Pages 2447 - 2460). · 2012. 10. 25. · - 2453 - SENTENCE of the Landrover seriously injuring the two policemen con cerned. The explosion caused the Landrover to burn out completely

,m THE SUPREME COQ.g,T OF -tlOUTH AFRICA", (TRANSVAAL PRPVINCIA~ DIVISION)

.QASE NUMBER: CC.431L77. - 'PRETORIA , 7th APRIL... l.9'18 ..

THE STATE VERSUS: MOS IMA S EXWALE AN D -ELEVEN OTHERS.

--_._-----.......... --

VOLUME 50

(Pages 2447 - 2460).

------.-...... --.

- 2447 - SENTFNCE

THE COURT RESUMES ON THE 7th APRIL, 1978.

SENTENCE

MYBURGH. J.: Accused nos. 1, 2, 3, 4, 6 and 11 have been

convicted on the main count. The State has proved beyond all

reasonable doubt that they had committed certain terroristic

acts with the in tent to endanger the maintenance of law and

order in the Republic in furtherance of the ANC conspiracy

to overthrow the Government of the Republic of South Africa

by violent means. These acts so committed by accused no.l

were Acts A(l), (2), (3), (5), (7), (9) and (10). By accused (10)

no.2 the Acts B(l), (2), (3), (4), (5), (6), (7), (8) and (9).

By accused no.3 the Acts C(l), (2) and (5). By accused no.4

the Acts D(l), (4), (5) and (6). By accused no.6 the

Acts F(2), (3), (8) and (9). And finally by accused no.ll

the Acts K(2) and (4).

These acts have all been fully described in the judgment

and the circumstances surrounding them.

The evidence and arguments in mitigation of sentence

were not because of any repentance by the accused for what

they had done. Mitigation in this case is sought on the (20)

basis that what was done flowed from the frustration which

had been caused by the failure to bring about the changes in

society which had unsuccessfully been sought by peaceful means.

These changes according to the statements and evidence were

for what was said to be a more just society. Accused nos. 1,

2 and 6 each falteringly struggled through the reading of an

eloquently drafted ~yped statement from the dock on which

they could not be cross-examined.

From the statement by accused no.l, in which he sets

out his grievances and history fully, I read the two con- (30)

cluding paragraphs: I"'~ .. T nr~ /

- 2448 - SENTENCE

'~y Lord, these are the reasons why I find myself

in the dock today. When I joined the ANC I realised

that the struggle for freedom would be difficult

and would involve sacrifioes. I was and am willing

to make those sacrifices. I am married and have

one child, and would like nothing more than to

have more children, and to live with my wife and

children wi th all the people in this c oun try. One

day that may be possible, if not for me, then at

least for my brothers.

I appreciate the seriousness of my actions and

accept whatever sentence may be imposed on me. That

is the sacrifice which must be made and I am willing

to make for my ideals. There is no doubt in my mind

that these ideals will triumph: the tragedy is that

it seems possible that there will be continued con-

flict and resultant bitterness before thos e ideals

are achieved. As I look back, I cannot honestly say

that I believe the decisions I took, which led me to

(10)

this position, were wrong: what I regret most, was (20)

that it was necessary and inevitable that those

decisions had to be taken."

This is a case of a person who does not seek gain for

himself but is dedicated to his ideals.

I also read two paragraphs from the statement by accused

no.2 in which he similarly sets out his grievances. These

paragraphs are the following:

liThe question of armed struggle seemed to me to be

unavoidable and regrettably the only way out as far

as I was concerned. That was so because of the un- (30)

compromising attitude of the people who governed us.

T wi l li •••

- 2449 - SENTHfCE

I will never cease to admire the courage of those

South Africans who were prepared to take up arms

to rid themselves of unwanted British imperialism."

And then the concluding paragraph:

"Last, but not least, I wish to make clear to the

Court that what I did, I did with my eyes open. By

so doing, I was merely trying to make my contribu-

tion towards a free and democratic South Africa,

free of racism, humiliation and exploitation, a

South Africa belonging to all who live in it, (10)

regardless of race, colour or creed. To th~s ideal

I have given myself and whatever the consequences I

accept them."

He is similarly a man fighting for his ideals and not

for any form of personal gain.

Against this background I was referred to the judgment

by Van Zyl, A.J .F. in the case of S v Budlender and Another

1973(1) S A 264 from which I quote the relevant passage at

page 268 B which reads as follows:

"I said here that one must also look at the nature of (20)

the offence - I said the seriousness and I also said

the nature of the offence. One must remember that

it is a political offence, and one must remember

that the people who commit political offences are

frequently people of high political morals and ideals

who commit these offences not for personal gain but

because of the beliefs they have - things they may

believe in very strongly. An offence of this nature

carries for a certain section of the community little

or no social approbrium. It may even carry approval. (30)

These are circumstances that can never be lost sight

of', I ...

- 2450 - SENT~CE

of, because people committing this kind of offence

have loyal supporters, people who sympathise and

agree with them, and these are all circumstances

that have got to be weighed when determining the

nature of the bail bond that must be given. This

is not something new in South Africa. Anyone of

us who cares to turn back the pages of history will

find that these circumstances have applied at one

time or another to practically every race and language

group in this country. But it has always been the (10)

duty of the Courts to try and sit with cool heads,

with the necessary humanity, to see that people

who have transgressed on account of their differences

are not unnecessarily harshly dealt with. If anyone

of you would like to see what the attitudes of the

Courts has been in this sort of matter, I would

commend to you the judgments of Sir James Rose-Innes

and Sir William Solomon when after the Boer War

they agreed to the admission of Mr. Krause to practise

as a barrister in the Courts of the Transvaal." (20)

Of course it is known the famous judge he ultimately became.

That case is not comparable to the present case.

I was also referred to the passage in Van der Linden

Laws of Holland, Part I, Book II, Section 5. I quote from the

translation by J. Henry, page 318:

"Sedi tion: Public Tumult or Violence.

In the first place, under this head of crimes, we must

rank the crime of Sedition. That is, the committing

acts of violence and force, by which the public order

and tranquillity i9 endangered, and the au thori ty of

the public officers and magistrates attacked or set (30)

Rt. dpfi ~nce. A~ this offence may be committed by

- 2451 SENTENCE

divers acts and ways, so is the punishment also

various. In very grave cases it may be death,

though it mostly is limited to corporal punishment,

imprisonment or banishment. In times of political

trouble when these commotions are at their highest,

the government generally provides against them by

special laws, wherein the punishment is declared.

Of these there are repeated instances in our times."

I may mention that in our case the punishment prescribed by

the Act I am dealing with has a minimum of five years imprison-(IC

ment and a maximum of the death penalty.

"As, however, this crime frequently originates in

the different opinions entertained by men respecting

the government of the state, particularly when it

has been disturbed by political changes and revolutions,

there is scarcely any offence in regard to which it

more behoves the judge to exercise the greatest

prudence to the end that as on the one hand he may

preserve and maintain peace and good order so on

the other he may through excessive severity, render (2C

any of the unfortunate victim of political. dissentions."

It is to be noted that he refers to men respecting the

government of the state which hardly applies to this case.

The suggestion however of prudence and warning against exces-

sive severity I heartily support.

I have been referred to numerous sentences imposed which

range from the death sentence to sentences varying from 25 to

4 years imprisonment which could possibly serve as guidelines

for the proper sentence in this case.

The principles to be applied in relation to sentences (30)

are not in dispute. The problem in practice is to arrive at

t'h ,,/ •.•

- 2452 - SENTENCE

the correct balance between all the relevant considerations

affecting the accused, his deeds and society.

Father Tutu, presently the Secretary-General of the

South African Council of Churches has testified in support of

the contentions on behalf of the accused, corroborating the

feelings of frustration which I have referred to above. He

spoke about his travels to many countries and having seen

armed struggles in different places. He also made the remark

in reply to a question by Mr. Van Pi ttius that in many instances

an armed coup, especially in Africa, led to a position of (10:

less freedom than there had been under the British rule.

The State has asked f 'or the death sentence, specifically

in respect of accused no.l and no.2, referring to the Border-

gate explosion and the sabotage of the railway line at Dikgale

north of Pietersburg. These instances I have described fairly

fully in the judgment I delivered in this case.

The accused have been in detention since the end of

1976 and have had to stand trial first before Davidson J. for '

some four months and now before me. These are in my view all

relevant considerations affecting the sentence to be imposed. (20'

Accused no.l is 25 years of age and a first offender.

He is an educated person. He became dedicated to the cause

of the ANC for the reasons set out by him in his statement

read from the dock to which I have briefly referred above.

His acts can thus be summarised:

After he had received military training in Russia he

returned to South Africa as one of a group of four terrori s ts.

This incident was fully described in the judgment and I do not

propose repeating it at this stage. When he was confronted

by the pol ice and taken in a polic e Landrover to the (30

Bordergate, he threw the Russian handgrenade into the cabin

of the I ...

- 2453 - SENTENCE

of the Landrover seriously injuring the two policemen con-

cerned. The explosion caused the Landrover to burn out

completely and some eighteen unexploded Russian handgrenades

were found on and in the vicinity of the burnt out Landrover.

Fortunately, the shrapnel from the cover of the handgrenade

did not penetrate any vulnerable parts of the bodies of

Sergeant Khosa and Constable Brits. It was I think justi-

fiably argued that he did not intend to kill when he could

easily have done so had he such intent, because at that

point of time the two policemen having been seriously injured (10

were completely at his mercy. He acted, however, with

reckless disregard of injury to them. He retreated from

there and later again came across the border with other

terrorists, armed with a Scorpion machine gun. Back in

South Africa he stayed at 124, 7th Avenue, Alexandra, to which

I have referred as the "terrorist den". Thereafter he in-

structed various persons in the use of firearms, admittedly

on an elementary basis.

It was on these proven acts and the said intent to

disturb the law and order that the State strenuously urged (20 '

that the death penalty be imposed in this case.

Accused no.2 is presently 22 years of age and also a

first offender. He similarly became a dedicated supporter to

the ANC cause for similar reasons as accused no.1. These

reasons were based on the failure, so it was said, to obtain

a more just societ,y as testified to by him in terms of his

statement. He had also been trained in Russia. He entered

South Africa armed and after having reconnoitred the railway

line north of Pietersburg at Dikgale he effected two explosions

on the line. The third effort was detected before the (30~

explosion occurred.

ThA e~loRions/ • • •

- 2454 - SENTENCE

The explosions were not of sufficient force to cause

any derailmen t, serious damage or injury to any person. In

his statement from the dock he explained the incident in

detail which differed to some extent from the expert witness-

es, giving as his reason for the rather ineffective operation

that he did not intend to kill but rather then to draw atten-

tion to their struggle. After this incident he retreated

to Swaziland and returned to South Africa and also stayed at

the "terrorist den". He instructed a number of persons on

various occasions in the use of firearms. I must say these (10

instructions seem to me to be of rather an elementary nature,

and being no more than merely to demonRtrate the weapons.

He made a long statement to the police which was read

by agreement during the trial. In that statement he described

the acts he had done and the circumstances under which he

travelled from time to time.

Accused no.3 is 45 years of age and also a first

offender. Counsel was not able to put anything substantial

about his background before me. He also had his military

training in Russia. He also stayed at the "terrorist den ". (20:

He attended a meeting with other terrorists and seems more to

have been the person in control of the weaponry and explosives.

There was no evidence that he trained others in the use of

firearms or explosives. There was evidence by one of the

State witnesses that he is a hard drinker and dagga smoker.

He was also a participant in the conspiracy but his motiva-

tions seem to be somewhat obscure. I accept, however, for

the purposes of this judgment, that he was also motivated on

the same basis as the others. He was also at the ANC camp

in Tanzania. (30,

Accused no.4 is 24 years of age and also a first offender.

H i ... / •••

2455 - SENTENCE

His motivation for taking part in the conspiracy seems to

be the same as that of accused no.l and no.2. He similarly

stayed at the "terrorist den". He secretly entered the

Republic from Swaziland and similarly trained various persons

in the use of firearms. He was ultimately arrested at Nebo,

Sekhukuniland, and had in his possession at that stage a

Scorpion machine pistol, a Tokarev pistol and a handgret1ade.

The firearms used by all these accused to instruct others

were like those found in the possession of accused no.4.

They were Scorpion machine pistols marketed in Czechoslovakia, (10:

Tokarev pistols manufactured in Hungary or Communist China.

The handgrenades were of Russian origin, and the explosives

found at the various places were for homemade arson explosives.

These have been fully described in the judgment and it is

not necessary that I repeat it all.

The accused all made use of false travel documents.

The acts were as wide apart as Bordergate near Komatipoort,

Dikga1e north of Pieters burg and mostly in the townShip of

Alexandra in Johannesburg.

Acctlsed no.6 is 68 years of age and lived at 57, 11th (20)

Avenue, Alexandra. He was sentenced on the 26th of Febru~ry,

1964, to ten years imprisonment in terms of Section 11 of

Act 44 of 1950. He was released, so I was informed, during

February, 1974. During 1976 he became involved in these

terroristic activities. He seemed to have been in charge of

the ANC funds. From June, 1976, to December, 1976, this

accused received from persons in Swaziland with ANC connections

a total sum of some R7,500. These he had arranged with the

ANC persons in Swaziland. He also arranged transport for

some of the terrorists. His contact with the persons in (30)

Swaziland was at times by way of secret messages. There

a re I ...

- 2456 - SENTENCE

are many instances of his association with the persons at

the "terrorist den".

One of the occasions on which he arranged transport

for terrorists was when he sent one Norman Shabalala to

fetch the four terrorists who were involved in the Border-

gate explosi on.

Mr . Kuny who argued his case on mitigation stressed that

he was respected by certain State witnesses. Such an example

is the evidence of Victor Sithole and also that of Martha

Tseto. Apart from the other activities of the accused, (10)

Victor Sithole got the impression that he genuinely tried to

get him a scholarship. Similarly Martha Tseto informed us

that she regarded him as a fatherly person for whom she had

respect.

I quote certain passages from his statement read from

the dock:

"Politically I have many grievances against the

Nationalist Govern.men t but not against the Whites

as such. The Nationalist Government has made it

clear that no Black man shall enjoy the White man's (20)

green pastures. The Government has stripped the

Black man of all his possessions and introduced a

reign of terror against him."

An d then the final paragraph:

"I am a Christian and my Christian conviction is

one of love towards my fellow brethren irrespective

of race, colour or creed. As I am totally opposed

to oppression I have no reason not to support the

liberation movements in Southern Africa. Right shall

prevail. " ( 30)

His case having regard to his age and his previous

- 2457 - S]NTENCE

convictions, certainly poses a great problem in determining

what would be an appropriate sentence for him.

Finally, accused no.ll is not a young man. He was I

take it similarly motivated as the other accused. To under-

stand the type of person he is, I must refer to his long list

of previous convictions, which bears on his personality.

These include theft, housebreaking (shop Rl,155), and about

three convictions under the Liquor Act. According to the

evidence Which we heard in this case he was a shebeen keeper

at 50, 6th Avenue, Alexandra.

These do not seem to refer to his personality as rele-

vant to this case. He has, however, a conviction for posses-

sing an unlicensed firearm, and there are three convictions

for assaults involving firearms. Some of these were against

Black people and some of them were against White people.

One of the acts found proved again st him was that he

gave accommodation to the terrorists at the said "terrorist

den". He was in possession at a stage of the following

one Tokarev

(10)

weaponry: Five Scorpion sub-machine guns;

pistol with magazine containing seven rounds; (20)

nine handgrenades;

three loose detonators for handgrenades, and other detonators

which I need not refer to; some TNT bars of explosives;

safety fuses; 610 mI. Glycerine; 122,5 gram potassium

permanganatej 50 grams potassium nitrate; 100 grams sulphur

and 27 grams silver ni trate.

The expert evidence dealt with the significance of

these items. This gives one some idea of the gravity of the

case with which I am dealing.

Finally, I want to refer to the often quoted judgment

by Holmes, J.A. in the case of S v Van der Merwe 1972(2) (30)

PH HI03. It reads as follows:

"T aP,rae / •••

•

- 2458 - SENTENCE

"I agree with the judgment of my Brother Jansen.

Punishment should fit the criminal as well as

the crime, be fair to the accused and to society,

and be blended with a measure of mercy. (See

S v Sparks and Steytler AD, 18th May, 1972). The

element of mercy, a hallmark of civilised and

enlightened administration, should not be over-

looked lest the Court be in danger of reducing

itself to the plane of the criminal; Compare

the remarks in S v De Bruin and Another 1968(4)

S A 498 AD.

True mercy has nothing in common with soft weakness,

or maudlin sympathy for the criminal, or permissive

tolerance. It is an element of justice itself.

As was said by this Court in S v Harrison 1970(3)

S A 684 AD at page 686 'Justice must be done

but mercy, not a sledgehammer, is its concomitant.'"

It must be noted that mercy is not a separate issue.

I was asked to take into account the exemplary behaviour

(10)

of the accused in Court, and their personalities. Only accused(20

no.l! of these accused gave evidence under oath, enabling me

to get some impression of his personality, which was not

favourable.

I have postponed the paSSing of sentence until today

to give me an opportunity to consider the problem of sentence.

I was urged by Mr. ChaskalsDn to understand the motivation of

the accused. I took it into consideration, their subjective

views, otherwise the sentences would have been very different

from what I propose imposing. I have weighed all the considera-

tions presented to me. (30)

The ANC conspiracy as alleged and proved to overthrow

the/ •••

- 2459 - SENTENCE

the South African Government by violence was and is a serious

offence, especially in the light of the proven acts of

terrorism against each of the accused in furtherance of

the said conspiracy.

Finally, in my view, if I were to accede to the State's

request urged on my by Mr. Van Pittiu6 and impose the death

penalty, I would be committing an error of judgment and

be lacking the cool head Which the circumstances require of

me. Again, on the other hand, if I were to impose light

sentences, it would be ignoring the seriousness of the

offences and t he realities thereof.

Having had regard to all the relevant considerations,

the following sentences are appropriate:

ACCUSED NO.1 IS SENTENCED TO EIGHTEEN YEARS' IMPRISON-

ACCUSED NO.2 TO FOURTEEN YEARS' n~PRISONMENT;

ACCUSED NO.3 TO TWELVE YEARS' n~PRISONMENT;

ACCUSED NO .4 TO TEN YEARS' Th1PRISONMENT;

ACCUSED NO .6, THE OLD MAN, TO A SENTENCE OF ONLY SEVEN

(10)

YEARS' IMPRISONMENT; (20)

ACCU SED NO .ll IS SENTENCED TO TWELVE YEARS' IMPRISONMENT.

MR. V)J{ PITT IUS : My Lord, I would just ask for a confiscation

order in terms of Section 58 of the Criminal Procedure Act,

for all the firearms and all the articles listed in fue list

of exhibits. I understand my learned friend, Mr. Chaskalson,

would like to make an application that the typewriter and the

book by accused no. 10 ••• (intervention).

BY THE COURT: Is that the one that contains what I referred

to as the man with some talent for poetry. Yes, that can be (30)

returned to him, and the typewriter can be returned to accused

no.12. I ...

no.12.

MR. VAN FITTro S:

order, My Lord.

MYBURGH, J.:

- 2460 - SENTENCE

The other articles I ask for a confiscation

COURT ORDER

The other articles are forfeited to the State

in terms of the relevant section.

Collection Number: AD1901

SOUTH AFRICAN INSTITUTE OF RACE RELATIONS, Security trials Court Records 1958-1978

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