23762.

any plans arranged between him and the other parties,

he would not be liable to be found guilty upon the

charge of conspiracy. Gentlemen, in conspiracy it

is by no means necessary to prove actual meeting

together. If the circumstances are such as

imperiously to call upon you to say that they could

not have occurred but in pursuance of previous con-

spiracy and plans between the parties, then that

implies that there must have been such previous plan

and therefore will entirely warrant the conclusion

of conspiracy."

My Lord, I have submitted these proposi-

tions. I submit that they are amply borne out by these

authorities, and unless Your Lordships require argument

on any one of the propositions, then My Lord I will

pass over to another part of the argument. 3 ?

My Lord, in Part B, the acts charged

against each of the Accused is an act of agreement.

One act, My Lord, that is made quite clear from the

amendment which the Crown sought. Nov; my learned friend

in the course of his argument, my learned friend Mr.

Trengove, refers to the Judgments of Justice Holmes

in the case of United States against Kissel . He made

that reference at page 18378 of the record, and he

quoted a statement by Mr. Justice Holmes that a

conspiracy may be a continuing process. And he quoted

Justice Holmes as saying, " I t is true that the

unlawful agreement satisfies the definition of the

crime, but it do^s not endorse - but it does not exhaust

it." Our submission is , My Lord, that in this case

23763.

sofar as the overt act is concerned, the unlawful

agreement does exhaust the crime. What the Grown has

alleged is an act of agreement. And what it must

prove is an act of agreement, an act Toy eaiSh of the

Accused that he entered into a treasonable conspiracy.

Now I have submitted that a treasonable conspiracy is

a conspiracy to commit treasonable acts. What the

Grown must allege and prove is an agreement between

the conspirators that they would commit acts which

constitute the crime of high treason. Because treason

is committed by overt acts, and the conspiracy to

commit treason is entered into when th^re is an agree-

ment to commit overt acts, treasonable acts.

Your Lordships have already held that

the conspiracy charged ho re was a single conspiracy,

and the terns of that single conspiracy are set out in

sub-paragraph (a) and sub-paragraph (b) of paragraph

1 of Part B of the Indictment. This is the conspiracy

with which the Accused aro charged, The overt acts

with which they aro charged in Part B is the act of

agreeing to do the acts set out in paragraph 1 . These

w e r t h e agreed aims which Your lordships have held

the Grown has alleged would remain f ixed , constant and

static throughout the whole indictment period. That

appears from the Judgment of the Court in the case

of Adams, reported in 1959 (1 ) S .A . 64-6 at page 658,

at ( h ) . "The answer supplied by the Grown in paragraph

2 ( c ) ( i ) at page 2 of the Furtiior Particulars, namely ;

The Grown alleges that throughout the period set forth

in the indictment th^re was a conspiracy which embraced

23764.

the achievement of the aims, purposes and objects

set forth in sub-paragraph (a) to ( f ) ( ? ) of sub-

paragraph 1 of Part B, which for the sake of

brevity we shall rv-fer to as the aim to overthrow

the state, make it clear that the Crown is relying

on a single conspiracy, the terms of which remain

constant and static throughout the whole period, and

that the only variable element was confined to various

persons joining the conspiracy at various times."

Then at page 660, ( a ) , "Mr. Trengove

emphasised the fact that the Grown alleged and sought

to rely on a siggle conspiracy, the aim of which,

namely to overthrow the state, remains constant

throughout the period in question. As far as paragraphs

2, 3 and 4 of I art B of the Indictment are concerned,

he said that ci-lMiough they open with the words ' I t was

part of the said conspiragr§r', they do nothing more

than to proclaim or make known the end whereby the

fixed and constant aims of the conspirac3r, namely to

overthrow the staie, w^re to be achieved, and the

Court agreed with him."

Th^n at (e-)- he said, and this was also

accepted by the Court, that if the members thought the

time right or appropriate to employ such bodies,

bodies which came into existence, as and when or after

they came into existence, as the means for the achieve-

ment of their aims to overthrow the state, no new

conspiracy came into being, the original conspiracy

still remained unchanged and unaltered. And when

the means in paragraph 4 of ?art 3 were agreed upon,

23765.

no fresh or additional conspiracy was thereby created"

That appears from page 662, letter C. "Even i f the

terms vary from time to time or are made to vary in

consequence of a decision amongst some or all of the

conspirators, the concept of a single conspiracy

with its static aims is left untouched, and no frush

or additional conspiracy is thereby created. "

I t was argued, My Lord, in those pro-

ceedings that what the Crown was in fact alleging in

Part B was a number of ovurt acts. It was contended

that the Crown had alleged in paragraph 1 not only ?

the grand stand, the grand design as being the

conspiracjr, but that there were also various sub-

conspiracies alleged in paragraph 4 . But it was held,

and the Crown by its amendment made it quite clear

that there was one conspiracy only which was alleged,

one overt act only which was alleged, and that the

)

charge^against each of the Accused was their adherence

to the one conspiracy, the grand stand ( ? ) , the grand

design. And tho Crown did not allege that paragraph

4 was an allegation of other conspiracies or that

the accused committed overt acts by entering into

such other consrjiracies.

We submit, My Lord, that it would not

be sufficient for the Crown to prove an agreement on

all or any of the matters alleged in paragraph 4 of

Part B. What the Crown has to prove is the said

conspiracy, to use the words in paragraph 4, 'which

opens " I t was part of the said conspiracy" in (a) and

in ( b ) , "during the subsistance of the said conspiracy

23766.

That is the overt act with which the Accused are

charged, the said conspiracy which was a conspiracy

in paragraph 1, and it is to that overt act that the

Crown's proof must be directed.

"nd we submit that if the said

conspiracy, the conspiracy alleged in paragraph 1 of

Part B is not proved, then the agreement on means

alleged in paragraph 4 falls away.

CASE RjiMAHD^D TC THS 8TH MARCH, 1961.

COURT ADJOURNS.

(CONTINUED ON PaGE 23771)

23771

8 / v m

MR. NICHOLAS

MR. NICHOLAS: May it please your lordships,

yesterday I was referring to Part B of the Indictment

which alleged the conspiracy and I cade the submission

that the Overt Act which the accused were called upon to

meet was the overt act of entering into the agreement

which is alleged in paragraph I of Part B.

The allegation, ny lord, is that they entered

into the agreement in terms that the conspirators would

subvert and overthrow the State by violence and would

submit therefor a Communist State or some other State;

(b) Make active preparation for the achievement of the

objects set out in paragraph A .

The Crown has alleged therefore, my lords, an

agreement in general terms in which obectives only were

specified, namely the overthrow of the State, and the

substitution therefor of a different form of State.

The allegation in paragraph (b) , that there was

an agreement to make active preparation for the achievement

of the rain objects is necessarily implicit in A because

i f there was a plan conceived to overthrow the State

then it would necessarily follow that there was agreement

to take all steps including preparatory steps for the

overthrow of the State, A conspiracy to murder neces-

sarily implies an agreement to take steps which are

necessary towards that end.

But B, my lords, is not an alternative to

A , it is not expressed as being an alternative- what

is here charged is one conspiracy, a conspiracy to take

steps to overthrow the State. \7e submit, my lord, that

B is incapable of being read as an alternative to A .

I f no plan was conceived, i f no plan to overthrow the

23772

MR. NICHOLAS

State was conceived, it is difficult to understand how

there could be a plan, a plot, an agreement to prepare -f

for revolution. We can understand that people would say i

"We are prepared for revolution at some date in the future *

which is still to be fixed, but we are agreed on revolution",

but we cannot understand an agreement in which the parties

say "We are not agreed that we are going to make revolution

- let us now prepare to make revo lution" .

We submit, my lord, that what is here charged

is one agreement - an agreement to overthrow the State,

and as a necessary implication, which is here alleged, an

agreement to make preparations therefor.

BEKKE1I J; Well, conversely, if there is an

agreement to make active preparations for the achievement

of these objects, that is the conspiracy?

MR. NICHOLAS; Well, the conspiracy is really

an agreement to make revolution, my lord.

BEKKER J; Yes.

MR. NICHOLAS: There is just one conspiracy here

alleged, not two, my lord - an agreement to make revolution.

And the allegation i s , my lord, that the act, the agreement

was that the act would be performed by the conspirators,

not by anybody else. That is made quite clear in paragraph

2 of Part B where it is said that " it was part of the

conspiracy that the objects were to be achieved by the

accused, in their individual capacities and/or as members

or supporters of the associations and/or corporate bodies."

So that the conspiracy is that the accused were to make

revolution, my lord.

RUMPFF J ; Or they v/ould cause revolution to be

made.

25773

MR. NICHOLAS

MR. NICHOLAS; With respect, no, ny lords,

RUMPFF J: Why not?

MR. HICHOK.S; Because the allegation is that they

were going to nake a revolution.

RUMPFF J; They said the objects were to be achieved

- that is the overthrow by the accused.

MR. NICHOLAS; Those acts were to be done by the

accused.

RUMPFF J ; You nean personally?

MR. NICHOLAS; My lord, when people enter into a

contract they engage themselves personally.

RUMPFF J ; No, that 's not the question. Was the

agreement that they would personally - that each one of them

would personally help in the revolution, or on the face of

it would it be open to the construction that they night hire

somebody to do it for them?

MR. NICHOLAS: They undertook, my lord, personal

responsibility for carrying out the revolution.

RUMPFF J; Yes,

MR. NICHOLAS: And the agents are specifically

nentioned, namely the associations or the organisations,

but nobody else, my lord.

RUMPFF J ; Yes.

MR. NICHOLAS^ Now, ny lord, the Crown case as set

out in the Further Particulars is that this conspiracy is

to be proved by showing that the various organisations had

a policy to overthrow the ^tate, and that the accused, being

nenbers of one or other of the organisations, had knowledge

of and adopted that policy, and the question then arises, ny

lord, as to how the policy of an organisation is to be ascer-

tained. An organisation is a voluntary association of

23774

MR. NICHOLAS

people and it cones into existence as a result of the

agreement of its members; an association being an

association of people, has no mind of its own and is conse-

quently not capable itself of formulating a policy. I t ' s

r

policy or its objects must be found in the agreement of

•V

its members, and the policy, try lord, of an organisation

means no more than its agreed objects and its agreed

methods of attaining those objects. Where a political

organisation has a constitution, that constitution is the

written record - is the record of the agreement, and its

policy is to be found primarily in its constitution, and

thereafter in the decisions of the particular organ which

in terms of the constitution is entitled to take policy

decisions. That organ, the organ which in terms of the

constitution is entitled to take policy decisions, may be

a meeting, a general meeting of the whole membership, or

it may be some council or conference.

Now this was discussed, my lord, in the Judgment

of Chief Justice Wessels in the case of WiIkens a gainst

Brebner and Others which is reported in 1935 Appellate

Division at page 175. In that case the Court had to con-

sider the power of the Congress of the Nationalist Party

to alter its principles or to amalgamate with other Parties,

and at page 184 Wessels, C . J . says: " I n founding a

political party there is an implication that its principles

may be altered with thealtered circumstances, not only of

this country but with the changing world conditions.

Naturally, before a political party is formed the persons

#io set the ball rolling have some idea of the basis upon

which the party is to be formed, and as the desire to form

the party grows principles are more clearly formulated.

23775

MR. NICHOLAS

But everything is still in a tentative stage until the 1

party is actually formed and organised. No political

party exists until the intending members all meet, or send

delegates to represent them for the purpose of forming the

party and to determine how the party is to be governed, and

how its wil l is to be declared. This can only be done by ^

constituting the party and by determining how the party

is to manifest its will . That occurs when the constitution

of the party is drawn up and the relation of members to

the party machine is formulated. The rights of the mem-

bers then d epend on the constitution adopted by the party. 1 0

When this is done the party declares what the principles

are for which it stands and which will be, as it were, its

guiding s t a r . " '

That judgment, my lord, was concurred in by the

majority of the Court and it also makes it clear that when 15

there is a written constitution of a political party, a

political organisation, the power to alter the principles

of the party must be found by reference to that constitu-

tion. And this was not a technical or an academic

approach but a realistic one, a s appears from the passage 2 0

from the Judgment of the learned Chief Justice at page

181 in which he stresses that for practical purposes a

political organisation can only work through delegation

of powers to conferences or Councils. The Chief Justice

said "A political party of necessity consists of a very

great number of individuals scattered over a large area;

it is quite inconceivable that when the members agree

to form such a party they intend to meet as a body in

order that . . . . to consider what the party ought or

ought not to do. In order to judge what the rights of 3C

23776

MR. NICHOLAS

the individual member are over the governing bodies of the 1

party, we must not lose sight of the fact that we are

dealing with a political party. The nature of a volunteer

association is most important in deciding what the rights

are of an individual member. A political party is formed

for the practical purpose of furthering the political 5

objects of that party. These can only be attained by

constituting a party machine. The party machine will

therefore necessarily contain various agents or bodies

by means of which the propaganda of the party is spread

and these bodies must necessarily be controlled by a 10

supreme council. The presumption therefore that such

a cumbersome body as a political party intends with the

opinion of the individual members as to what ought or

ought not to be done by the party should be subservient

to the various bodies appointed to carry out the objects 1 5

of the party. The very nature therefore the political

party - an as ociation created for practical purposes -

would lead to the implication that the individual members

must subordinate his opinion to that of the supreme

Council. I f therefore a political party has a constitu- 20=

tion, that constitution must be interpreted so as to

give effect to the objects of the party."

Now, my lord, the Nationalist Party as it was

when that case was under consideration provided in its

constitution for a central committee with supreme oxecu- 25

tive power, and also for a yearly congress which was the

highest power in the party with the right to alter, or

add to the constitution, and in that respect it doesn't

apnear to be very different from the constitution of the

African National Congress.

23777 MR. NICHOLAS

Wessels, C . J . says in relation to the powers

of the Congress - I 'm quoting from page 182 to 3, ay .̂prcl -

"It is therefore quite clear that the members of the party

by its very constitution have entrusted to the yearly con-

gress the fullest powers of dealing with the interests of

the party. The Congress is as it were the parliament of

the party. It would therefore seem prima facie that the

members of the party have entrusted the carrying out of

the objects of the party to the various committees and

have given to the yearly Congress the plenary power of

altering the constitution of the party to suit the varying

conditions of the country. There is no provision by

which the individual member can make his voice heard,

As I have said there is no referendum. When we consider

that we are dealing with the constitution of a political

party it seems clear from the constitution that the indivi-

dual member has abdicated to the various committees and

to congress his individual right of determining what ought

and what ought no t to be done to further the political

propaganda of the party. He has left it to the yearly con-

gress to say what the party thinks the political conditions

of the country require the party to do,"

Then the learned Chief Justice went on to

point out that members were bound by the decisions of the

Congress, and elthough the point did not expressly arise

in that case i t ' s quite clear from the judgment that save

through the mechanism of the Congress members could not

alter the constitution.

Nov/, my lords, the principles laid down in

Wilken vs. Brebner were applied in the case of Kahn vs.

Louw and Louw which is reported in 1951 Vol.2 of the S.A.

23778

MR. NICHOLAS

Law Reports at page 194; i t ' s a decision of the Cape

Provincial Division. The point at issue in that case

was whether the Conmnist Party of South Africa had been

validly dissolved. That party was also a political party

having a written constitution. In terns of that con-

stitution, just as in the case of the constitution of

the Nationalist Party, there w. s a central committee

with executive powers, but the supreme authority and the

only authority with power to amend the constitution was

a National Conference, The Central Committee of the

Communist Party had purported to dissolve the party with-

out calling a National Conference, and it publicised

the dissolution which it purported to bring about, and

contended that no member had objeoted to such dissolution.

The Court held that the dissolution was quite invalid.

It was equivalent to a change in the constitution and such

a change could not be brought about save through a

National Conference as provided for in the written consti-

tution." DeVilliers, J ,P . delivered the judgment of the

Court which was concurrcd in by Newton Thompson, J and

Van Zvl J. referred to T7ilken end Brebner end then he said

at page 210 :

"The Judgments in the case just referred to

are unanimous as I read the case in the view that members

having subordinated themselves on the basis of contract to

the machinery created by themselves, are bound thereby,

whether by a vote taken unanimously at the Congress called

for that purpose, or by a majority. I find nothing in

the ce.se to suggest where amendments to the constitution

have provided in the constitution that individuals of such

a party throughout the country can merely of their own

23779

MR. NICHOLAS

volition individually and independently amend such consti-

tution by silent and unexpressed consent."

And the learned Judge refused to accede to an

argument which was pressed upon him - and I quote ->

" Individual members scattered far and wide throughout the

country could, without recourse to the provisions or re-

quirements of the constitution, validly dissolve the party

without calling any meeting, and that consent to such a

course must be inferred on the part of every member who

has failed to object to such a proposal." He reiterated

the members are banded together by contract based on

concensus and they are bound only to the terms to which

they agreed.

Now, my lords, this reference to concensus and

to contract is relevant to this case and in point in this

case. The conspiracy here alleged is nothing more than

an agreement, and an agreement entered into by means of

adherence, knowledge of the policy to an organisation.

I t ' s therefore relevant to see to what extent the members

have agreed to be bound by the decisions of their fellow

members. This whole case is about concensus.

Nov/ A .N ,C . members in joining the A .N .C . agreed

to be bound by the National Conference, and whether in

joining they impliedly or expressly made themselves party

to a treasonable conspiracy is the question which has to

be decided by the Court. But the crux of the case is

agreement, and consequently we submit that the judgment

in Kahn's case is completely in point. There the learned

Judge President knew that he was dealing with a political

party which the legislature had declared unlawful. Never-

theless he says at page 211 to 212 with reference to that

23780

MR. NICHOLAS

party, "The constitution of a voluntary organisation is

the Charter of the organisation expressing and regulating

the rights and obligations of each member thereof. In

relation to that organisation, to the constitution of

which he has subscribed, he is no longer a free and un-

fettered individual. He is a member bound by his agree-

ment and to that extent he has surrendered his powers of

individuality, Were it not so, the constitution would not

beworth the paper i t ' s written on, and the proceedings and

activities of the organisation would be attended by em-

barrassment and chaos. I have found no authority, and none

has been suggested, to justify a submission that a volun-

tary organisation with proprietary rights and l iabilities

- with a constitution agreed to by its members, can simply

disregard the provisions of that constitution and by

silent and unexpressed individual concurrence of members

dissolve into thin a i r . "

We submit, my lord, that that statement applies

directly to our own case. We submit that the Crown cannot

contend that this organisation, the A .N ,C . with an agreed

constitution, could in some way simply disregard the provi-

sions of that constitution and by silence and unexpressed

individual concurrence alter itself into a treasonable

organisation.

My lord, in Kahn's case there was some discus-

sion. . . .

RUMPFF J ; Do you suggest that i f in a certain

instance a number of members or the majority of members of

an otherwise innocent association either specifically or

by implication, agree to do something illegal , can they

form an association by themselves - from the original

23781

MR. NICHOLAS

association?

MR. NICHOLAS; As your lordship pleases, Our

submission is , ny lord, that the Crown having alleged

that it bases its case on the policy of an organisation

must establish the policy of the organisation; i t ' s

not enough for it to establish the policy of a number

of individuals - how many they may be, or how prominent

or how influential they may be in the Councils of the

organisation. The fact to be proved is the policy of

the African National Congress, and that must be proved

by showing - that must be proved by showing either a

duly passed amendmendment of the constitution, or by the

concurrence, the true and real concurrence of a l l the

members of that organisation, which is a point that I

now come to.

In Kahn's case, my lord, the question was

raised, whether in terms of the written constitution the

vonsent of every member could override the provisions of

the constitution in regard to amendments and so on. But

it left no doubt that if there was any power which could

override the constitution it could be nothing less than

the consent of every member. That appears from the report

of the case at page 211, my lord. Reading from letter

( f ) Had there been in the constitution, by which each

contracting member was bound, no power to amend the con-

stitution, or dissolve the Party, the applicant's conten-

tion that the concensus of a l l the members to dissolve

would have the effect of dissolution, would merit serious the

consideration. See Solomon against/Lodge, 1917, Cape

Provincial Division, 177. In such a case the consent of

all the members would be necessary for an amendment of the

23782

MR. NICHOLAS

constitution, and a fortiore for the dissolution of the

Party itself . The members are "banded together by contract

"based on concensus, and they are bound only on the terns

to which they have agreed. Such terns can therefore only

be varied by the consent of all the parties to the eon-

5

tract, that is a l l the nenbers. See Halsbury and Josephson

against the Committee of the Transvaal Hebrew Benevolent

Association."

RUMPFF J : I take it a written clause in the

constitution nay be abrogated?

MR, NICHOLAS: Well, abrogation, ny lord, is 1 0

really anendnent.

RUMPFF J: Yes, an anendnent not necessarily by

a resolution at a conference, but by an opposite point of

view taksn . . .

MR. NICHOLAS; With respect, no, ny lord, there

are two ways in which a constitution can be altered - two

possible ways; as provided in the constitution, or by the

unaninous agreenent of all the nenbers. There is with res-

pect no other way, ny lord, 20

RUMPFF J : Well, assune there is a political

party with a clause in its constitution that the party

is pro-Republican^ and that clause stands. Assune that

i t ' s an old party and assume it ' s a snail party, as there

was nany years ago in the Transvaal — a snail group who

perhaps called themselves the Republican Party - - forgetting

the name, assume there was a small party with that clause

in the constitution, ass ume that it had a couple of hundred

members and after thirty years, when the question of a

Republic becomes actual and there is a referendum, the 30 organ of the party and the leaders of the party speak against

23783

MR. NICHOLAS

the Republic in principle - not against a particular Repub-

lic but in principle - - everybody forgets conveniently

or on purpose, or by accident, that particular clause in

the constitution - - there is no which alters the

constitution, but from platforms the leaders speak against

the Republic, and all the organs - - I 'm putting it as

high as all that - - all the official organs of the party

speak against a Republic on principle, now at a given stage

- at a particular day, if one were to ask 'What is the

policy of that party about a Republic ' , how would one fix

that?

MR. NICHOLAS; One would ask, my lord, what is

the agreement recorded in the constitution. One would

ask has that agreement been varied as provided in the con-

stitution, or by the consent of all the members, and if

the answer, my lord, to those questions is 'No' then the

answer would be the policy of this party is anti-Republic

but its office bearers and its officials and its prominent

members are speaking to a policy which is contrary to the

policy of the organisation. One must look at it , my lord,

from the point of view of the individual member.

RUMPFF J: Assume then that that policy of anti-

Republicanism is by the leaders and by the organ - is

propagated for a number of years, and in the meantime con-

ferences are held and nothing is said about - - it is not

condemned, but i t ' s not specifically approved of by reso-

lution at a conference . . .

MR. NICHOLAS: One can reach a stage, my lord,

where on the facts it is established that there is a pas-

sive consent of all the membership to the change . . .

w

23784

MR. NICHOLAS

R1JMPFF J° That would depend entirely on the facts. 1

MR. NICHOLS ; Yes, my lord. And what each mem-

ber knew.

RUMFFF J ; Yes.

MR. NICHOLAS; It couldn't be taken that he had

consented to what he had not heard and didn 't know. My 5

lord, there are a number of cases . . .

RUMPFF J ; I 'm thinking of the point of view of

one member - the gentleman who never reads the paper arid

never listens to the wireless and sits down in the Bunga -

he 's got a small farm and is not interested in world 10

affairs and anything apart from his little farm - - and

he 's very pro-Republican and he is a member of the Party

but he has never attended any of the meetings. Then after

waking up, like Rip van Y/inkel, he suddenly finds that

his party has changed completely, as far as he is concerned, 15

and then he brings some sort of an action and says . . .

MR. NICHOLAS; Yes,he must succeed, with res-

pect, my lord,

RUMPFF J; Must he succeed?

MR. NICHOLAS; Yes, my lord, he entered into 2 0

an agreement, he entered into a contract; he entered into

a contract that his rights would be determined by this docu-

ment and that that document was not to be varied except

i n a particular way by the unanimous agreement of a l l the

members. 25

BEKKSR J ; There is no room for the unofficial

policy? Unofficial in the sense that it is opposed to

what is laid down in the contract - that being the official

policy, there is no room for any unofficial . . .

MR. JHCHOIAS; There is room for a secret policy,

23785

MR. NICHOLAS

ny lord, provided that i t ' s properly agreed to, but there

is no room for a policy determined otherwise than by agree-

ment., because if there is such a policy announced it is

the policy of the people who announce it and not the policy

of the organisation*

RUMPFF J ; On the hypothetical facts given to

you by ne, assume that for ten years this Party had its

conference every year and had pursued the policyin fact -

I say - of being anti-Republic - - to the knowledge of

everybody except this old gentleman - - he wasn 't interested

in his party any more, really. *.7ould you say that a

Court in those circumstances would find that in fact the

policy of the party was still pro-Republic? In fact.

MR. NICHOLAS; The Court would find that in

fact, my lord, the policy of the party had not been duly

altered, that the members were still bound by their original

agreement; an amendment for variation not having been duly

brought about, they're still bound by the original con-

tract.

RUMFFF J : You make the point that there is

a difference between the policy of the party and the policy

represented by anybody,

MR. NICHOLAS; Yes, ny lord,

RUMPFF J; You say there is a difference?

MR. NICHOLAS; Yes, my lord, . .

RUMPFF J: Because the policy of the Party

may not be one thing, but it may be represented and through

the public to be that thing.

MR. NICHOLAS; As your lordship pleases.

RUMPFF J ; By the leaders for instance; you

say there is a difference?

MR. NICHOLAS

MR. NICHOLS ; Yes, my lord. My lord, when

one refers to the policy of the organisation one refers

to the contract "by which the members have bound themselves

together and not by what is apparent to the public. And

this requirement of unanimity for a change in policy

otherwise than through the machinery provided by the con-

stitution has the authority of a number of decisions.

There is the c se of Coates and Cottrell vs. St.Johns Bene-

fit Society, 1906, 23 Supreme Court page 38 - at page 40,

Solomon against the Alfred Lodge, 1917, Cape Provincial

Division, 177 at pages 180 to 181, and Cape United Sick

Fund Society vs. Forest, 1956 Vol.4 of the S .A . Law Re-

ports, 519 Appellate Division at page 528. There St.Livres

C . J . says - 1 read from the bottom of page 527 of letter Hs

" I t is of prime importance to decide in the

first instance how to approach the problem raised in this

Appeal. The Society's constitution is in writing and to

use the words of Stratford J-A. in Y/ilken and Brebner we

have only to solve the quest.ion submitted to us to ascer-

tain the meaning of a written document according to the

well established rule of construction. This dictum is in

consonance with a long line of cases in which emphasis is

laid on the necessity of adhering to the terms of the con-

stitution of a body like a society. Where, for instance,

a constitutior does not provide for its amendments by a

majority vote, the amendments can only be made by the

unanimous vote of the members of the body concerned, and

if the members.:' rights are transgressed by a majority of

his fellow members the Court wil l come to the aid of the

dissentient member."

There are other cases, my lord; your lordships

23787

MR. NICHOLAS

will find a reference in Halsbury's 3rd Edition, Vol, 5,

page 259» paragraph 608, and Banford - Law of Partnerships

and Voluntary Associations, at page 96, my lord.

Then, my lords, in the Kahn case the point was

established that mere silence cannot amount to consent to

an unconstitutional alteration, I refer to the Kahn case

at pages 214 to 215, reading from letter G, "Apart from

this real difficulty in the way of a decision in the

Applicant's favour, and assuming for the purposes of his

submission the correctness of the facts deposed to , do

these facts establish that the only inference which this

Court can draw is that e ach and every member of the Commu-

nist Party of South Africa had expressly or by conduct con-

sented to the dissolution of the Communist Party? It was

argued that by conduct meant that as there had been no

protest or resignation by any member after (a) the news

of the dissolution had been published to the world on the

20th June, and (b) meetings of the various d i s t r i c t s , . . ,

had unanimously agreed to the dissolution, the absence

of such protest or resignation indicated a positive con-

sent by every member to the dissolution of the Party,

In view of the fact that Mr. Duncan concedes that there

was no duty on any member to speak, or to indicate yea or

nay, I find it difficult to appreciate the argument that

such member hr s by conduct - that is by failure to protest

or resign - consented to the dissolution of the Party,

It may well be that a resolution initially ih valid, and

indeed ultra vires, could be validated by the subsequent

unanimous agreement of all the members of the Party; that

indeed is the substance of Mr. Duncan's submission. How

2^788

MR. NICHOLAS

is this submission borne out by the facts deposed to, 1

assuming them to be correct, despite Respondent's refusal

to admit the correctness , . In view of the heavy

onus resting on Applicant to show that every individual

member had consented to the dissolution of the Communist

Party, can it be said that the allegations of the Appli- 5

cant should be held to be successfully discharged? There ?Y.

is no indication in the papers of the total membership

of the Communist Party, nor of the membership in each of

the seven districts; tte re is also no indication as to

how nany members attended each of the district general

meetings, or whether the result of these meetings were

circulated amongst all members to apprise absentees of

the result thereof. Indeed, except that it is alleged

that these members were duly convened there is no indica-

tion to show how this was done - whether by letter, circular 15

or advertisement, or that each individual member was given

notice of these meetings. Such information is peculiarly

important v/hen it Is conceded that the failure of only

one member's consent would destroy the foundation of the

submissions made. Some members may well have been over-

seas; one indeed was, but was alleged to have resigned

before leaving in 1949. Others may have been i l l or away

from their districts when these meetings were held; others

may have decided to nail their colours to the mast; many

may not have heard of the public statements despite its 2lj

widespread publication. When pressed on these points

requiring clarification allrecords were alleged

to have been destroyed prior to the dissolution of the

Party Counsel for Applicant could only reply negatively.

He conceded that only a small minority of members in each

23789

MR. NICHOLAS

district might have attended these meetings, hut contended

that in view of the widespread nature of the publication

of dissolution al l absentees, whether they had been notified

or not of the meetings, must have been taken to have con-

sented thereto". And then it was held: ; :In all the

circumstances the Applicant fails to establish that the

Party had been dissolved."

BEKKER J : Mr. Nicholas, assuming there is

nothing in the written policy, the written constitution

of the African National Congress authorising an alliance

with another body - assuming likewise in the case of the

South African Indian Congress - - nothing said about any

alliance - - but there is an agreement between the execu-

tives that they work together; from that stage on would

it be correct to say the policy,despite the fact that the

constitution is silent on this point - that the policy

of the African National Congress and the S .A . Indian Congress

is to work together?

MR. NICHOLAS: T7e submit not, ny lords; we

say that the two organisations are working together, the

policy is a question of agreement and unless there i s

agreement on the point by a conference resolution, or by

the unanimous consent of a l l the members, there is no

policy; there is simply unconstitutional action in working

together.

BEKKER J : 17e 11, would it be unconstitutional?

MR. NICHOLAS; That would depend on the con-

stitution.

BEKKER J: I f the constitution is silent?

MR. NICHOLAS: Then, my lord, one must look

at it in the light of the facts; i f the membership has qsrreed.

23790

MR. NICHOLAS

I f the membership has agreed to this activity, but in the

absence of agreement there can be no policy, ray lord.

Things can be done, but thre is no policy.

BEKKER J : You mean one may loosely describe it

as policy but as far as the law is concerned i t ' s not policy?

MR. NICHOLASi Yes, my lord; one would describe

it as what ie de facto being done, but policy always means

agreement; the agreement of the members. • .A

RUMPFF J; Where does the word policy come from?

MR. NICHOLAS: Policy the objects of the

State, which is established in the case of a State by its

Parliament or by its supreme council. In a democratic State

with the consent of the people.

BEKKER J : I f in the example I 've put to you

provision is contained in the constitution that the Pre-

sident General of the African National Congress may form

an alliance with anybody he pleases, and he does form an

alliance, then that would be policy? Delegated authority?

MR. NICHOLAS; Delegated authority, my lord, yes,

from the constitution.

Nov/, my lord, in the present case we submit that

there can be no question of the general consent of all the

members of the African National Congress to the adoption

of a treasonable policy, because, my lords, i f that decision

was taken in an unconstitutional v/ay, i f that decision was

taken otherwise than by a national conference, far from

receiving the widest publicity such as the alleged disso-

lution of the Communist Party, that decision must have been

kept a very close secret and it could not possibly have

obtained the consent to such a policy of every member, even

23791

MR. NICHOLAS

if the failure by individuals to protest could be held as

being equivalent to consent because we submit, my lords,

that any unofficial decision - any decision outside the

constitution - could not possibly be held to bind members

who are not proved directly-to be party to i t ; and if

there was such a decision it couldn't possibly be described

in our submission as the policy of the African National Con-

gress .

Agreement by all the members must be based on

actual knowledge. The authorities show that a member,

whether he knows it or not, whether he has read it or not,

is bound by what is contained in the constitution, and

the authorities also say that where a constitution &ives

to a body an amending power, amember, whether he knows of

the amendment or not, is bound by an amendment duly carried

out. A constructive knowledge goes no further than that,

and one cannot say that a member can be told to have con-

sented to a policy of which he didn't know.

My lord, in v/ilkens case Beyers J . A , , when he

held that not even the majority of the National Conference

of the Nationalist Party had the power to amend the con-

stitution in such a way as to go outside the basic prin-

ciples of the Party. There is authority, my lord, that

a majority decision, even though it has been reached in

terms of the constitution, may not be binding on the mem-

bers if it introduces an alteration into the objects of

the organisation, which is so fundamental that the members

when adhering to the constitution could not be said ever

to have contemplated so fundamental a departure. There

i s the case of Murray vs. Tattersalls; it is reported in

1910 Transvaal High Court, page 35, at page 41, There

23792

MR. NICHOLAS

Gurlewis J. says; " I f I be right in the view which I have

taken of the objects and purposes of this association, then

the Applicant cannot be compelled by a majority of the mem-

bers - no matter how great - to become a member of an

association or a club having a different object; he joined

a betting club and cannot now be forced by a majority to

become a member of a social club."

And that principle is also referred to in the

case of Van Rensburg . . .

RTJMPFF J ; I take it the result of a point of

view like that would be that the organisation, if it wants

to change its objects to that extent, would have to dissolve

itself and reconstitute, form a new organisation?

MR. NICHOLAS; As your lordship pleases.

And Van Rensburg against The A . T . K . V . 1941, Cape Provincial

Division, page 179, at page 185. But my lords, this pro-

position is not entirely clear. I refer to the case of

Fairham vs. Cape Town Mutual Aid Fund, 1949, Vol, 1 of the

S.A.Law Reports, page 919, the dedisxon of the Cape Provin-

cial Division at page 927. There Ogilvie Thompson A . J .

said, "Secondly, though the concept that the fundamental

objects of an association is not susceptible of alteration

the contention rejected in the Club case received

some recognition in Morgan and in our Courts,

and Van Rensburg against the A . T . K . V . I 'm not aware of any

decision where it has been expressly laid down that an

apparently absolute power of amendment must necessarily

- even in the absence of any additional elements - be

restricted to matters within the contemplation of the par-

ties when the contract was made". And the point is dis-

cussed in Bamford - page 97-, and Hallsbury 3rd Edition,

23793

MR. NICHOLAS

Vol. 5, at page 260, paragraph 610.

But we submitj my lord, that where one has a

political organisation the members of which have got to-

gether and reached an agreement to carry out political

objects, where such an organisation at a National Confer-

ence turns its back on the achievement of its aims by

political methods, and decides to discontinue lawful activity

and to adopt a course of legal activity, then the members

- to carry on its activities illegally and treasonably,

then i f such a conference should purport to amend a con-

stitution we submit that it would not be contended that

members who were not party to such an amendment could be

bound by it .

Such an alteration would be so incompatable

with the fundamental objects of the organisation, so in-

compatible with the basis on which the members had joined

the organisation, that non-consenting members could not

be held to be bound by -chat,

So that v/e cub mi t « my lords, that in the case

of an association th: policy must bo found in the agreement,

and where one has a constitution, where there is a docu-

ment which is proved to be the constitution, i f it is con-

tended that its policy h?.s become something else, then it

must be proved that there has been an amendment to the

constitution,; either. . . . . o r that there has been a

decision of policy by the organ which in terms of the con-

stitution has the delegated power of formulating policy.

In the case of the African National Congress - a conference,

a National Conference* In order to show that there has

been an amendment in the constitution it must be shown

that the amendment has been duly passed in accordance with

23794

MR. NICHOLAS

the provisions of the constitution, or it must "be shown

that there has been unanimous agreement of members to

such an amendment.

In our submission, my lord, it cannot possibly

be shewn that there is a unanimous consent of a l l the

members of the African National Congress to the adoption

of a treasonable policy.

We submit, my lord, that there is no material

on which the Court could find that there had been a duly

adopted amendment to the constitution so as to adopt such

a policy, and there is no evidence from which the Court

can find that a National Conference had adopted such a

policy.

We submit, my lord, that the Crown has failed

to prove that the policy of the African National Congress

was a treasonable policy, and we would emphasise, my lord,

that the Crown has made it quite clear that this is an

organisational conspiracy, It has pinned its colours to

the mast, it has said "We are going to prove this case by

proving that the policy of the organisations was a treason-

able policy". It must prove an organisational conspiracy,

it cannot prove its case by proving a policy of a number

of individuals, no matter how many there are, or how im-

portant they arer

My lord, my learned friend, Mr. Kentridge

will now continue.

Collection: 1956 Treason Trial Collection number: AD1812

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