit of preparation, bocausc the chains (?) of human conduct are endless. In V/entzol's case it was hold thit tho writing of a letter containing information useful t tho enemy, with tho intention th it it is to be transmitted to the enemy, is an : ct of high treason. But that case doesn't afford any guile in deciding whethor tho so-called act of preparation more remote than that chargcd (?) amount to j.c1e rf high treason. For example, tho act of sitting down at tho table, the tricing up oi thy pen, tho purpose of the pen, the borrowing of the ink wita which to fill the pen, those are all in one sonsy acts of preparation. But

v • + (call ?) .. m our submission to . . . . . . . . them as acts of preparation to the committing of a treasonably act does not stamp them as being treasonable acts. Ono could tost it, My Lord. If Mrs. ".ontzel th-- night

23750.

before had saicl to a friend, tomorrow morning I an gcing to go the shop and buy a pot of ink and a writing pad and a pen, and thereafter I am going to gc into the post office and I an gcing to write a letter containing military information for transmis-sion to the German government, she has stated her intention. But our submission isnthat proof of that statement of intention and proof of those acts, would not turn the act of buying a writing pad or a pen or the ink, into treasonable acts. There must be limits, My Lords, to what acts of preparation or what acts of attempt are relevant on a charge of treason, are capable of being acts of treason. And in our submission that limit is contained in the require-ment that the act must be one of such a quality that it manifests the intention. And we submit, My Lord, that insofar as the inlictment alleges that the accused did things as acts of preparation, they h.ve not alleged that the accused c -nnitted an offence. It is only insofar as that - as the things done manifested a hostile intent that they are treasonable acts, and it is unimportant whether they w ^ n prepara-tory acts or not.

My Lord, in Part B of the Indictment, the Grown alleges that the accused conspired. And before I deal with the particular conspiracy which is alleged in Part B, I woul.l make some general submissions on the law of conspiracy, ~,nd I do so, My Lord, in the form of a number of propositions and then I shall refer to the cases and authority which in

23751.

lay submission suxi ort those propositions. I have extracted, My Lord, nine propositions.

The first proposition is that in South African law a criminal conspiracy consists in the agree-nent of two or more to commit a crime. Secondly, in order to make a person criminally responsible for conspiracy therefore, it is essential to establish that he entered into such an agreement, that is an agreement to comnil -a crine. The a,ctus reus, the overt act, is the act of agreement. There are two corrollaries to that, (a) Nothing which falls short of agreement, of the agreement to commit a crime is sufficient. Mere intention is n't enough, discussion, not resulting in a conclusive agreement is not enough. There must be an actual concurrence of mind in an agreement to do the act, to do the criminal act in question. The other corrollary, (b), is that it is not necessary that anything should be done in pursuance of the agreement. The crnspiracy is c nplete, criminal liability has been fully incurred as soon as the persons have agreed to commit the crime c ,ntemplated.

Thirdly, My Lord, it is not necessary that the agreement of all the conspirators should take place at one and the same time and it is not necessary that they should actually have met together or cckmunic *tGd with each other. If a conspiracy be already formed, and a person joined it afterwards, he is equally guilty with the original conspirators.

Fourthly, the fact of the agreement may be proved by direct evidence of an actual meeting

23752.

to concert the scheme, or of communications between the conspirators which establish an agreement. Such proof is not, however, necessary and conspiracy may be proved circumstantially, namely by inference from the acts which the parties committed. In such a case where the conspiracy is to be proved circumstan-tially, the basis for the inference is the concurrence between the acts of the alleged conspirators, or the connection between the acts of the alleged conspirators. But in such a case, where the conspiracy is to be proved by circumstantial evidence, the circumstances must be such as imperiously to call upon you to say that they could not have occurred, that the circumstances could not have occurred but in pursuance of previous conspiracy and plans between the parties. As an example of con-currence, My Lord, if all the workers in a particular factory were to stay away from work on a particular day, there is evidence from which an inference could be drawn that a strike had b.;en concerted between them. As an example of connection, if it is shown that there has been a bank robbery, that two of the accused entered the bknk, that one stood outside and gavo an alarm, that a motor car came past with two other people in it and picked up the robbers and that another shortly afterwards had stolen notes in his safe, there is the basis of an inference that all of those participants had conspired to rob the bank. But it does not follow, lly Lord, from the fact that because parties are all expressing similar views, or all - or are all r-comm-nding the samu line of conduct, or are all acting in a similar

23753.

way, that there must be a conspiracy. Because there may be a unity of object, thire may be a sameness of view, an adoption of the same course, a propounding of the same objects, without any combination at all. And unless, My Lord, there can be shown to be such a concurrence or such a connection as imperiously to call upon you to say that these things could not have occurred by in pursuance of a previous conspiracy, then there is no basis for using the material proved as if they formed part of one whole. In conspiracy you cannot take a piece here and a piece there, and put them together as a jugsaw puzzle, unless you are satisfied that all the pieces come from the same picture. You cannot &ake a piece here and a piece there and put them together and say here is the picture, ME. JUSTICE :::JA.KJP. j

I don't know where we are going to Mr. Nicholas, but it is common cause here that these four organisations worked together, and in that sense there was an agreement. ME. NICHOLAS s

Was there an agreement, the question is, to do treasonable acts? ME. JUST I C.J BJKX-̂ E 3

Ho, that is another side... MI., NICHOLAS s

rind that is the point on which Your Lordships have to be satisfied, because if you have the agreement, you have the admission of an agreement, to do certain acts of a political nature, that doesn't

23754.

carry the Crown home to proving an agreement to do treasonable acts. One cannot, My Lord, take statements here and documents there and put them together and say look at the picture that these statements form, look at the violence which you see from this speech, the opposition to the state which you see from that speech, here is a picture of a violent design against the state. You can't do that, My Lord, unlessyou are satisfied that these pieces form part of a whole. It is not enough to create a work of act, My Lord, by creating an artificial picture out of a lot of diverse materials. The picture that the Crown has to paint is a picture that existed, and Your Lordships must be satisfied that all of these pieces came out of that picture, something that really existed.

Then My Lord, 7, it is not enough that the inference of the conspiracy to commit the crime can be drawn from the facts. The facts must be such that they cannot iairly admit of any other inference being drawn from them.

8, "/here thj ill gal act is actually committed, then all that is necessary to prove the conspiracy is proof of the complicity of the Accused in that act. Take the bank robbery which I suggested to Your Lordship. Where however the illegal act is not committed, it will generally not be possible to infer from the doing of acts not themselves illegal, and - an agreement to commit the illegal act. Where there is alleged a conspiracy* to commit murder, and no violent assault or no assault is made, it will not be

23755»

possible to infer from acts falling short of an assault an agreement to commit murder. Such inference can only be drawn where such an agreement is n .cessarily to be implied from the doing of the innocent act,, Whore xhe innocent acts are such that they cannot fairly admit; of any other inference, being drawn from them. It follows that where persons are charged with conspiring to make revolution, the charge cannot be established by proof of acts falling short of revolution or warlike preparation, unless it is a necessary inference from the proved act that the Accused must have agreed to make revolution.

Point 9? My Lord, duals with evidence. On charges of conspiracy the acts and declarations of each conspirator in furtherance of the common object are _dmissible against the r.:st. h.nd it is immaterial whether the existence of the conspiracy or the partici-pation of t.ie defendants b,, proved first, though either element is nugatory without the other. All the evidence of acts ana declarations made must be looked at in order to ascertain whether t.i.,re was a conspiracy and if so, who were the conspirators. Such evidence is, however, admitted only provisionally. The fact of the conspiracy may be inferred from the concurrence of or the connexion between the acts and declarations of the alleged conspirators. But if such concurrence or connection is absent, there is not proof of the exis-tence of the conspiracy. If any act or declaration does not tend to establish s.icii concurrence or connec-tion, it is irrelevant, and evidence of it should be

23756.

excluded. The adherence to the conspiracy of a particular individual must be proved from his own acts and declarations. By showing such a concurrence or such a connection, with tie acts and declarations of the other consj. irators, that it is a necessary inference that he agreed. If in the case of any individual, whether accused or alleged co-conspirator, such c ncxarrence or connection is absent, there is no proof of his adherence to thj conspiracy and consequently all evidence of his acts and declarations must be excluded. MB. JU3IICJ KJNN&DY :

Do we want authority for these statements? MR. NICHOLAS 3

Yes, My Lord, I have a large number of authorities, I have got a liit of them, My Lord, which I am asking leave to hand in. My Lord, insofar as they are trite I don't want to burden Ycur Lordship with further authority, though there are some of these cases which I would like to read from. My Lord, I am handing in three copies of this list, and we will give the Grown one shortly.

My Lord, there is one case which I don't think has so far been referred to, and that is No. 25 on that list. It is case of Feargus O'Connor which is reported in 1843, 4 State Trials, New oeries, 935• And the charge to the jury begins at page 799, and 3is Lordship, in charging the .jury referred to the question of proof of conspiracy, and he said at pa0o 1203 "That in order to convict parties of the offence

23757.

of conspiracy, various modes may be adopted differing as far from another as the Jast is from the West." And that cannot "be illustrated better by the evidence in the present case. He says "The charge, be it always present to your mind, is not that of having attended illegal meetings or having uttered seditious speeches, or of having turned workman from their employment, or of having caused tumult, violence and outrage, and if the defendants or any of them have been guilty of any of these, they ire still l±ble to be indicted for such offences, ind their conviction or acquittal on this indictment can neither protectror hurt them. Bat the sole charge here is that they com-bined and conspired together to affectuato certain objects. If they did so, from that moment the crime here charged is complete, evan though not a single man has been turned out or a single outrage committed. On the other hand, if there was a conspiracy and some who took part in the proceedings resulting from it were ignorant of the conspiracy, and the objects of it, they are no more guilty of the charge contained m this indictment than those wao took no : art in it, not having entered into the combination or agreement. That being so, I say the difficulty at the very outset likely to present itself to the minds of those considering subjects of this sort for the first time is this5 If the crime consists in the agreement to do certain unlawful acts, how are v«/e to find that any such agreement has been entered into? In ordinary transactions of life, when parties enter into an

23758.

agreement, they manifest it by reducing it to writing or "by making it verbally among themselves, and the evidence of the writing or tae person who heard the agreement made, will be sufficient to substantiate it. But in order to convict persons of aconspiracy, must we have the same sort of evidence? must we find the parties reducing to writing what the;/ conspired to do? Or must we have the evidence of somebody who is present and heard them when they were entering into the contract? Certainly not. lerhaps the most satisfactory evidence would be that of persons who were present when the individuals charged with the crime entered into the agreement, or when they did that it clearfty amounted to such an agreement, but this is by no means necessary. Then as to the .vicence, you may convict parties of conspiring together to effect a certain purpose, although you may have no 'writing to show such combination or agreement, and although you may not have the evidence of any party who was present n̂d h • rd such an agree-ment when it was entered into. You may infer that there wus such an agreement from the .cts which the parties committed. In the reply of the attorney-General yesterday he was alluding in some degree to this view of the case. I think his language went beyond what I have stated to you the law would want. Probably he m-ant the same txing that I did, but I tiiink the expression made use of was calculated to mislead you. He stated in substance, these are not ais exact words, that if these parties were going about lecturing and inciting parties to all those

23759.

acts referred tc in the charge, and if they were all recommending the same line of conduct, that that would amount to a conspiracy. The only qualification I put on that in laying down the law is this, that that would not amount to a conspiracy at all. It might "be evidence from which you might infer a previous combination. It might be evidence leading more or less forcibly to that concluding, according to all the surrounding cir-cumstances. Now for instance, suppose there had been a very great desire to obtain a, rise of wages and a very great desire to obtain suppose we are taking that state of affairs which has been represented as having existed, . . . . . . . people among the turnouts at all the different towns and making this sort of lecturing and speechifying, and inciting? exciting the people to acts of violence and tc insist upon having the charter, if that leads you to the conclusion that there has bejn - I do n ot say that it is at all necessary that thera should be a meeting, an arrangement by any sort of machinery that they should do this, then not only would they be guilty of the acts committed at those m.etings, but it might be proof that there was such a combination. Cn the other hand it might be evidence that there was no such combina-tion at all. The circumstances of unity of object, the sameness of views, would explain the fact that they .are taking the same course and propounding the same objects. It might show that no one knew at all what the other one was doing. The nearer the parties are, the more they are in th. habit of associating,

23760.

tho more probable their previous combination. The more distant tho parties are and the less their intercourse with each other, the less probable is it that any previous combination occurred."

Then, My Lord, the other authorities support the submissions that I have made in those nine points, and I would My Lord, only rofer to the authori-ties relating to the seventh proposition. That is that it is not enough that the inference of conspiracy can be drawn from tho facts. The facts must be such that they cannot fairly admit of any other inference being drawn from them. The authorities directly in point on that proposition are number 6, 15 and 20. No. 6 is a South African case, of The Queen against S. which was reported in 1959? the decision of the Cape Court, - I read from the Judgment of Mr. Justice van Vincent (?), at page 683. And he says The question of the degree of proof required in these matters is shortly set out in a Judgment delivered by my Brother Bloch in this Court on the 13th June, 1958, in the matter of R. V. Rootha (?) and Jane Lewis. In that Judgment it w^s stated as follows ?'Conspiracy to' commit a crime requires an agreement on the part of two or more accused to commit the criminal act. See Solomon ana Dhlamini. Mere intention is insufficient. Th^re must be an actual concurrence of mind in an agreement to do the .j.ct in question. Such concurrence need not necessarily be by way of explicit spoken word, for the agreement to commit a crime, as any other agreement, can be arrived at tacitly and by conduct. Where however

23761.

the agreement sought to be inferred solely from the conduct of the alleged conspirators, such inference must in the cardinal rules of logic enumerated in R. V. Blom (?) be consistent with all the proved facts, and the proved facts in turn must be such that they exclude every reasonable inference from them, save the one sought to be drawn." And then His Lordship said "On the facts of this case..." - into which I don't want to go at this stage "The first difficulty which is in the way of the Crown in che regard (?) to the drawing of such an inference, is that on the facts established on^ of the reasonably possible inferences which can be drawn is that the appellants, one or other

women of the three of them, intended to commit some indecent act, whereas under th~ statutory provision under which the accused are being convicted, the conspiracy there requires to be a conspiracy to have unlawful carnal intercourse, not merely a conspiracy to perform some indecent act."

Then No. 15 is the case of Henry Hunt. I road from page 438, the charge of BajlJy J. He said "Prom the subject of conspiracy, the defendants are not liable to be iound guilty, though they are acting to the same end, unless you are of the opinion that their acting to the same end is in pursuance of the same design. It may be that on an occasion of this kind if twenty seditious persons were to go to the meeting, each intending to sow Sedition at that meeting, yet if each intended to sow that Sedition from the motives of his own mind, and not in pursuance of

Collection: 1956 Treason Trial Collection number: AD1812

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