DISEÑO BÁSICO DE UN TROQUEL PARA LA PRENSA ALFONS HAAR

High treason consists in any act or omission within or outside the borders of the Republic of South Africa by a person owing allegiance to the Republic, with the intention unlawfully of overthrowing, coercing or endangering the existence, independence or safety of the Republic.

Elements of the crime: The elements of the crime are the following:

♦ _{the perpetrator: this means somebody who owes allegiance to the Republic} ♦ _conduct

♦ _unlawfulness ♦ _{hostile intent}

The Perpetrator

Only a person owing allegiance to the Republic of South Africa can be guilty of high treason (Tsotsobe 1983 (1) SA 856 (A); Magxwa-lisa 1984 (2) SA 314 (N).

♦ _{South African citizen}

♦ _{People who are domiciled here}

♦ _{People who are resident here even though they do not intend staying here permanently.}

The conduct

Any act or omission engaged in with the required hostile intent (animus hostilis, see below) constitutes high treason. The act need not necessarily consist in violence, either actual or contemplated, against the state (Mayekiso 1988 (4) SA) 738 (W)).

Unlawfulness

It is this element of the crime which ensures that a member of the opposition who strives for a change in government or amendment of the constitution does not commit high treason provided that he attempts to effect these changes in a constitutional manner (Banda supra 474). A ground of

justification of particular importance in time of war is compulsion. In this case the general principles governing compulsion will apply (see general principles) (Vermaak (1900) 21 NLRD 204).

56

Intent

The requirement of intent expresses the essence of the crime of high treason the intent required for high treason is known as hostile intent or animus hostilis. What constitutes this intent?

EXAMPLE

♦ _{supports the enemy by, for example fighting for the enemy against South Africa (Vermaak} (1900) 21 NLR 204; Leibbrandt 1944 AD 253), or

♦ _{assist the enemy by fighting on the side of that enemy against another of its enemies (Mardon} 1947 (2) SA 768 (Special Court)), or

♦ _{provides invading forces who have occupied the country with food, housing, or military} equipment (Gowthorpe (1900) 21 NLR 221)

♦ _{accepts a post in the service of such forces, for example, as an interpreter (Randelhoff (1901)} 22 NLR 59), or a military cook (Done (1901) 22 NLR 175).

♦ _{the organization of or participation in an armed rebellion against the government (De Wet} 1915 OPD 157)

♦ _{inviting a foreign power to invade the country (Phillips (1896) OR 216 – this was the Jameson} Raid)

♦ _{taking up arms in an attempt to force the government to act in a certain way (Erasmus 1923} AD 73; Viljoen 1923 AD 90)

2.2 Sedition

A person commits sedition if he unlawfully and intentionally:

♦ _{Participates in a concourse of persons violently resisting or challenging the authority of the} state, or

♦ _{Causes such a concourse}

Elements of the crime. The elements of the crime are the following: ♦ _{participation in or causing of a concourse of persons}

♦ _{to offer violent resistance to or to challenge violently the authority of the state} ♦ _{unlawfully and}

♦ _{intentionally}

Differences between the two crimes may be distinguished:

♦ _{High treason requires a hostile intent (animus hostilis, the definition of hostile intent in the} discussion of high treason above); sedition requires no such intent; all that is required for sedition is intent to resist or challenge the authority of the state.

♦ _{High treason may be committed by a single individual; sedition can only be committed by a} group or number of persons.

♦ _{High treason can only be committed by a person owing allegiance to the Republic; sedition} can be committed by a person owing no such allegiance.

In Twala 1979 (3) SA 864 (T) eleven persons were convicted of sedition. They were student leaders in Soweto who organized unlawful gatherings and demonstrations. Their initial aim was to abolish the whole system of education for blacks, demonstrations turned into riots and bloody clashes with the police, in which there was loss of lives and damage to property. The court found that the accused had foreseen these results of their action. At page 869 the course defined the crime as follows: “A

gathering which is unlawful, with intent (not necessarily hostile) to two persons were sufficient to cause a gathering for the purposes of sedition, and also that no violence is necessary to commit the crime.

57 In Zwane (3) 1989 (3) SA 253 (W) the accused were convicted of sedition on the grounds of inter alia the following conduct: in a certain residential area, they established a so-called “people’s court” in which alleged “law-breakers” were tried and also punished by, for example, the imposition of corporal punishment. In this way they undermined the authority of the state.

Note that an individual acting alone cannot commit the crime. 2.3 Public violence

Public violence is the wrongful and intentional performance of an act or acts by a number of persons, which assumes serious proportions and is intended to disturb the public peace and order by violent means, or to infringe the rights of another.

Elements of the crime: The elements of the crime are the following: ♦ _{an act}

♦ _{performed by a number of persons} ♦ _{which assumes serious proportions} ♦ _{which is unlawful, and}

♦ _{intentional, and more specifically, included an intention to disturb the public peace and order} by violent means, or to infringe the rights of another.

3.

Crimes against the administration of justice