r

-1145- /

further questions put with reference to -these and other phrases appearing in Parts B, C and D of the indictment. The aforegoing instances will suffice to follow the con.plaint by the defence and the argument presented by the Crown in justification of its attitude that it was not obliged to supply these particulars.

Mr. Trengove stated that questions as to who was to take steps or when such steps were to "be taken, for the establishment of a communist state, - in form be it of a"Peoples' Republic" or "Democracy" or otherwise, or as to what was meant by 'semi-military', 'extra-Parlia-montary, unconstitutional or illegal1 ana so on, were in so far as Part 3 of the indictment is concerned, irrelevant to the case the accused are called upon to meet. It was the fact of an agreement to overthrow the .fatatc which was important. In so far as Part B(4) of the indictnent sets out the agreed means to be employed, the important feature from the accuseds' point of view relates to the fact of the agreement, and not to what the terras meant or who, how or when the terms were to be implemented. If, in ad-dition to the agreement giving rise to the conspiracy, the Crown succeeded in proving the necessary hostile intent, the offence in so far as Part B is concerned, would be com-plete against the accused - irrespective of any question as to when or by whom a communist state was to be established and in what manner or form this was to take place; and irre-spective also, of any question whether any one of the con-spirators acted outside the terms agreed upon, or indeed acted at all. In any event, in so far as Part B(4) was concerned, counsel /1146.

-1146- /

corxcerned, counsol contended that the Crown set out the terms of an agreemant - which it was called upon to prove; but it did not presently fall within the province of the Crown to construe the terns of the agreement. The Request for Further Particulars invited the Crown to interpret the terns of, or phrases appearing in an agreement which the Crown alleges the accused entered into; the Crown, conclu-ded counsel, was at liberty to decline the invitation.

n

We have given duo consideration to the opposing contentions and have been unable to discover any weakness which might be said to lurk in the contention ad-vanced by the Crown with reference tc part B of the indict-ment. The case therein presented against the accused is that they became members of a conspiracy and that they agreed as to the means whereby the object were to be achieved. The contents of Part B(4) purport to set out the terms of the agreement and we are of the view that the Crown cannot presently be forced to construe the terns thereof or to furnish details as to when or how, for example, steps were to be taken and by whom, for the achievement of the matters contemplated under the various sub-paragraphs.

In so far as Parts C and D are concerned, Mr. Trongove met the defence contention in the following fashion:-

In each and every case whore the defence required the Particulars and complained that in the absence thereof the accused were at a loss to grasp the meaning of

and words/ phrases, /1147.

Jk

r

-1147- /

words and phrases, the Court was referred to a speech made by one or other of the accused, or a document appearing in Schedules C and D respectively, wherein the words or phrases occurred and which were employed "by an accused who is said to have made this speech or written the document. In these circumstances, Mr. Trengove said, the complaint was unfounded; the accused concerned was the author of the phrase and must have known what he had in mind,when employing the phrase, and also the time, manner and means whereby he hoped to put into practice what ho advocated.

Once again, so it seems to us, the ac-cused are able to learn from annexures C and D the contents of the speeches alleged to have been made and the documents on which the Crown relies for purposes of Parts C and D of the indictment. The meaning of phrases employed therein, if they did make such speeches and wrote such documents, would be facts peculiarly within their own knowledge -something which in these circumstances the Crown is not obliged to furnish in order to enable an accused to become apprised of the case he has to meet and to prepare for his defence.

We have, however, seen fit to order Particulars in respect of Parts C and D compelling the Crewn to point to the respective speeches or documents on the strength of which it is said for example that 'discon-tent', 'unrest' and so forth were intended to be created. That much the accused are entitled to, and for this reason the Particulars requested in paragraphs 13(a), 14, 15(a) 16(a), (b) /1148.

L • . _ _

\

-1148- /

16(a), (b), (c), 17, 18(a), 21(a), 22, 23(a), (b), (c), 25 and 26(a) of the Request for Further Particulars were ordered. Save as above, the contention based on paragraph 8 of the Notice was dismissed.

The next question which falls to be con-sidered, is the attack on the indictment based on grounds of Eds joinder, as outlined in paragraphs 1(b), 3, 5 and 6 of the Notice of Ejfeption and Application to Quash. In order to follow Mr. Mais\qfc ' contention on this branch of the enquiry, it becomes necessary to consider the frame-work of the indictment taken by itself, and thereafter, to do so in the light of the further particulars supplied by the Crown.

For present purposes it suffices to state that the indictment as originally prepared and served on the accused, charges each accused with the # crime ef high treason - it being alleged, in Part A thereof, that they

"..the said accused, acting in con-cert anci with common purpose...." committed "...hostile and overt acts against the tate...namely the hostile and overt acts laid against him c,r her in Parts B, C,

/ /y D and E of this asdictment,"

These parts may conveniently be summarised and sub-divided as follows:

Part 13.. /1149.

-1149- /

Part B: - All the accused joined in a conspiracy to overthrow and destroy the^tate.

It is then said that in 'pursuance cf the said conspiracy, or alternatively, acting in concert and with common pur-pose1, they, the said accused, according to

Part C: - made speeches and addressed gatherings.

Part D: - printed "brochures and pamphlets. Part E: - attended a certain meeting at Kliptown on the

25th and 26th June, 1955.

The indictment <_;s framed is, with re-ference to the criminal liability of the accused, capable of only one meaning. The allegations that they 'conspi-red' together and coim.itted the overt acts set cut in

I Parts C, D and E 'in furtherance' of the conspiracy or while 'acting in concert and with common purpose' render each one criminally liable for the overt acts of another; furthermore, the allegations would render a joinder of the accused permissible.

If this situation had been left undis-turbed, lar. Kais o/b said, he would have no complaint or criticism tc offer. But, so he argued, different consi-derations arose as a result of what was revealed by the further particulars - from which it emerged that the Crown was not in a position to prove the exact date on which any of the accused entered the conspiracy - save that they had all become members thereof 'by not later than the 25th or 26th of June, 1955' and, of signal im-portance to the question presently under consideration, that the Crown /1150.

-1150- /

that the Cren did not allege that

"each of the accused participated in the conspiracy for the whole period set forth in the indictment"

(see paragraphs 2(a) and c(ii) of the Further Particulars) It is common cause that the respective overt acts laid against each of the accused in Parts C and D of the indict-ment, are many and occur on different datesj in some, if not most of the cases, subsequent to the commencement of the conspiratorial period alleged in the indictment -namely October 1952 - and that the overt acts occurred at any number uf ceni^/s in the Union.

In these circumstances, according to counsel, to take but the case of one accused for example, he is joined in this indictment with other persons who may, by virtue of the commission of prior overt acts, already have completed the offences of high treason, and, at a time when such an individual accused was unaware of, or had not yet entered the conspiracy. Yet, on the framework of the indictment, he is not only to be crimi-nally liable for those prior offences of his co-accused, but he is brought to Court with them under one indictment, admittedly to stand trial for his own offence, - but never-theless, for prior offences committed by other people in which he took no part and for which he is not liable.

The correctness of this submission is beyond question? its force is sel^apparent. That there is in general no place for the doctrine of liability by •ratification.' ./1150.

-1151- /

'ratification' in criminal law, was settled as long ago as 1925 (cf R. vs Kluui, 1925 A.L. 131 at p. 135) That the commission of the overt act - the so-called 'manifestation' cf the hostile intent - constitutes and completes the offence of High Treason, is common cause; so too is it accepted that there are, or can "be, as many acts of high treason as there are overt acts; and, that each may constitute a separate offence in it-self, susceptible of forming the subject matter of a sepa-rate count.

The question now arises whether the Grown, in the circumstances mentioned, is precluded from join ing the 91 accused in one indictment. The general rule is, of course,

"that two or more persons may be joined in the same indictment in respect cf a criminal charge ari-sing out of the same set of facts, but they cannot be joined for even the same class of offence if it arises, in each case, out of different facts and forms a diffe-rent transaction." (per INITES C.J. in Wing & Ors. vs Rex, 1905 T.S. 767)

Mr. MaisVefs, in support of his contention that the present joinder was improper and irregular, drew attention to the following remarks by RAMSBOTTOM J. in David & Ors. vs van Niekerk and Ano /1152.

M

-1152- /

Niekerk & Anu., 1958(3) S.A.j tT. 62 at p. 90:-

" it is not unknown for the Crown to join two or more persons in one indictment which contains several counts while not joining all the accused in all the counts. While this practice is sometimes conve-nient and may even be advantageous to the accused, there is nothing in the Crminal Procedure Act that authorises it and on the authority of Rex vs Hoka.ya , 1930 TP. D. 363 , the practice is irregmlar. If the accused do not object and there is no prejudice, the irregularity may not be fatal but it still is an irregularity. It sometimes happens that the Crown joins two or more persons in a charge which contains several counts and charges all of them on all the counts, although it is known that some of them can-not be proved guilty on some of the counts. That practice avoids a separation of trials but, as Gardi-ner and Lansdown point out, it is improper. (See 6th ed. Vol. 1 at page 291) In the present case the several offences were not part of one transaction; ifr they were committed..../1153.

-1153- /

"committed, each was a distinct and separate offence."

In the result the Court ordered a separation of trials.

These observations, but for the deci-sion in R. vs Heyne and Others, 1956(3) S.AJi^f. 65^would have compelled a result upholding the correctness of the contention - that the present accused were mis joined.

He(yne 's case, however, SCHRSINER J. A. is reported as follows:-

"Practical considerations must decide whether it is permissible to charge a person with a course of conduct

when, what he has done, consists not of an unbroken spell of uniform behaviour, ....but a series of closely following similar acts... Those considerations require that in a proper case, a planned course of fraudulent conduct may be charged as a single crime of fraud even if it might be possible to analyse it into a series of separate frauds.. It is true that the period was a very long one and it appeared from the Crown case that not all the accused persons could have been associated with the course of conduct over the whole period of its existence. But that was not a sufficient reason for holding /1154.

-1154- /

"holding that they could not he charged upon a fraudulent course of conduct, if they acted in con-cert tc make a series of false re-presentations. "

The learned Judge then proceeded to formulate this rule:-

"Where the participation of several collaborators have not covered pre-cisely the same period, particulars may be necessary to inform them of the extent of their alleged parti-cipation, but the Crown would not thereby be precluded from charging them together on a course of con-duct basis. In each case it is necessary to decide whether there has been prejudice to the accused: in the present case there has been none."

The Crown contended that the present indictment brought all the accused to Court on one charge of high treason, admittedly based on a series of overt acts which, -although they were sub-divided for the sake of convenience, - nevertheless constituted a 'course of conduct' direoted towards the achievement, and in pur-suance of but one criminal design, namely to overthrow the State. Mr. Maisjels, however, said that that was not the case /1155.

-1155- /

the case. In seeking to meet the Crown's contention, he emphasised the feature that the commission of each overt act (and there were many laid at the door of the accused) could, and he said did in fact, constitute a separate count of high treason; and any one of the accused, 'con-spiracy or no conspiracy', 'concert and common purpose' or not, stood to "be convicted, on the framework of this indictment, for his own overt act or acts. The indictment> properly analysed and construed, he concluded, brought not a 'single' char&g of high treason, but in reality as many counts thereof as there was overt acts laid against each one of the accused.

It is, of course, quite correct to say that the indictment may give rise to the result outlined by counsel, namely that an accused could be convicted, subject to the necessary ingredients of the crime being proved, even if the Crown should fail to prove a conspiracy or that the accused acted in concert and with common pur-pose. But this result does not necessarily destroy the correctness of the claim made by the Crown, if they were in fact charged on a 'course of conduct' basis. In such event, even if the conduct might be analysed into a series of separate counts of high treason, the result would, in terms of Heyne's case, be irrelevant. It would seem to beg the question.

Turning now to the present indictment, it in form, in Part A, charges each of the crime of high treason, alleging that they 'acted in concert and with common purpose 1........ ./1156.

-1156- /

common purpose1 - a phrase which, in our view, can only be equated by 'some planned scheme.' In Part B(l) the Crown in fact alleges that there was such a scheme afoot -i.e. the conspiracy, and it sets out in paragraph 4(2) to (4) the means whereby the criminal design was to be achieved. It claims in Parts C, D, E and F of the indictment that all the individual overt acts laid against the accused, were so performed by them in their endeavour to achieve their ultimate goal. These overt acts are similar at least in this sense, that they consist in the making of speeches and in the creation of propagandist literature alleged to be in favour of and propounding a different form of state. It is difficult, in our view, to accept the correctness of an argument that the Crown has not averred or set up a 'planned course of conduct' on the part of the accused/ aatd——r-oa»-in l-aspcct of which, Ixi form at least, (Part A of the indictment), it charges the accused with the com-mission of a single crime of high treason, based on a series of overt acts, constituting, in terms of Parts C, D and E, the course cf conduct. If this conclusion is correct, then the fact that the result visualised by Mr. Maisjfq/b may be correct, matters not. Nor would the fact that the ac-cused, as collaborators, have not covered the same period; this feature in itself does not preclude the Crown from charging them in the circumstances, jointly, in one in-dictment.

SCHREINER J.A. states at pages 615/6 that such persons may be so 'charged' - a feature which is once more repeated at page 626 in the following language:-

"...When there is /1157.

-1157- /

it When there is a series of acts done in pursuance of one criminal design, the law recognises the practical necessity of allowing the Crown, with due regard to what

# is fair to the accused, to charge. the series as a criminal course of of conduct, that is, as a single crime."

That a series of treasonable overt acts is susceptible of performance in pursuance of one criminal design, e.g. to

by I.Ir. Majsle/s in his endeavour to avoid the application of the rule in Heyne's case, crystalised itself into the following:

In Heyne's case, so it was said, the indictment alleged that the accused all participated in the scheme for the whole of the duration of the fraudulent scheme; accordingly no objection to the joinder of the accused was or could be made. It only became clear during the course of the Crown case that the accused had partici-pated in the scheme at different times and some for only portion of the period. In the instant case, so the ar-gument continued, the Further Particulars reveal that the accused did not participate in the scheme for the full pe-riod thereof, which enables them to object, and for which reason they /1158.

overthrow the Estate, is a proposition which rent.

The next point of distinction claimed

-1158- /

reason they do in fact lodge an objection to the joinder.

But the rule in Heyne's case meets this contention. We do not deem it necessary to refer once more to the dicta of SCHREINER J.A. which have been fully set out above, and from which it appears that collaborators participating in a course of criminal conduct may be joined in one indictment, even if they participated therein at different times.

It now becomes necessary to consider the next line of attack employed by Mr. Maislejb in his en-deavour to avoid the application of this rule. He conten-ded that a joinder of such persons ij& only permissible if the accused are properly informed of the extent of their participation in the criminal course of conduct and pro-vided, furthermore, that they suffer no additional pre-judice in any shape or form. In this connection, he said, that the accused, firstly, were not so advised of their participation therein, and secondly, that the joinder in the present circumstances was in any event highly pre-judicial to them. It is convenient to deal with both these contentions immediately.

The question whether an accused has been sufficiently advised of the 'extent' of his participation in a criminal course of conduct, seems to us to be one of degree, depending naturally on the circumstances of each case but which ultimately reduces itself into one of fair-ness to the accused. The problem is, subject to what fol-lows, essentially /1159.

-1159- / l

lows, essentially germane to events preceding the 25th and 26th of June, 1955 - being the dates selected by the Crown after which it is said all the accused had become and were members of the conspiracy - a situation which, if true, would of course entitle the Crown to join all concerned for overt acts committed thereafter. It is ac-cordingly with reference to the preceding period and events that the question becomes of greater importance. Leaving aside for the moment the aspect of lack of particularity concerning the alleged 'criminality' of the course of conduct, the Crown has in Schedules C and D set out the overt acts of each of the accused on which it relies for Parts C and D of the indictment. The dates on which and places where these were performed, as also the contents of the speeches and documents are furnished. With reference to Part B of the indictment, it has supplied the accused' with the 'Summary of Facts' on which it relies to prove the existence of the conspiracy and the individual accused^' adherence to it - and in so far as Part E is concerned, it has told the accused who attended and who did not attend the meetings referred to.

In the result it seems to us that the present is not a case where the Crown has simply made no effort of advising the accused of the extent of their par-ticipation in the alleged course of conduct. In so far as it has furnished the accused with information on which it will seek to rely to prove the conspiracy, the accuseds' adherence to it and of the individual overt acts, said to have been performed by each of the accused, it cannot be said /1160.

-1160- /

be said that the Crown has not complied with its duty. Eut, in our opinion, >% is not enough; its duty, in the circumstances of this case does not end there, but, on the contrary, goes even further. In being obliged to inform the accused of the extent of their participation in the alleged course of conduct, the requirement of 'fairness' to the accused rendeis it imperative, in the circumstances of this case, that each accused should be informed, in addition to the information which has already been furnished, of the speech or document (or portion thereof) on which the Crown relies for any particular allegation it has seen fit to prefer against the accused in the indictment. In our view of the matter a joinder of persons on the basis of participation in 'a course of conduct' not for the same periods, constitutes a depar-ture from the usual or general rule; such a departure is only to be permitted by the Court if the Crown is made to comply with its duties in the strict sense of the word. In addition to the foregoing, a further difficulty con-fronts the Crown; this relates back to the fact that on the framework of the indictment each accused is made liable for the acts of his co-accused. Mr. Trengove, during the course of his argument, stated however, that the Crown did not seek to hold an accused liable for acts committed

by his co-accused before he joined the conspiracy. For this reason we have seen fit to order the Crown to inform each of the accused in respect of which overt act committed by a co-accused_he to be Jia-ld--liable T and, unless the accused are in addition furnished with the remaining Further Particulars we have seen fit to order, we are satisfied that....../1161.

-1161- /

satisfied that it cannot fairly be said that the Crown has complied with its duties. We have decided to afford the Crown an opportunity of furnishing these particulars rather than to order a dismissal of the indictment which, for reasons to be mentioned later on, would in our view have operated to the prejudice and inconvenience of the accused.

Mr. Mais ejs next canvassed the question of further prejudice said to have arisen as a result of the joinder of all the accused under the indictment - a feature which, in the circumstances of the case, urged, taken by itself, suffices to exclude the operation of the rule formulated in Heyne's case. We propose discussing each of the grounds advanced in this connection.

It was said by counsel that it would be 'oppresive and prejudicial to the accused to allow this trial to continue on a course of conduct basis' for the following reasons

It was a matter of experience that it is extremely difficult in a case where there are such a large number of accused for the Court and counsel to dis-entangle the acts for which each accused is fairly to be held responsible. The 'course of conduct' relied on by the Crown extends over a period of four years - 'the acts are many' and the documents are 'mountainous' - resulting in 'a collosal and unfair burden'. This approach is per-haps not without substance, but the fact that the Court and counsel might find /1162.

-1162- /

counsel might find the task onerous in the extreme is one thing; it cannot, however, necessarily "be equated with 'prejudice' to the accused. The Court and counsel are presumed to "be able to do justice to their task and the matter must be approached from this point of view,and if, therefore, the Crown decides that it must bring the accused to Court on the present basis, the position must be so accepted.

It was then said that although at the present stage of the proceedings a joint defence is being presented, the position might take a different course du-ring the trial. A conflict of interest might arise, neces-satating separate representation for some of the accused. This possibility which mighty of course^ transmute itself into reality in future, remains at present nothing more than a 'possibility' - a feature which, in itself, is equally irrelevant - arW could adequately be dealt with once it assumes less nebulous proportions.

Counsel next said that the trial might literally go on for years. A person who joined the alleged conspiracy, say in 1955, would be compelled to attend the trial for that length of time and be made to listen to evidence concerning prior overt acts and other matters in which he did not share and for which he could not be held responsible. These persons were removed from their homes situate in different provinces of the Union, some considerable time ago and no reason existed then or exists now why the the attorneys-general of the respective provin-ces could not charge them with the alleged acts of high treason /ll63.

-1163- /

treason for which they are now before this Court. Now whilst the convenience of an accused person is, of course, to "be considered and cannot simply be brushed aside, the fact of the matter is that the attorney-general (and it is his responsibility) has S^en fit to bring the accused to Court in this fashion. We are not presently prepared to interfere with his right to have done so, but should it transpire at any stage of the proceedings that any one of the accused will suffer prejudice or undue hardship or inconvenience solely by virtue of the fact of a joint trial, the possibility of a separation of trials being ordered is, of course, not excluded.

Even if we had come to the conclusion that the joinder of the accused was improper in relation to events preceding the 25th and 26th of June, 1955, it is common cause that on the present indictment, a joinder in respect of events said to have occurred thereafter, ""WuTdhave been permissible. In these circumstances an, order directing an amendment confining the indictment to those events would have been a suitable order; moreover, any order avoiding a dismissal of,., the indictment would presently seem to serve the best interests of the accused. An order simply quashing the indictment^ would have com-pelled the accused to await the presentation of a fresh indictment, subjecting them to yet further delay before the end and determination of this case is reached. In these circumstances accordingly we have deemed it expedi-ent not to quash the indictment but to direct the Crown to supply the Further Particulars as ordered. Should it refuse to do /1164.

-1164- /

refuse to do so or not amend the indictment in a manner avoiding embarrassment to the defence, it is proper that the accused should then "be afforded an opportunity of re-newing this application. We have accordingly so ordered.

In dismissing the question of misjoin-der we have confined ourselves in the main to Part A, B, C, D and E of the Main Charge. Subject to the possible consideration, namely that it might be said that the 'conduct' of the accused mentioned in Part P of the indict-ment might not be 'similar' to the conduct of the accused as set out in Parts C, D and E, a matter which was not argued, the same consideration as above would apply in respect of Part P of the indictment as also the Second Alternative Charge.

We next turn to consider paragraph 10 of the Notice of Exception and Application to Quash, which reads as follows:-

"10(a) There are more counts than one in the Main Charge and such counts are not numbered consecutively;

(b) In the premises, the Main Charge is defective on the face of it in that in does not comply with the provisions of section 312(2) of Act No. 56 of 1955 and is calcu-lated to prejudice or embarrass the accused /1165.

-1165- /

the accused in the conduct of their defence."

In support of the above Mr. Mais\< 5 covered the same ground and in essence advanced the same contentions which were presented on the objection of misjoinder. Some additio-nal aspects were, however, mentioned by him which we will discuss later on. In the main the argumen amounted

Ai-to this: each overt act laid *•© tfte door of an accused constituted a separate count of high treason, on which he stood to be convicted, whether proof in support of the alleged conspiracy or in support of the alleged concert and common purpose was forthcoming or not. That being the position, section 312(2) of the Act, which provides that when there are more counts than one in a charge, they shall be numbered consecutively and each count may be treated as a separate charge, was not complied with and that feature rendered the indictment, defective and improper.

In our view no useful purpose will be served by reviewing our considerations relevant to the question of misjoinder; these considerations apply in our view, with equal force to the argument presently before us.

The additional aspects canvassed by Mr. Mais\qfs related to a further or a different form of prejudice which, he said, arose as a result of this charge.

The accused, he said, were deprived of the right of inviting the Court to consider certain of the speeches /1166.

-1166- /

the speeches and to contend that these did not consti-tute the crime of high treason, and so to secure an exi-cion thereof from the indictment - a result which might not only have had a material effect on the length of the case, hut also on the complicity of the accused.

It is in our opinion undesirable at this stage to deal with this submission, for the main reason that the Crown has been orfdered to supply further particulars which, if given, will bear directly on the issue of the speeches. The Crown's reply may or may not remove the hurdle of prejudice which Mr. Mais\ejb contends has been placed in the accuseds' path, and the defence is free to act accordingly.

Mr. Mais\e|s next argued that Part C of the indictment consists of what he termed a "mass of iwMu

un*»endos because it purports to set out in many instances the effect of var and not

ferent times by different people at different places, -and even more important, speeches addressed to different audiences. This complaint is not without justification. Although the speeches and resolutions and documents con-cerning an individual accused are to be found by him or by the other accused in Schedules C and D, the Crown has failed to advise the accused fron which particular document

/Vvu or speech it seeks to draw the unj*ndo(s) or allegation(s) made against him in Parts C and D of the indictment. For this reason, amongst others, we have seen fit to order the Crown to supply the Further Particulars mentioned in the Order /1167.

necessarily the adopted at dif-

-1167- /

the order.

The next issue to be considered is Mr. Mais^^S's point that two of the accused have been con-victed under the Suppression of Communism Act in respect of two of the speeches appearing in schedule C and the form of the indictment prevented them from pleading autrefois convicts<

With refersnce to the position which these two accused find themselves, the Crown has alleged that a number of other speeches were also made by them -and, contended Mr. Trengove, no reason exist why they can-not tender such a plea in respect of the first two speeches If our conclusion is correct that the Crown is entitled to bring the charge of High Treason on the alleged course of conduct basis, there seems to be no reason why the accused could not tender such a plea in respect of one of the acts constituting such conduct, leaving the Crown free to proceed on the remaining acts. If this course is not permissible, then it would seem that the rule in Heyne's case could never be taken advantage of by the Crown where one of may acts - even though the remaining acts might suffice to establish a course of conduct, was the subject matter of a previous charge against the accused. No good reason seems to exist why these two accused could not ten-der the plea in respect of the speeches referred to when the matter can be considered on its merits.

Save that we have ordered Further Par-ticulars. /1168.

-1168- /

Particulars as set out in the order of this Court, no other order is made with reference to paragraph 10 of this Notice.

We now pass to the First Alternative Charge, Paragraph 1 of which reads

"1. During the period and the places mentioned in the main charge, the said accused, acting in concert and with common purpose, did wrongful-ly and unlawfully "by means of at-tending meetings and by means of making and/or associating themsel-ves with speeches and resolutions made at such meetings (particulars whereof are set out in Schedule C to the main charge) and by means of writing or cr.vsiagto "be written, and/or printing or causing to be printed, and/or publishing or causing to be published, and/or distributing or causing to be dis-tributing certain books, brochures, pamphlets and other documents (par-ticulars whereof are set out in Schedule D to the Main charge) in their individual capacities and/or as members of one or more of the associations of persons and/or cor-porate bodies mentioned in Sche-dule A /H69.

-1169- /

Schedule A to the main charge, advocate, advise, defend or encou-rage : -

Certain acts (as set out in para-graph 2 below) which were calcu-lated to further the achievement of an object of communism (i.e. 'Communism' as defined in the first paragraph of section l(l)(ii) of Act No. 44 of 1950, as amended), namely, the establishment within the Union of a Communist State in the form of a so-called Peoples' Democracy or Peoples' Republic or some related form of state flowing from an implementation of or foun-ded on the doctrine of Marxian Socialism (as defined in the first paragraph of section l(l)(ii) of Act 44 of 1950, as amended); and/or

the achievement of an object of Communism (as defined by section l(l)(ii)(b) of Act 44 of 1950, as amended), namely, a scheme which aimed at bringing about cer-tain political, industrial, social or economic changes within the Union, to wit ./1170.

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Union, to wit, such political, industrial, social and economic changes as are envisaged by the Freedom Charter (a copy of which appears in Schedule E to the main charge), by means which included the promotion of disturbance or disorder (as set out in paragraph 3 below); and/or

(c) certain acts (as set out in para-graph 2 below) which acts or omis-sions were calculated to further the achievement of an object of Communism (as defined by section 1(1)(ii)(b) of Act 44 of 1950, as amended), a scheme which aimed at bringing about certain politi-cal, industrial, social or econo-mic changes within the Union, to wit, such political, industrial, social and economic changes as are envisaged by the said Freedom Char-ter by means which included the promotion of disturbance or dis-order (as set out in paragraph 3 below).

The acts are set out in paragraph 2, and paragraph 3 details the aims of the scheme referred to in paragraph^ /1171.

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to in paragraphs 1(h) and (c) above, and the means where-by they were to be achieved.

It is unnecessary to refer in any fur-ther details to these particulars of the charge, as we came to the conclusion that this aspect of the case fell to be decided within the narrow compass of the meaning of the words 'advocate*, fedvise', 'defend' or 'encourage' in relation to the framework of the indictment.

A Request for Further Particulars was made in these terms:-

"3. AD PARAGRAPH 1(b)

(b) The Prosecutor is required to spe-cify which of the speeches, reso-lutions and documents set out in Schedule C and D to the main charge are alleged to have had the effect of advocating, advising, defending or encouraging the achievement of the object set out in para-graph 1(b).

and the amended reply thereto reads:-

"3. AD PARAGRAPH 1(b)

(b) All the speeches, resolutions and documents set out in Schedules C and D /1172.

-1172- /

and D taken together, but exclu-ding such documents in respect whereof Schedule D lays overt acts of possession merely."

Schedule D sets out in 204 pages of print, extracts from, or summaries of, a large number of documents of various categories, and the alleged connection of the accused therewith. It gives the name and number of each accused, the date (if any) and description of the document, the nature of the overt act committed in rela-tion to the relevant document, and some details of the document. To give an example for the sake of clarity, the Schedule sets forth that P. Adams, accused no. 1, caused to be printed and/or caused to be distributed (and we shall say nothing at this stage of what was called the 'bastard conjunction' in Bonitto vs Puerst Bros.Z-1944/A.C, 75 at p. 82, and to which Van den Heever J. (as he then was) referred in somewhat scathing terms in Ex Parte McDuling, 1944 O.P.D. at p. 189), a printed pamphlet en-titled 'We shall not Move' dated 31/1/55, and an extract therefrom is set out. There were many instances in Sche-dule D where the sole overt act charged was 'the posses-sion for, purposes of distributing and/or disseminating the contents thereof' or 'the possession for the purpose of disseminating the contents thereof'. There were no overt acts laid in mere possession and no doubt exists that the Crown in its reply to the Request for Further Particulars meant to exclude all documents possessed with one or the other of the intents stipulated.

Thus, /1173.

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Thus, in its reply, the Crown made clear its attitude towards two things - it abandoned its case in so far as mere possession by the accused of documents was concerned, and it took up its stand (an adamant one, as Mr. Hoexter, for the Crown, demonstrated in his reply to Mr. Fischer), that all the speeches, resolutions and documents taken together had the effect of advocating, advising defending or encouraging the achievement of the given object.

The exception (we shall call it that for the sake of brevity) on this point reads:-

"10. The allegation in paragraph 1(b) of the First Alt^iative Charge, read with paragraph 3(b) of the Further Particulars thereto, that all the speeches, resolutions and documents set out in Schedules C and D 'read as a whole' had the effect of advocating, advising, defending or encouraging the achieve-ment of the objects referred to in paragraph 1(b) of the First Alter-native Charge

(a) discloses no offence cognizable by the Court;

(b) is inconsistent with and contra-dictory of paragraph 1 of the First Alternative /1174.

-1174- /

Alternative Charge in which refe-rence is made to some only of the documents in Schedule D; and

(c) is calculated to prejudice or em-barrass the Accused in the conduct of their defence."

It was the Crown's inflexible attitude on the totality of the documents and speeches which became the subject matter of the attack made by Mr. Fischer and Mr. Kentridge. They urged the Court to find that a speech not published, or a written or printed document neither dis-seminated nor distributed, could not offend against sec-tion 11(b) of the Act, as the essence of the charge, so the argument ran, was that the words 'advocate, advise,

£ defend or encourage' connotated the exercise of puCrsuasion directed to the minds of human beings. This submission^ coupled^ of course^ with the Crown's attitude on the to-tality of speeches and documents was, in our view, the crux of the case.

It will be necessary to examine the relevant section which reads:-

"11. Any person who-

(b) advocates, advises, defends or en-courages the achievement of any such object or any act or omlseion which is /1175.

-1175- /

which is calculated to further the achievement of any such object; shall "be guilty of an offence."

The Oxford English dictionary gives the following meaning to the four relevant verbs

"advocates" is 'to plead, to raise one's voice in favour of, to defend or reoommend publicly" and "advocating is 'the action of publicly defending, main-taining or standing up for' "«

"advises" is "to give counsel to, to give advise "

"defend" is "to support or uphold by speech or ar-gument, maintain, vindicate, to speak or write in favour of";

"encourage" is "to stimulate (persons or personal efforts), by assistance, reward or expressions of favour or approval

In their ordinary meaning, therefore, it can forcibly be argued that each of these words relates to so#mghuman act directed towards, or made in relation to a person or persons - in other words, they contemplate a communication to an audience. But Mr. Hoexter, while conceding that this was a possible construction of the act, urged us to say that the postulate of a live and immediate audience /1176.

-1176- /

immediate audience was artificial and contrary to the wor-ding of the section; he submitted that the word "advocacy" (the one word is used for the sake of "brevity ) resided in the act of writing or printing, provided a mental state existed to use the document in the future in the achievement of the prohibited object, and he argue^ that, if the legislature had in mind the concept of a direct human communication, the words "any person" or some such suitable term would have been added after "advocates, advises, defends or encourages". We are doubtful about this proposition, as it seems probable, having regard to the choice and combination of the words in question, that the legislature intended their ordinary grammatical meaning to be applied to them It is unnecessary, however, for us to, decide what the law-maker had in view, as it is olear that the Act is reasonably capable of two meaning®. Tke rule of construction, discussed at some length in Rex vs Milne and Erleigh (7) 1951(1) S.A.g^. 791 at 823(A,D.) that where, in dealing with criminal and penal statutes "a penal statute is reasonably capable of two constructions, the Court will give it the more lenient construction which avoids the imposition of a penalty" must be applied.

For this reason we quashed the charge,

We must finally deal with the attack directed against the second alternative charge, which alleges that the accused, acting in concert and with com-mon purpose, 'performed certain acts' which constituted a contravention of section 11(a) of Act 44 of 1950, as amended /H77.

-1177- /

amended, The acts which they are alleged to have per-formed are enumerated in the "body of the charge and include the following:- they^the accused

"did possess for purposes of dis-tributing or disseminating- the contents thereof certain books, "brochures, pamphlets and other documents (particulars whereof are set out in Schedule D to the main charge)".

The other acts averred, which need not be set-out in de-tail, consist in the convening of meetings, the making of speeches and the writing and publishing of documents.

In response to a Request for Puther Particulars seeking to "be advised which acts of the ac-cused constituted the performance of an act in contra-vention of the provisions of the statute, the Crown said: "All the acts taken together." This gave rise to the following contentions:-

If mere possession of a document, even though for purposes of disseminating the contents thereof, could not juriidically be said to constitute 'the per-formance of an act," within the meaning of the statute, then the form of the reply furnished "by the Grown -namely, that all the acts of the accused taken together (thereby meaning and including possession by all the accused )/ll78.

-1178- /

accused of all the documents) constituted 'the act of performance', the indictment could not he said to disclose an offence; furthermore, it was pointed out that ex facie the indictment read with the further particulars, the all

acts could not logically he 'taken together' because different accused could only have acted in 'concert and common purpose' at a later stage than others; they did not address the same gatherings at the same place or time. These considerations, it was said, rendered the indictment fatally defective.

We do not think it necessary to deal with the contention in detail. It suffices to state for present purposes that we have seen fit to order further particulars for the following reasons:-

We are presently of the view that, if the 'acts' relied on by the Crown in its endeavour to secure a conviction against the accused, are all the acts of all the accused taken together, the contention that this part of the indictment should be quashed, might well succeed. If, however, in so far as eaDh accused is concerned, the 'acts' are the sum total of the acts of that accused, other considerations might arise. In having ordered the supply of Further Particulars to com-pel the Crown to clarify the position., we are not unmind-

i ful of the fact that Mr. Hoexter, for the Crown, never suggested that the latter of the two meanings was conten-ded for; accordingly, if the Court had proceeded to quash this portion of the indictment for that reason, the Crown could /1179.

-1179- /

Crown could not have complained. On a closer perusal of the form of the question and the reply thereto, we have come to the conclusion that ambiguity, in the sense that 'all the acts taken together' might refer in the case of each accused to 'all the acts of that individual ac-cused' as opposed to 'all the acts of all the accused', was not eliminated. In the event of the Crown intimating that the latter is the true meaning, the defence might renew its application to quash the indictment; in the event of the former meaning being accorded to the words, we desire further argument on this question whether the charge discloses the commission of an offence.

The distinction to be drawn between the first and the second alternative charges and which results in a conclusion that the first charge stands to be quashed even if the words in question relate to 'all the acts of an individual accused', lies in this:

On the meaning of the words 'advocates, advises, defends or encourages' as used in section 11(b) of the Act, even if the acts of an individual accused are to be taken together as constituting the act . of 'advoca-ting', it appears from Schedule C to the indictment that the accused, to take but one example, addressed different gatherings on different dates - and never presented the same audience with 'all his acts taken together' - with the result that he could not have been 'advocating' in terms of- section H(*>) o f t h e Ac_t- T h i s result does not necessarily follow when the words in section 11(a) of the Act /1180.

-1180- /

of the Act fall for consideration, viz. 'the performance of an act calculated to further the achievement of' communism. It might be contended that possession of a document coupled with the making of a speech based on the contents of that document, might constitute the performance of an act in question - a matter which we have seen fit to leave upen and which calls for further argument.

If the indictment is not to be quashed, the defence, in our view of the matter, was clearly en-titled to the remaining particulars we have seen fit to order. We do not think any gootff purpose can be served by giving our detailed reasons. suffices to state that the authorities to which Mr. Fischer made reference, in particular Williams vs The Bishop of Salisbury, Vol. 2 Moore's Privy Council Cases, New Series, 1863/5> 375 at p. 376 are in point and influenced us to make the order in this regard.

/r©/1 CXa m fit fL .

F. R U M P F F JUDGE OP THE SUPREME COURT

A. A. K E N N E D Y JUDGE OP THE SUPREME COURT

S. B E K K E R. JUDGE OP THE SUPREME COURT.

Collection: 1956 Treason Trial Collection number: AD1812

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